Chapter VII
Last updated : 22/01/01
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Chapter VII
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CHAPTER VII
POLITICAL EXPRESSION AND THE ELECTORAL PROCESS
A. INTRODUCTION VII-2
Haig v. Chief Electoral Officer VII-3 Thomson Newspapers Co. v. A-G Canada VII-8
B. MONEY AND POLITICS VII-15
Can there be too much speech? Royal Commission on Electoral Reform and Party Financing (Lortie Commission) VII-15
Restrictions on Campaign Contributions and Expenditures Libman v. Quebec (Attorney General) VII-42 Somerville v. A-G of Canada VII-62
Reimbursement of Campaign Expenditures Re MacKay et al. and Government of Manitoba VII-75
C. PUBLIC SERVANTS AND PARTISAN POLITICS VII-80
Osborne v. Canada VII-80
D. AMERICAN JURISPRUDENCE VII-88
Buckley v. Valeo VII-88 Bellotti v. Baird VII-94 Austin v. Michigan Chamber of Commerce VII-99 Branti v. Finkel VII-108 A. INTRODUCTION
This Chapter examines the permissibility of regulations affecting political expression that is directly related to an election campaign or the electoral process. In the United States the Supreme Court has acknowledged a hierarchy of free speech values and indicated that restrictions on political expression will effectively be considered per se unconstitutional. See Meyer v. Grant, 486 U.S. 414 (1988). While the Supreme Court of Canada has acknowledged the importance of expressive freedom in a parliamentary democracy, the Charter jurisprudence is still in its formative stages. If pornography, defamation and hate propaganda stray from s.2(b)=s Acore@, does that place political expression closer to its centre? The Court has yet to answer that question. How would a conclusion along such lines affect the s.1 analysis?
Federal legislation imposes a variety of restrictions on participation in the political process. Key among them are the regulations which apply to broadcasting during an election campaign. Though those issues are not dealt with in this Chapter, the Introduction presents two examples of limits on political participation and access to information. The next section considers the permissibility of restrictions on campaign contributions and expenditures, as well as provisions for reimbursement of campaign expenses. There the question is whether too much speech is undesirable and can be restricted to Alevel the playing field@. Is it desirable, or even possible, to Aequalize@ voices in the political process?
The third section considers the permissibility of legislative provisions that either restrict or prohibit public servants from participating in partisan politics. The cases raise a variety of remedial issues. For example, should such legislation be declared invalid on its face, though it may be constitutional in some applications and unconstitutional in others? In such circumstances, should the Courts decline to adjudicate the issue unless disciplinary action is taken against individuals?
The First Amendment jurisprudence on these issues is rich and complex. Buckley v. Valeo and Bellotti v. Baird are two of the earliest and most important U.S. Supreme Court decisions. Bellotti and the Chamber of Commerce case consider the status of corporations in the democratic process. Haig v. Chief Electoral Officer (Canada) [1993] 2 S.C.R. 995
[Haig moved f rom Ontario to Quebec in August of 1992. As a result of the different requirements for residency in the Federal and Provincial legislation regarding the 1992 Referendum on the Charlottetown Accord, Haig was not qualified to vote. He was excluded in Quebec because he had not been a resident for at least six months and excluded from the Federal referendum since he was a resident of Quebec on enumeration day. Haig brought an application to the Federal Court for a declaration that his inability to vote as a result of the legislation abridged his s.2(b) rights.]
L=Heureux-Dubé J. (La Forest, Sopinka, Gonthier and Major JJ., concurring; Cory J. concurring but dissenting on other grounds)
Section 2(b): Freedom of Expression
Mr. Haig [] claims that the fact that he could not vote in the federal referendum infringed his freedom of expression. Expressing one=s opinion on the Charlottetown Accord, according to Mr. Haig, is an attempt to convey meaning, the content of which relates to political discourse, which is at the core of s.2(b) ... and enjoys the highest degree of protection. The content of this expression, he says, cannot be meaningfully examined apart from its form, namely participation in the referendum itself. Consequently, he urges the Court to find that the actual casting of a ballot in a federal referendum is a protected form of expression, asserting that s.2(b) ... mandates not only immunity from state interface, but also an affirmative role on the part of the state in providing this specific means of expression. ...
At issue is whether s.2(b) ... guarantees to all Canadians the right to vote in a referendum. In failing to ensure that each Canadian was provided with the opportunity to vote..., did the federal government infringe upon their freedom of expression...? Does freedom of expression include a positive right to be provided with specific means of expression?
As a starting point, I would note that case law and doctrinal writings have generally conceptualized freedom of expression in terms of negative rather than positive entitlements. ...
It has not yet been decided that, in circumstances such as the present one, whether a government has a constitutional obligation ... to provide a particular platform to facilitate the exercise of freedom of expression. The traditional view, in colloquial terms, is that the freedom of expression contained in s.2(b) prohibits gags, but does not compel the distribution of megaphones. ...
... While the basic theoretical framework underlying freedom of expression has remained unchanged over the past two hundred years, the appellants point out that the political, economic and social conditions under which the theory must be applied have changed significantly. They urge that true freedom of expression must be broader than simply the right to be free from interference. ... Does this inevitably lead to the conclusion that the constitutional guarantees of freedom of expression may import more than the absence of government interference? Some people have suggested that it might. ...
... As I stated at the outset, there is no dispute concerning the importance of freedom of expression. Nor is it disputed that voting is a form of expression. Further, in the context of legislative elections, it is clear that voting as a means of expression is constitutionally entrenched in s.3... . However, there is just as clearly no constitutionally entrenched right to vote in a referendum.
A referendum is a creation of legislation. Independent of the legislation giving genesis to a referendum, there is no right of participation. The right to vote in a referendum is a right accorded by statute, and the statute governs the terms and conditions of participation. The Court is being asked to find that this statutorily created platform for expression has taken on constitutional status. In my view, ... s.2(b) ... does not impose upon government, whether provincial or federal, any positive obligation to consult its citizens through the particular mechanism of a referendum. Nor does it confer upon all citizens the right to express their opinions in a referendum. A government is under no constitutional obligation to extend this platform of expression to anyone, let alone to everyone. A referendum ... is ... a matter of legislative policy and not of constitutional law.
The following caveat is, however, in order here. While s.2(b) ... does not include the right to any particular means of expression, where a government chooses to provide one, it must do so in a fashion that is consistent with the Constitution. ... Thus, while the government may extend such a benefit to a limited number of persons, it may not do so in a discriminatory fashion, and particularly not on ground prohibited under s.15... .
In ... the context of the federal referendum held in this case, freedom of expression did not include a constitutional right for all Canadians to be provided with a specific means of expression. Accordingly, the federal government did not violate s.2(b) ... either in holding its referendum or in holding it in less than all provinces and territories...
Iacobucci J. (dissenting, Lamer C.J. concurring)
... In a technical or formal sense, it is correct to observe ... that two referenda were held in the circumstances of this case: one by the province of Quebec and one by the federal government in the rest of Canada. Moreover, both British Columbia and Alberta require, under their legislation, that referenda be held ... prior to the authorization of amendments to the Constitution of Canada...
Technically, [then] there were some four referenda being conducted: the federal referendum in nine provinces and two territories, the Quebec referendum, the federal referendum as applied to British Columbia, and the federal referendum as applied to Alberta.
In my opinion, focusing on the technicalities of separate referenda obscures the national character of the referendum. [T]he reality was that Parliament intended the country to have a national referendum which would be conducted by the holding of a federal referendum in conjunction with one or more provincial referenda... .
...[W]hen the appellant Haig moved from Ottawa to Hull, he exempted himself from the scope of the Referendum Act by virtue of being a non-resident of every province and territory to which the Referendum Act applied. Therefore, Haig could not challenge the Referendum Act because it did not apply to him. Consequently, the only legislation that Haig could attack was the Quebec legislation...
The trouble with this approach is that it ignores the very purpose of the Referendum Act ... : to permit those Canadians entitled to vote in the federal election to accept or reject the Charlottetown Accord. The Referendum Act sought to coordinate a national referendum with the Quebec referendum... . The aim of the Referendum Act was to include all Canadian citizens...
[T]he appellant unfortunately fell between the legislative cracks and was neither able to participate in the national referendum directly, nor was he able to participate indirectly through the Quebec referendum.
The question which then arises is whether his inability to participate in the referendum process amounts to a violation of his rights under the Charter... .
I agree with the view that the federal government is not legally obligated to hold referenda, nor is it legally bound by the results of any referenda it conducts. However, if the government chooses to conduct a referendum, it must do so in compliance with the Charter. The Referendum Act provided a legislative framework to allow Canadian citizens to express their political opinions. The referendum was an important expressive activity relating to constitutional change in this country.
The importance of the expressive activity in question was clearly evidenced by the statement of the Right Honourable Joe Clark, P.C., in moving the constitutional question to be put to Canadians in the referendum:
Although Parliament was under no legal obligation to follow the results of the referendum, apparently a political obligation to do so had been assumed. Despite the absence of such a legal obligation, nevertheless, the referendum was exceedingly important expressive activity that is worthy of Charter protection. ...
The right to express opinions in social and political decision-making clearly attracts the protection of s.2(b) ... . Casting a referendum ballot is an important form of expression which is worthy of constitutional protection. In my view, the appellant Haig=s right to express his political views by participating in the referendum was guaranteed by s.2(b)... . He was denied the right to participate and thus his s.2(b) rights were violated.
Although the appellant Haig was free to express his views as he wished on the Charlottetown Accord prior to the vote, he was denied the ability to participate in the most important expressive activity, that of voting in the referendum. While the purpose of the Referendum Act was to include all voters, the effect was to deprive those residents of Quebec who were ordinarily resident in another province in the six-month period prior to the referendum of the ability to participate in expressive activity which is clearly protected under the Charter.
Notes and questions
1. Another interesting case dealing with the issue of government-funded political expression is Native Women=s Association of Canada v. Canada, (1994), 119 D.L.R. (4th) 224 (S.C.C.). During the constitutional review process leading up to the Charlottetown Accord, the federal government provided funding to certain groups representing issues of concern to aboriginal peoples. An association representing native women, which was refused equivalent funding and rights of participation, challenged the funding on several grounds, including sections 2(b) and 15 of the Charter. The Supreme Court of Canada held that the government=s failure to provide funding and a right to participate in constitutional discussions did not violate freedom of expression, as that right does not guarantee any particular means of expression nor impose upon the government a positive obligation to consult anyone. It also found that there was no evidence that the complainants could not express their views, either through those groups which were funded, or directly to the government. For this reason, the s.15 challenge was also rejected. Sopinka, J., writing for the majority, made the following comments in regard to government-funded expression (at p. 246):
Thomson Newspapers Co. (c.o.b. Globe and Mail) v. Canada(Attorney General) [1998] S.C.J. No. 44
Gonthier J. (dissenting, Lamer C.J. and L=Heureux-Dubé J., concurring)
I have had the benefit of the reasons for judgment of my colleague, Justice Bastarache. I refer to his summary of the judgments below and statement of the issues. While I agree with his statutory interpretation of s. 322.1 of the Canada Elections Act [], with his views as to the scope of s. 3 of the [Charter], and with his position that there is an infringement of freedom of expression, within the meaning of s. 2(b)..., I am not in agreement with his reasons and his disposition of the appeal with respect to the justification of the infringement. In my view, the said infringement is justified under s. 1... .
I. Introduction and Historical Background In recent political history, polls have had a substantial impact on the strategies of candidates and the policies of governments. They have become a permanent feature of Canadian politics. It is said that polls tend to reduce the level of political discourse to the lowest common denominator: principles are sacrificed for percentage points []. They tend to preempt the discussion of issues and short-circuit the democratic process... .
To the extent that media coverage of election campaigns focuses more on polling results, it focuses less on the merits of the candidates and their positions and tends to distract voters' attention from substantive issues pertaining to the good government of the country. The reliance on polls has become so pervasive that some commentators characterize election campaigns as "horse races"... .
The problem becomes more acute when some voters consciously use survey results to make decisions, despite the fact that some polls may be inaccurately conducted, misrepresented by the media or misunderstood by the public. The accuracy of opinion poll results may be deceptive and the credibility owed to them exaggerated. The closer the polling day, the less time there is to assess, scrutinize, and possibly correct polls. While the "horse race" turn that election campaigns take is unfortunate, voters have the right to choose the information that they want to rely on in deciding how to vote. If a voter wants to vote strategically, he may rely on poll results to make his decision. However, he will not be well served by an inaccurate or misleading poll. The expression he tries to convey through his vote could be unsubstantiated or misinformed.
It should be noted that overall results may not reveal the actual impact of opinion polls on individual voters. For instance, the choice of a voter who wants to support the leading candidate may be cancelled out by the vote of someone who wants to support the trailing candidate, while both were misled by the same poll. Our democracy, and its electoral process, finds its strength in the vote of each and every citizen. Our Charter provides that each citizen has the right to vote. One should not find solace in the thought that two mistakenly cast votes may perchance cancel each other out. ...
By an Order in Council dated November 15, 1989, a Royal Commission on Electoral Reform and Party Financing, chaired by Mr. Pierre Lortie (the "Lortie Commission"), was appointed to inquire into and report on the appropriate principles and process that should govern the election of members of the House of Commons and the financing of political parties and of candidates' campaigns. It held hearings across Canada and considered the issue of opinion surveys in some depth. During the hearings, at least 90 briefs were submitted regarding the influence of public opinion surveys. Seventy per cent of these briefs favoured government regulation of such polls during elections.
The Commission retained Professor Guy Lachapelle, Associate Professor in the Department of Political Science at Concordia University, to research and study this issue. His research study, entitled Polls and the Media in Canadian Elections: Taking the Pulse (the "Lachapelle Study"), was published in 1991. ...
Professor Lachapelle admitted that the actual impact of public opinion surveys was, and continues to be, a matter of controversy even among researchers. ...
The foregoing debate appears entered on the effect of polls on the outcome of elections. Of greater import in the case at bar is the effect of polls on individual voters. ...
In his study, Professor Lachapelle mentioned several potential effects of opinion polls on voters at election time:
The bandwagon effect is the best documented result of exposure to poll news. Studies found that, while the bandwagon effect may occur in response to any poll, elections provide the most fertile ground for the growth of poll-driven opinion. It is said that the bandwagon effect was observed in British and American elections, and in Quebec during the 1988 federal election []. ...
In the course of his work, Lachapelle studied the brief of the Quebec Federation of Professional Journalists to the Lortie Commission. In its brief, the Federation conceded that a 48-hour blackout prohibiting all publication or broadcast of opinion polls before the vote would be an acceptable compromise and would respect every individual's right to have time to reply (Lachapelle Study, supra, at p. 27).
At the end of his study, Lachapelle concluded that "there are significant shortcomings in the media treatment of polls" (Lachapelle Study, at p. 154). He listed several factors which could seriously impact on the accuracy and reliability of opinion poll results:
... Predicting regional voting intentions from a cross-Canada survey is also subject to considerable risk, though it became widespread in recent elections. The validity of certain local polls can also be questioned when the interview periods extend over several weeks if not months (Lachapelle Study, at p. 145).
In spite of their serious impact on the reliability of polls, these factors, just to name a few, are often overlooked by the public when considering poll results but are carefully taken into account by analysts. On the basis of his analysis of the domestic and international context, Professor Lachapelle made the following recommendations to the Lortie Commission:
In its own Final Report, at p. 457, the Lortie Commission made this striking statement:
Regarding opinion poll regulation, the Lortie Commission recommended that there be, at the end of the election campaign, a 48-hour blackout period on publication of public opinion poll results. It also suggested technical information be provided as recommended by Lachapelle, but not the establishment of a polling commission.
An all-party Special Committee of the House of Commons on Electoral Reform considered the Lortie Commission's Final Report. In its third report to the House of Commons, the Special Committee recommended a 72-hour prohibition period on publication of opinion survey results prior to the closing of the polls, but made no recommendation as to methodology information. ...
The following incident serves to illustrate the usefulness of a ban on the publication of opinion poll results in the last 72 hours of an election campaign. In the midst of the 1993 federal election, the Globe and Mail made an error in its publication of the results of an Angus Reid poll (Globe and Mail, October 8, 1993). The Globe and Mail does not have a Sunday edition. If the erroneous article had been published on the last day of the campaign or on the Saturday prior to voting day, it would have been practically impossible for the pollster to convey the correct information, and for the newspaper to correct its report, before polling day. There would not have been an adequate opportunity to criticize and correct the inaccurate information before election day. The error was certainly not intentional, still it could have had far-reaching consequences, had it occurred in the last hours of an election campaign (Lachapelle's affidavit, at paras. 30-34).
The appellants themselves acknowledge that opinion polls on election issues influence voters' decisions: "[i]f voters paid no attention to polls there would be no point in suppressing them." [] The very fact that voters pay attention to opinion surveys and rely on them as objective, non-partisan information makes it important that the information they convey not be misleading or inaccurate. The impugned provision responds to this need by requiring that election polls be published in sufficient time to allow for timely scrutiny and criticism.
I agree with my colleague that there are various activities subject to restriction during a federal election, that it is inappropriate to pronounce generally as to the scope or constitutional validity of these provisions, and that each type of restriction must be considered in its own context since each restriction is adopted to address a particular set of circumstances. However, these restrictions, including s. 322.1, stem from the same concerns. They are strong evidence that elections constitute, in our society, a unique event which calls for special treatment in order to promote voter autonomy and rational choice. Modern Canadian electoral law has sought to curb the excesses, enhance the democratic process and enable the voter to make a rational choice. Implicit to its regulations are the notions of integrity and fairness. ...
II. Analysis
A. The Right to Vote (Section 3 of the Charter) I agree with my colleague that a restriction on information would constitute an infringement of the right to vote under s. 3 of the Charter only if it undermines the guarantee of effective representation []. In the instant case, I believe that the short blackout period has no such effect. On the contrary, such a period assists effective representation. A strategic voter cannot cast a significant vote if the information required to exercise that vote cannot be discussed and scrutinized in order to assess its real value. It follows that poll results which cannot be assessed in a timely manner may actually deprive voters of the effective exercise of their franchise. Therefore, there is no infringement of the right to vote under s. 3... .
B. Freedom of Expression (Section 2(b) of the Charter) It is not in dispute, and I agree with my colleague, that s. 322.1 infringes freedom of expression within the meaning of s. 2(b)... .
Justification Under Section 1 of the Charter
1. Preliminary Note: Evidence and Standard of Proof In the course of the s. 1 analysis, the standard of proof to be used is proof on a balance of probabilities []. As was stated in Libman v. Quebec (Attorney General) [], scientific evidence is not required to meet the standard. Also McLachlin J., in writing for the majority in [RJR-MacDonald],... expressed the unanimous view of the Court:
To paraphrase the Court's findings in Libman [], election campaigns, just as referendum campaigns, fall within the realm of social science, which does not lend itself to precise evidence.
2. Legislative Objective In the material before the Court, reference is made to three suggested legislative objectives: first, to reduce the "undue influence" of all polls in general; second, to provide for a rest period so as to allow electors time to reflect before polling day; and third, to prevent the potentially distorting effect of public opinion survey results that are released late in an election campaign leaving insufficient time to assess their validity. This latter objective is the only one that the respondent advanced before this Court. Although my analysis will focus on this particular objective, the first two objectives may not be without merit. ...
(a) Criteria The Court must first assess the objective of the infringing legislative measure, as distinguished from the means chosen to implement it. The question is whether the concern which prompted the enactment of the impugned legislation is pressing and substantial and whether the purpose of the legislation is one of sufficient importance []. The distinction between "objective" and "means" is important since at this stage, the Court must ensure that the said objective is consistent with the principles integral to a free and democratic society, pressing and substantial, and directed to the realisation of collective goals of fundamental importance [] ... .
(b) Purposes of Freedom of Expression: Access to Information As to the purposes underlying freedom of expression, La Forest J. in Ross [], and McLachlin J. in R. v. Zundel [], noted that s. 2(b) of the Charter aims at permitting free expression "to the end of promoting truth, political and social participation, and self-fulfilment." Following these purposes, freedom of expression should not be considered as an end per se. The promotion of an informed vote over a misinformed vote meets the three purposes and truly serves the core values of the freedom of expression in a free and democratic society: by allowing timely discussion of all published poll results, s. 322.1 aims at fostering truth; by keeping open the possibility of timely debate as to the validity of poll results, it promotes active political and social participation, rather than condone passiveness as to poll results; by allowing for full scrutiny of the information carried by poll results late in the election campaign, it promotes voters' self-fulfilment by ensuring that the intention voters really want to convey in casting their vote is actually expressed.
The quest for better information gives more meaning to voter participation in the electoral process. The very fact that some voters base their decision on opinion survey polls may justify the means taken to promote voters' right to good information. This is consistent with the findings of this Court that one of the objectives underlying freedom of expression is the ability of voters to make informed choices []. ...
The position of the appellants and the intervener Canadian Civil Liberties Association regarding free expression in democracy is couched on the rationale that truth emerges through vigorous debate and more publication of polls. My colleague adopts this view... .
According to this rationale, if there are distorting effects, these should be dealt with through corrective response of civil society (e.g., the media, political parties, private individuals, etc.), not through coercive action by the state. There is a serious problem with relying unreservedly on this rationale when it comes to elections. To say that truth most reliably emerges by means of correction through more polls is to assume an ongoing debate. In elections, the debate ends with the vote. A multiplicity of potentially inaccurate polls, none of which are in time to permit debate, fosters confusion and offers little protection to the public. Errors and misinformation may be corrected after the election, but the value of the correction is lost. Elections suggest that a special remedy may be in order: namely, a requirement that information be timely so as to avoid the harm occurring in the first place.
(c) Purpose of Section 322.1 The purpose of s. 322.1 is to improve information to the public during election campaigns. Its primary objective is positive rather than negative. Section 322.1 does not purport to suppress an evil per se, such as obscenity in R. v. Butler [] or hate propaganda in Keegstra. It aims at balancing and enhancing Charter rights, namely the informed exercise of the right to vote and a fundamental purpose of freedom of expression, i.e., informed participation in the electoral process. If one wants to identify a harm in the instant case, it would be a lack of enhancement of the electoral process through timely information. Section 322.1 aims at improving the search for truth, by providing for the timeliness of the publication of poll results, so as to allow discussion, not simply proscribing polls. It in no way dictates or deals with the content of expression.
The Charter should not become an impediment to social and democratic progress. It should not be made to serve substantial commercial interests in publishing opinion poll results, by defeating a reasonable attempt by Parliament to allay potential distortion of voter choice.
Parliament adopted s. 322.1 without expressed opposition, following lengthy, extensive, in-depth studies and consideration over several decades, in response to a long-standing concern. Being themselves the very objects of elections, members of Parliament were in the best position to assess the effects of polls in electoral campaigns and their impact on individual voters. In the proceedings, it has not been suggested that members of Parliament had any interest other than to foster the integrity of the electoral process by avoiding voters being misled on facts through denial of an opportunity for scrutiny and discussion.
(d) Evidence Social science studies composed much of the evidence submitted before the motions judge. ...
As outlined earlier in these reasons, Somers J. had ample material to support his position that, taken as a whole, the evidence "serves to buttress the respondent's contention that the unregulated distribution of poll results is not without its potential problems" []. It must be pointed out that the Court of Appeal unanimously accepted Somers J.'s observations and findings of facts regarding his s. 1 analysis []. The evidence shows that there exists a long-standing concern about the publication of opinion survey results during election campaigns in Canada. In the last 30 years at least, several reports have studied and discussed this issue in depth.
In the instant case, at p. 143, Somers J. rightly found that it is reasonable to presume that polls can harm the electoral process. I rely here on the following evidence:
In reaching these conclusions, Somers J. makes specific reference to several findings of the Lortie Commission. ...
Somers J. also found [], that the international review of legislation regarding publication of opinion poll results during elections was "strong evidence of a pressing objective." At least six European Union countries have some form of polling blackout, ranging in duration from five days in Spain to the entire length of the election in Portugal. French regulations prohibit publication during the last week before a round of voting for presidential, legislative, or European elections. In Belgium, the prohibition lasts 30 days. Greece, Brazil, South Africa, South Korea, Japan, and Australia enacted legislation to regulate or ban the publication of poll results. ...
The fact that so many democratic, industrialized nations have passed legislation in this particular area is further evidence of the importance of the problem. Extensive polling is a relatively recent phenomenon. That some countries have not responded does not detract from the fact that many have. To make the response of others to political or social concerns a pre-requisite to legislation would transform the Charter into a sword against social progress and stultify government action.
In their factum, the appellants refer to a decision of the Alberta Court of Appeal, Canada (Attorney General) v. Somerville, [1996] 8 W.W.R. 199, to support the view that Parliament's objective as to the impugned legislation is not permissible under the Charter. ...
In Libman [], the Somerville decision was unanimously criticized inasmuch as this Court declared "that the objective of Quebec's referendum legislation [of promoting fairness in a democratic process through a certain equality of resources] is highly laudable, as is that of the Canada Elections Act". In Libman, the system set up by the referendum legislation restricted independent spending, thus freedom of expression, in order "to preserve a balance in the promotion of the options and favour an informed and truly free exercise of the right to vote" []. The instant case aims at this very objective.
Considering that the legislative objective of s. 322.1 of the Canada Elections Act is consistent with and indeed enhances the objectives underlying freedom of expression, among them the ability of voters to make informed choices and the promotion of political and social participation, that Parliament's concern is clearly pressing and substantial, in that it is directed to the realisation of the important collective goal of safeguarding the integrity of the electoral process..., I conclude that the objective of preventing the potentially distorting effect of public opinion survey results that are released late in an election campaign when there is no longer a sufficient opportunity to respond is a sufficiently important objective which meets the first step of the analysis under s. 1... .
3. Proportionality Test
(a) Rational Connection ... In the instant case, the rational connection is self-evident. Opinion polls significantly influence voter choice and electoral campaigns. It follows that the publication of inaccurate, though authoritative, opinion survey results that go uncorrected may well lead to voters making misinformed decisions. Logically, there is a reasoned apprehension that voters will be deprived of the full exercise of their franchise. Its importance is measured by the significant influence of polls on voters and the prevalence of misleading polls. Ensuring that polls that cannot be adequately, publicly and independently evaluated as to their correctness because of insufficient time are not published clearly addresses this problem. Voters are free to cast their ballot as they see fit; however, the democratic process cares about each voter and should not tolerate the fact that, in the pooling booth, some voters would express themselves on the basis of misleading, or potentially misleading, information that is de facto immunized from scrutiny and criticism.
(b) Minimal Impairment In my view, there is no doubt that s. 322.1 constitutes a genuine mediation between the rights of voters to receive information in a timely fashion, and the right of pollsters and publishers freely to provide the information they want. Not only does the legislation protect the rights of voters but it does so by serving one of the very purposes of freedom of expression, that is informing while allowing for political debate and discussion. As mentioned earlier, the provision also strikes a balance between two basic aspects of voters' right to information, that are, on the one hand, the availability of accessible, unrestricted, plentiful, diversified information and, on the other, the timely availability of factual information that may be misleading so as to allow for scrutiny and criticism.
In matching means to ends and asking whether rights are impaired as little as possible, a legislature mediating between the claims of competing groups will be forced to strike a balance without the benefit of absolute certainty concerning how that balance is best struck []. ... I share the respondent's view that this Court should not second-guess the wisdom of Parliament in its endeavour to draw the line between competing credible evidence, once it has been established, on the civil standard of proof, that Parliament's objective was pressing and substantial:
At this stage, the question is whether there is a reasonable basis, on the evidence tendered, for concluding that a blackout on all opinion polls during the last weekend of an election campaign and during election day impaired freedom of expression as little as possible given the government's pressing and substantial objective []. Parliament is not bound to find the least intrusive nor the best means. This would be too high a standard for our elected representatives to meet. ...
One can conceive of alternatives to the impugned measure. ... I conclude that [] alternative measures cannot pretend to equally serve the objective of preventing the potentially distorting effect of public opinion survey results that are released late in an election campaign when there is no longer a sufficient opportunity to respond, and be as effective when compared to the measure at issue.
One of the suggested alternatives is mandatory publication of methodological information. Since poll results would be allowed to be published up until the last minute of the election campaign, it supposes that voters can, looking at that methodological information, decide for themselves if the poll was properly conducted and ascertain whether the results are reliable. Absent sufficient time for public discussion of the poll results, it is unlikely that this alternative would be of real assistance as voters may lack the requisite knowledge to properly assess the results. The publication of methodological information is useful when analysts and political parties have sufficient time to evaluate its validity.
The second proposed solution is to create a punishment for publishing false poll results. Once again, the proposal suffers from serious shortcomings. Firstly, the prohibition is unlikely to prevent voters from being misled. Despite successful prosecution, the damage to voters would already have been done. Secondly, even if one were to assume that such a prohibition, coupled with severe sanctions, would serve as a deterrent, it would only aim at intentional deception. Consequently erroneous polls whose results will not have been considered due to lack of time will still mislead voters and remain unpunished.
In summary, there is simply no equally effective alternative to the current short-term blackout for achieving the legislative objective.
What is then the scope of s. 322.1? It is claimed that s. 322.1 is overbroad in that it prohibits polls of all kinds regardless of their scientific nature or quality. I agree with the Court of Appeal's finding that the provision prohibits all opinion surveys, regardless of how informal they may be, "hamburger polls" included. The expression "hamburger polls" describes what is sometimes used as a marketing device during elections where goods are matched to political candidates or parties. The sales of each item are then claimed to reflect public sentiment. As amusing as it may sound, the expression "hamburger polls" tends to suggest a clear cut line between reliable poll results and misleading poll results. There is no such clear demarcation. To limit the ban to polls that are acceptable to the scientific community leaves out polls that, some voters may wrongly be led to believe, are representative or based on scientific methodology, and complicates enforcement of the provision. On the other hand, the information conveyed by "hamburger polls" is of such questionable nature that any infringement of Charter rights is minimal, at best.
I add that, considering the main legislative objective, I share my colleague's view that the impugned legislation does not apply to the discussion of previously released poll results. ...
The impugned limitation minimizes the risks of publication and dissemination of misleading poll results on or just before the crucial moment of the polling day, by allowing just enough time (72 hours approximately), from Friday prior to election day to the closing of polling stations on election day, to collect any undisclosed methodological information, assess poll results, discuss the assessment, criticize the analyses, and disseminate the results of the discussions throughout the electorate. This period is very short-lived, especially for the analysis of a cross-Canada opinion poll and the airing of the analysis, having regard to the time allotted for voting and the restriction on broadcasting and advertising on polling day and the day preceding.
The Lachapelle Study suggested 72 hours, while the Lortie Commission recommended 48. ...
In Irwin Toy, at issue was the determination of the upper age limit for the protection of children from advertising. This Court held that the legislature was not obliged to confine itself solely to protecting the most clearly vulnerable group. It was only required to exercise reasonable judgment in specifying the vulnerable group. ...
Based upon the current legislation, the reports and the studies available, Parliament reasonably determined, as it was entitled to do, that a 72-hour period was necessary to allow meaningful scrutiny of poll results during an election campaign.
Furthermore, the limitation period only affects one mode of expression: opinion poll results respecting how electors will vote at an election or respecting an election issue that would permit the identification of a political party or candidate. This mode of expression is not a primary source of information concerning relevant political facts. It mainly constitutes information as to the effect of relevant political information on potential voters. Candidates and political parties, through the media, are still allowed to disseminate their program across the electorate and to carry on their campaign, within the other limits prescribed by the Canada Elections Act, which are not currently at issue.
Many elements of information can factor into influencing voters: statistics, financial information, speeches, news, etc. When Parliament identifies one matter of concern, it has no absolute duty to identify and regulate each and every factor. It is entitled to determine the urgency of addressing a particular problem and the appropriate means of doing so. ...
Both the motions judge and the Court of Appeal held that inaccurate polls at the end of an election campaign constitute a reasonable concern. The respondent has not to show that this concern is more serious or is causing more harm to the electoral process or to individual voters than any other potentially misleading information. There is no such standard under the Charter. Holding so would have the effect of transforming the Charter into an impediment to social progress. As Somers J. found, studies and reports, as well as bills in the House of Commons, and legislation in other democratic countries support Parliament's reasonable finding that the concern at bar was serious. ...
While voters may be credited with some knowledge of the reliability of poll results generally, surely it is legitimate for Parliament to provide them with an opportunity of distinguishing "poor" from "good" polls. As I mentioned earlier, it is concern as to the prevalence of the publication of "poor" polls which has prompted the legislation. An opportunity to analyse, discuss and criticize published poll results is required in all cases, be it by any individual voter or more likely by analysts and others, in sufficient time for a public airing of diverse opinions. In addition, while my colleague acknowledges the pressing and substantial legislative objective and its rational connection to the impugned measure, he apparently finds the evidence submitted by the government insufficiently specific and conclusive to justify the impairment. The effect of potentially inaccurate opinion poll results must be measured having regard to the effect of opinion poll results generally. Reasoning based on the belief that voters will show discernement in their reliance on polls and that only some voters are influenced does not belie nor answer the fact that the influence of polls both on the choice of voters and on the conduct of electoral campaigns is significant. ...
[E]veryone is vulnerable to misinformation which cannot be verified. As I have pointed out, a multiplicity of potentially inaccurate polls offers little protection to the public. Our democracy, and its electoral process, finds its strength in the vote of each and every citizen. Each citizen, no matter how politically knowledgeable one may be, has his or her own reasons to vote for a particular candidate and the value of any of these reasons should not be undermined by misinformation. ...
[O]pinion poll results have a significant influence. They are subject to error, misrepresentation and open to manipulation. Elections, by their very nature, are a battleground for diverging interests, each striving for the favour of electors. Polls are one instrument in the armoury of the contestants. The intense conflicts of interest in an election are an inducement to manipulation. Parliament, acting on the conclusions of extensive studies and research after consideration over many years and in response to a broad public concern with the benefit of the background experience of its own members, has chosen to enact a modest measure of protection of voters against factual misinformation.
(c) Proportionate Effects ... The salutary effect of s. 322.1 is to promote the right of voters not to be misled in the exercise of their right to vote. At the end of an election campaign, opinion poll results have the potential to irreparably mislead voters, particularly strategic voters, because of the purportedly scientific, reliable nature of most opinion poll results. The deleterious effect of the measure is that s. 322.1 deprives some voters, who rely on polls to make their decision, of some late campaign opinion poll results. This deleterious effect is quite limited, when one considers the delay between conducting the poll and ultimately publishing its results. In fact, what is prohibited is the publication of results of polls conducted at best three days or more before polling day, as against polls conducted five or more days before polling day. ... As I pointed out earlier, a strategic voter cannot cast a significant vote if the information required to exercise that vote is not discussed and scrutinized in order to assess its real value. Poll results which cannot be assessed in a timely manner may actually deprive voters of the effective exercise of their franchise.
As to the effects of the measure on freedom of expression, on the one hand, s. 322.1 precludes the media from publishing polls on the last weekend of the election campaign and on polling day. This ban causes minimal impairment to freedom of expression because of its very short duration and because of the lack of satisfactory alternatives available to tailor the measure to the legislative objective. On the other hand, s. 322.1 has a positive impact on freedom of expression. It promotes debate and truth in political discussion since it gives voters the opportunity to be informed about the existence of misleading factual information. The salutary effects of the measure concerning both the right to vote and freedom of expression thus outweigh the deleterious effects caused by the impugned provision.
The judgment of Bastarache, Cory, McLachlin, Iacobucci and Major JJ. was delivered by
Bastarache J.
This appeal concerns the constitutional validity of s. 322.1 of the Canada Elections Act [], which prohibits the broadcasting, publication, or dissemination of opinion survey results in the final days of a federal election campaign. More specifically, the provision is challenged in light of freedom of expression and the right to vote as protected by ss. 2(b) and 3 of the [Charter].
I. Factual Background The appellants Thomson Newspapers Company Limited and Southam Inc. brought an application [for a declaration that s. 322.1 of the Canada Elections Act is of no force and effect...].
On May 15, 1995, Somers J. of the Ontario Court (General Division) denied the appellants' application on the basis that the impugned provision, although violating freedom of expression, was nonetheless justified under s. 1 of the Charter. Somers J. found no violation of the right to vote. On August 19, 1996, the Ontario Court of Appeal (Catzman, Carthy and Charron JJ.A.) dismissed the appeal and agreed with Somers J. that the right to vote had not been violated and the infringement of freedom of expression was justified.
Canada Elections Act, R.S.C., 1985, c. E-2
B. Ontario Court of Appeal (1996), 30 O.R. (3d) 350 The Court of Appeal disagreed with Somers J. regarding the ambit of s. 322.1. It held that the phrase "opinion surveys" should be read broadly to include not only scientific surveys, but also phone-in or mail-in polls, and even less scientific methods of gathering information, such as exit and "hamburger" polls. The Court of Appeal also disagreed with Somers J.'s conclusion that the prohibition in s. 322.1 is limited to new survey results. In the Court of Appeal's view, s. 322.1 applies to publication or discussion of all opinion survey results, whether in the public domain prior to the commencement of the ban or not. There was agreement, however, with Somers J.'s view that internal or private communications are not caught by s. 322.1.
On the constitutional issues, the Court of Appeal was in substantial agreement with the analysis of Somers J. As to the character of the harm addressed by the publication ban, the Court of Appeal described the purpose somewhat more narrowly, at p. 353:
The court found, at p. 359:
The Court of Appeal also agreed with Somers J. that the ban on opinion survey results does not violate the right to vote under s. 3 of the Charter. The court held, at p. 358:
The Court of Appeal found the infringement of the freedom of expression to be justified under s. 1 of the Charter. The court stated, at p. 360:
Even the broader interpretation of s. 322.1 favoured by the Court of Appeal was found to pass the minimal impairment analysis. ...
V. The Right to Vote I find it necessary, at the outset of my analysis on the right to vote, to distinguish between the two Charter rights at issue in the present case. It is significant, for instance, that s. 3 of the Charter, which guarantees the citizen's right to vote, is not subject to override under s. 33 of the Charter. This means that a statutory provision which violates s. 3, and is not saved by s. 1, cannot be insulated from Charter review by Parliament or a provincial legislature. By contrast, s. 2(b) of the Charter, which protects free expression, is subject to override under s. 33. Even though the override power is rarely invoked, the fact that s. 3 is immune from such power clearly places it at the heart of our constitutional democracy.
Moreover, in cases where freedom of expression and the right to vote may overlap or come into conflict, it is necessary to find an appropriate balance between both sets of rights. ...
In my view, these comments are equally applicable where the right to vote overlaps with the right to free expression. Each right is distinct and must be given effect.
It is noteworthy, as well, that the scope of s. 2(b), unlike the scope of s. 3, has been well canvassed by this Court. Most recently, the broad interpretation of the scope of s. 2(b) was affirmed in [Libman]... .
Turning to s. 3, this Court has... not addressed the scope of s. 3 in the context of access to information during an election. In my view, it is not necessary to decide on the informational content of s. 3 in the context of this case. The purpose of s. 3 was stated clearly by McLachlin J. in Reference re Provincial Electoral Boundaries (Sask.) [], as the "right to 'effective representation'" []. Accordingly, to constitute an infringement of the right to vote, a restriction on information would have to undermine the guarantee of effective representation. ...
In the present instance, it was argued that the partial ban on election polls hinders the electoral process because some of the voters are deprived of information relevant to the exercise of their right to vote. The Court of Appeal considered, at p. 358, that s. 3 only guarantees access to information "necessary to permit electors to vote rationally and in an informed manner", and that poll results did not fall into that category. My conclusion that s. 322.1 is an unjustified limit on free expression makes it unnecessary to deal with this issue. I prefer to leave the issue aside mostly because the evidence with regard to the relationship between the kind of information banned and the integrity of the election process is too sparse.
VI. Freedom of Expression
A. Section 2(b) of the Charter Before this Court, the respondent conceded, as it did in the courts below, that there was a prima facie infringement of freedom of expression. This concession was well founded. Section 322.1 clearly infringes on the guarantee in s. 2(b) of the Charter, in accordance with the test set out in Irwin Toy [] ....
B. Justification Under Section 1 of the Charter
1. Contextual Factors The analysis under s. 1 of the Charter must be undertaken with a close attention to context. This is inevitable as the test devised in R. v. Oakes [], requires a court to establish the objective of the impugned provision, which can only be accomplished by canvassing the nature of the social problem which it addresses. Similarly, the proportionality of the means used to fulfil the pressing and substantial objective can only be evaluated through a close attention to detail and factual setting. In essence, context is the indispensable handmaiden to the proper characterization of the objective of the impugned provision, to determining whether that objective is justified, and to weighing whether the means used are sufficiently closely related to the valid objective so as to justify an infringement of a Charter right.
Characterizing the context of the impugned provision is also important in order to determine the type of proof which a court can demand of the legislator to justify its measures under s. 1. This question is suitably addressed at the outset because it affects the entirety of the s. 1 analysis, and because of the nature of the evidence in this case. ... In Butler, Sopinka J. found the social science evidence relating pornography to violence or other harms directed at women by men to be inconclusive. Nonetheless, he found that there was a rational connection between the impugned provision and the measures adopted by the legislature... .
In RJR-MacDonald [], McLachlin J. addressed more explicitly the relationship between the standard of proof required under s. 1 and the nature of the problem which Parliament was seeking to remedy. That case involved the application of s. 2(b) to certain restraints on tobacco advertising and promotion which had been adopted by Parliament. After noting that the distinction described in Irwin Toy between the government as social mediator and the government as singular antagonist "may not always be easy to apply", she observed, at para. 135:
She emphasized, however, that this does not diminish the usual standard of proof required under s. 1, simply that that standard might be satisfied in different ways depending on the nature of the legislative objective ....
The issue of the standard and type of proof required under s. 1 arises with particular acuity in the case at bar because the social science evidence, as in these previous cases, is in a state of some controversy. In light of this inconclusive evidence, the government submitted it is not for this Court to second-guess the judgment of the legislature when it has made a reasonable assessment that an apprehension of harm exists. It also argued that "common sense applied to what is known establishes the reasonableness of Parliament's assessment of the situation".
I agree with McLachlin J.'s remarks in RJR-MacDonald that it is difficult to draw a sharp distinction between legislation in which the state is the antagonist of the individual, and that in which it is acting as a mediator between different groups. Indeed, nothing in these cases suggests that there is one category of cases in which a low standard of justification under s. 1 is applied, and another category in which a higher standard is applied. In my view, these cases further the contextual approach to s. 1 by indicating that the vulnerability of the group which the legislator seeks to protect (as in Irwin Toy []; Ross v. New Brunswick School District No. 15 [], that group's own subjective fears and apprehension of harm (as in R. v. Keegstra []), and the inability to measure scientifically a particular harm in question, or the efficaciousness of a remedy (as in Butler []), are all factors of which the court must take account in assessing whether a limit has been demonstrably justified according to the civil standard of proof. They do not represent categories of standard of proof which the government must satisfy, but are rather factors which go to the question of whether there has been a demonstrable justification. I propose to return to these factors in more detail in the course of a contextual approach to s. 1.
Another contextual factor to be considered is the nature of the activity which is infringed. The degree of constitutional protection may vary depending on the nature of the expression at issue (Edmonton Journal v. Alberta (Attorney General) []; Rocket v. Royal College of Dental Surgeons of Ontario []; Keegstra []; RJR-MacDonald []; Libman []). This is not because a lower standard is applied, but because the low value of the expression may be more easily outweighed by the government objective. In this case, the speech infringed is political information. While opinion polls may not be the same as political ideas, they are nevertheless an important part of the political discourse, as manifested by the attention such polls receive in the media and in the public at large, and by the fact that political parties themselves purchase and use such information. Indeed, the government argues that opinion polls have an excessive impact on the electoral choices made by voters. As a genre of speech, unlike hate speech or pornography, this expression is not intrinsically harmful or demeaning to certain members of society because of its direct impact, or its impact on others. It is without moral content, and yet it is widely perceived as a valuable and important part of the discourse of elections in this country. The government urges, however, that under some circumstances polls may come to have an effect which interferes with the ability of individuals to make an informed choice.
According to the purposes I describe below, there are two groups who might be negatively affected by polls: first, there are those who incorrectly assume that polls are a perfect measure of voting results on election day, and rely on them to an excessive degree in consequence; second, there are those voters who are perfectly aware of the general shortcomings of polls as predictions of the result on election day, but who are misled by the publication of an inaccurate poll result. Even assuming there to be some likelihood of these dangers, which shall be discussed more fully in the course of the s. 1 analysis proper, there can be no question that opinion surveys regarding political candidates or electoral issues are part of the political process and, thus, at the core of expression guaranteed by the Charter. ...
In that case, hate speech was found to interfere with the ability of a specific and identifiable group to participate in the political process by directly undermining their dignity and their membership in the community. The same could be said of pornographic expression in Butler. And in Irwin Toy, the interest of advertisers meant that there was a likelihood that such speech would be manipulative of children and would play on their vulnerability.
In each of these cases, the type of speech involved systematically and consistently undermined the position of some members of society. There is no evidence in this case that there is any such systematic opposition between the interests or position of the Canadian voter and opinion surveys. The government argues that there is the potential that some inaccurate poll might undermine the freedom of choice of the Canadian voter, or that some voters might be excessively influenced by polls. Leaving those exceptional or potential cases aside, polls are not generally inimical to the interests of Canadian voters. They are sought after and widely valued which, independently of their value to any one voter or specific content, places this type of speech at the core of the political process.
Although the Libman case involved expression related to political campaigning, there was a likelihood that the genre of paid political advertising would significantly manipulate the political discourse to the advantage of those with greater financial resources []. Libman is not dissimilar to Irwin Toy in the sense that, under certain circumstances, the nature of the interests (i.e., a single party or faction with a great preponderance of financial resources) of the speakers could make the expression itself inimical to the exercise of a free and informed choice by others. The government does not suggest that there is any such systematic or structural danger in the case of opinion surveys, but relies simply on the possibility of an inaccurate poll, or the disproportionate reaction by certain voters to polls generally. These may be important objectives and will be assessed below; but the possibility of harm arising from the unfortuitous publication of an inaccurate poll does not displace the general nature of this expression as political expression at the core of s. 2(b).
I would conclude that the nature of the expression in issue here does not prima facie suggest that a deferential approach is appropriate in this case.
2. Legislative Objective The characterization of the objective of s. 322.1 and the nature of the harm which it hopes to remedy are virtually correlatives of one another, and constitute the crucial first step in the s. 1 analysis. Unfortunately, the decisions below and some of the submissions before us have been unnecessarily vague in stating the precise objective of the limitation in issue... . The respondent submitted before us that the objective of s. 322.1 is "to prevent the distorting effect of public opinion survey results which are released late in the election where there is no longer a sufficient opportunity to respond". But what is the exact nature of this "distorting effect"? The Court of Appeal did not elucidate any more precise objective than this. By contrast, Somers J. articulated four objectives from the legislative history of the provision which more precisely characterized the purpose of the limit on freedom of expression: prevention of dissemination of false information; prevention of polling information from being presented in a misleading way that lent an aura of scientific precision to poll results; a period of rest and reflection for voters prior to going to the polls; and a period of response after the final poll has been published, presumably to respond to its potential inaccuracy or simply to question the importance of polls in general. Before this Court, the respondent submitted that the sole objective of the provision on which it was relying was to provide a period during which the accuracy of a poll could be publicly questioned and debated, so that the scientific validity and accuracy of any particular poll would be more fully known to Canadian voters. The harm, then, which the provision purportedly addresses is the possibility that the scientific accuracy of polls may be overestimated by Canadian voters in a particular election and that they may cast their vote based on this inaccurate perception.
As mentioned in the previous section, the voter's misapprehension of the true significance of a poll could be the result of either of two quite different reasons: first, the voter might systematically overestimate the validity and accuracy of poll results; or, second, there might be a poll which falls below the normal standard of accuracy of polling which Canadians are generally entitled to expect. This latter type of poll is more simply described as a bad poll, a false poll, or an inaccurate poll. The respondent is not explicit as to which distorting effect it refers, and the judgments below, as well as legislative pronouncements at the time of its passage, reflect this obscurity. The danger of the systematically overreliant voter is suggested in the purpose described by Somers J. as the need for "a rest period" so that the frenzy of polls will die down and voters will be encouraged to forget about the polls and concentrate on issues. This purpose is evident in the final report of the Royal Commission on Electoral Reform and Party Financing ("Lortie Commission") entitled Reforming Electoral Democracy (1991), vol. 1, which concluded, at p. 460, that a polling ban was necessary to "provide a period of reflection at the end of a campaign to assess the parties and candidates". The second purpose of the legislation, to guard against an inaccurate poll which occurs late in the campaign, has nothing to do with a period of repose or reflection. Rather, the purpose is to provide an opportunity for the last opinion surveys on which the voter might base his or her vote to be subjected to public scrutiny. In this way, the voter will have the best information possible about the accuracy of the latest polls, and will not cast a vote without a potentially inaccurate opinion survey having been publicly scrutinized.
At a higher level of generality, the purpose of providing more accurate information to Canadian voters is that they are more capable of making a free and informed choice, which engenders a freer and fairer election process. It is said that the election process will also be perceived as fairer by the electorate with this restriction in place. This, in turn, strengthens democracy. For the purpose of the s. 1 analysis, however, it is desirable to state the purpose of the limiting provision as precisely and specifically as possible so as to provide a clear framework for evaluating its importance, and the precision with which the means have been crafted to fulfil that objective [].
Accepting these as the two objectives of s. 322.1, it is my view that any ambiguity in the words of the section should be interpreted in accordance with those purposes, rather than to frustrate them. I conclude, therefore, that Somers J. was correct in interpreting the prohibition in s. 322.1 as applying only to "new" poll results, i.e. results that are undisclosed as of midnight on the Friday before election day. ...
3. Is the Objective Pressing and Substantial? For clarity, I propose to examine each purpose separately, beginning with the "period of rest" purpose. I will examine this purpose briefly as the respondent all but withdrew this as part of its argument before this Court. However, I still consider this analysis necessary as the vague references to the "distorting effect" of polls could still accommodate this purpose. Moreover, there is little doubt that this was one of the original purposes of Parliament in enacting the provision. In addition to the statement in the final report of the Lortie Commission mentioned above, Senator Rivest, in introducing the bill containing s. 322.1 in the Upper House, declared that it was an attempt to "reconcile the freedom of speech and the freedom of the press with the right of the voters to make a judgement peacefully, come election time": Debates of the Senate, April 29, 1993, at p. 3117.
An examination of this purpose reveals some disturbing assumptions. First, this purpose does not rely on the inaccuracy of any opinion survey results. Rather, it suggests that Canadians will become so mesmerized by the flurry of polls appearing in the media that they will forget the issues upon which they should actually be concentrating. This reasoning cannot be countenanced. Canadian voters must be presumed to have a certain degree of maturity and intelligence. They have the right to consider the results of polls as part of a strategic exercise of their vote. It cannot be assumed that in so doing they will be so naive as to forget the issues and interests which motivate them to vote for a particular candidate. Nor can Canadians be presumed to assume that polls are absolutely accurate in predicting outcomes of elections and that they thus will overvalue poll results. Many polls are released in the course of an election campaign which belies the suggestion that any one poll could be perceived as authoritative. These opinion polls yield differing results even when conducted contemporaneously, and, perhaps more importantly, opinion poll results fluctuate dramatically over time. I cannot accept, without gravely insulting the Canadian voter, that there is any likelihood that an individual would be so enthralled by a particular poll result as to allow his or her electoral judgment to be ruled by it.
I am thus unable to perceive, and nor has the government seriously argued before us, that any pressing and substantial objective is served by the existence of a "rest period" for polls prior to the election date. I would, therefore, find that s. 322.1 is not justified under s. 1 according to this objective.
The more difficult question is whether the blackout period can be justified by the other legislative purpose, which is to prevent an inaccurate poll from having an impact on voter choice because of a lack of response time prior to the voter casting his or her ballot. The first step in determining whether this is a pressing and substantial objective is to determine whether such a poll would actually influence voter choice, and to what extent; the second step is to evaluate the likelihood of an inaccurate poll being published.
Although the extent of the influence of polls on voter choice is uncertain, there is evidence suggesting that it may be significant. The key evidence in this case was gathered by the Lortie Commission and presented in its final report. The Lortie Commission [] concluded that: "Notwithstanding the frequent assertion of pollsters that their data have minimal influence on voters, recent research provides strong support for the proposition that published opinion polls can significantly influence campaigns and voters". More specifically, the Commission asserted that "the argument that published polls do not influence voter choice or affect the conduct of campaigns is simply untenable" []. Thus, the Commission found that polls not only have a general impact on the conduct of an election, but that they affect voter choice. The harmful influence, according to the Commission, arose because opinion polls are subject to errors which are not fully disclosed to the public... .
Again, I would observe that there appear to be two strains of thought in this passage: first, that the accuracy of any poll may be overestimated by Canadians, and second, that some polls may fall below the standard of accuracy generally expected through error or misrepresentation. I have found above that the first of these objectives is not of pressing and substantial concern justified under s. 1. However, the Lortie Commission appears also to be concerned about the influence of an inaccurate poll. The Lachapelle Study [] and the White Paper on Election Law Reform (1986), were considerably less certain of this influence, however. ...
Although the overall influence of polls may not have been scientifically established as "undue", I would nevertheless conclude that there is evidence of significant influence of polls on the electoral process and on individual electoral choice. Although the overall effect of these polls may be difficult to discern or predict, this evidence suggests that an uncertain number of voters might be influenced in their electoral choice by this false information. The pernicious aspect of an inaccurate poll is that no voter could discover its true nature because of the lack of response time.
The possibility of the publication of an inaccurate poll is not de minimis. ...
The close relationship between some polling organizations and political parties also suggests that polls released as purportedly scientific measures of public opinion could be subject to manipulation [Lachapelle Study].
There is also evidence of public and governmental concern to guard against inaccurate polls which are published late in the campaign and which thus cannot be subject to the same scrutiny as polls published earlier in the election. The respondent submitted the results of a poll indicating that 45 percent of Canadians are in favour of such a ban, 28 percent are opposed, and 27 percent had no opinion. As a simple matter of logic, moreover, clear evidence of the influence of polls on individual voter choice, combined with indications that such inaccurate polls are not a remote possibility, suggests that the voting decision of those who rely on polls as part of their decision-making process could be distorted. The possibility of such a distortion is clearly a matter which the government may legitimately be concerned to remedy.
The validity of this concern is attenuated, however, by an important disjunction between the evidence and the harm which the legislation purports to address. The evidence and conclusions presented by the Lortie Commission and the Lachapelle Study relate to the influence of polls in the aggregate; the purported objective of this legislation relates to the inaccuracy of an individual poll which undeservedly benefits from the perception of scientific accuracy as a result of the generally high standards of accuracy maintained by polls, and by its presentation in the media as a scientific measure. But an opinion poll does not appear in a vacuum. Rather, it is published chronologically after a series of other polls which have been measuring public opinion throughout the election. In all likelihood, other polls conducted by other polling organizations will appear in other media outlets during the three days prior to election day. Thus, to the extent that any single poll is inaccurate, this will possibly be apparent to voters who are aware of the results of other polls, both those published immediately prior to this final period before the election, and those appearing in the media at the same time as the inaccurate poll. The more polls which appear during this period, the less likely that voters will base their decisions on the inaccurate poll. Moreover, the severity of the error, which one might speculate might enhance the influence of the error, would be offset by increased ease with which the mistake would be identified. In addition, voters' experience with opinion polls in previous elections will have demonstrated that opinion polls are of variable value and accuracy as predictive measures of the outcome of an election.
Notwithstanding this qualification, I conclude that the purpose of guarding against the possible influence of inaccurate polls late in the election campaign by allowing for a period of criticism and scrutiny immediately prior to election day, is a pressing and substantial objective. ... The purpose of this particular limitation on expression is to ensure that information which the evidence indicates has an important influence on the choice of at least some voters is presented according to the standards of accuracy which polls are normally expected to attain. When pollsters and the media present information which aspires to certain scientific standards of quality, and which invites reliance by voters in the exercise of their vote, then the government may legitimately be concerned. Such information is qualitatively different from partisan rhetoric, or even journalistic reporting which aspires to certain standards of accuracy and objectivity. Polling information is presented scientifically which reflects relatively settled and defined standards for determining accuracy. To the extent that the votes of some might be distorted as a result of polls being presented in a misleading fashion, this is a pressing and substantial objective.
4. Rational Connection The three-day blackout period on the publication of polls will serve, to some degree, the purpose of preventing the use of inaccurate polls by voters. The blackout period gives critics the opportunity to assess the methodological information made available by the pollster and to question the validity of the poll on that basis. To that extent, the ban is rationally connected to the purpose of the legislation. However, s. 322.1 does not prevent an opinion survey from being released without any information as to methodology. Thus, there may be cases where it would be impossible for outside observers to scrutinize or challenge the validity of a poll. In those cases, the most that could be achieved by the blackout period is that the validity of a poll could be undermined by pointing out the failure of the pollster to publish the methodology of the poll. Having mentioned this infirmity in the connection between the purpose of the provision and the means designed to carry out that purpose, I prefer to focus my analysis of the inadequacies of this legislation under the rubric of minimal impairment.
5. Minimal Impairment Section 322.1 does not minimally impair the right to freedom of expression guaranteed in the Charter and is, therefore, not justified under s. 1. Indeed, it is my view that s. 322.1 is a very crude instrument in serving the purpose articulated by the government in this case. ... As I have stated at the outset, the type of proof required to discharge the burden of justification on the government may vary from case to case depending on the context. In this section, I address a number of contextual factors pertaining to the seriousness and likelihood of the harm, as well as the standard and methods of proof in a case such as this one involving the evaluation of social science evidence and human behaviour. These contextual factors bear on the degree of deference which a court should accord to the particular means chosen to implement a legislative purpose [].
The first factor which could militate in favour of a deferential approach towards the legislation is the vulnerability of the group sought to be protected. In this case, however, the social science evidence did not establish that the Canadian voter is a vulnerable group relative to pollsters and the media who publish polls. The presumption in this Court should be that the Canadian voter is a rational actor who can learn from experience and make independent judgments about the value of particular sources of electoral information. As Professor Lachapelle's Study indicates, some voters clearly do consider polls to be of some value in making their electoral decision []. However, no evidence has been presented before this Court that voters have suffered from any misapprehensions regarding the accuracy of any single poll. Indeed, the fact that polls conducted contemporaneously yield differing results, or that poll results can fluctuate dramatically over time, suggests that voters have experience with the shortcomings of some polls. Indeed, perhaps the most important contextual factor in the analysis of this case is that polls are widely available throughout the election period in large numbers and from differing media sources. ... Voters are constantly exposed to opinion poll results throughout the election and a single inaccurate poll result is likely to be spotted and discounted appropriately.
The government responded to the paucity of evidence relating to this specific issue by stating that it was sufficient "to show a reasoned apprehension of harm. ... It relied on a number of cases for the proposition that even in the face of inconclusive social science evidence, the Court has adopted a deferential approach to determining whether the harm exists and in assessing the justification of the measures chosen to prevent those harms []. In my view, the principles developed in those cases are not applicable here for three fundamental reasons. First, the presumptions which the Court made in those cases were not refuted by any contrary logical reasoning. That is not the case here. What I have said in the previous paragraph suggests, as a matter of logic, that there is reason to believe that, notwithstanding the scientific "aura" of polls, the Canadian voter is likely to be aware of a seriously inaccurate poll. Indeed, the more serious the inaccuracy, the more likely the awareness of the error. This is not to say, of course, that some voters might not be misled by an inaccurate poll and cast their vote on what amounts to a misrepresentation. Indeed, that possibility is precisely what I have found constitutes the pressing and substantial objective of this provision. The point here is simply that the claims of widespread or significant harm based on logical inferences derived from surrounding factors are not compelling in the context of factors which refute such logical inferences. As a matter of logical reasoning and inference, I find the government's claims of harm to be controverted by surrounding circumstances which suggest that the Canadian voter is already sensitive to the danger which the government is seeking to remedy.
Second, there is no suggestion in this case that the interests of the voter and of the pollster are opposed, or that the latter will systematically attempt to manipulate the former. This sets this case apart from cases involving advertisers..., where advertisers encouraged choices which served their particular interests. Although it was legal for each of them to pursue those interests, and therefore legitimate to do so, there was a danger of undue manipulation..., and of serious health consequences for individual Canadians... . Thus, not only was the government dealing with a situation in which expression would be used to manipulate vulnerable groups, but also in which there was a balancing of conflicting but legitimate social interests. None of those elements are present in the case at bar. There is no interest which favours inaccurate or misleading polls being foisted on the Canadian public. The media have an interest in providing poll results which are of interest to Canadians and which uphold their reputation for integrity and accuracy. Pollsters have an interest in maintaining a reputation for accurately measuring public opinion and election results. Although some individual polling firms have close relationships with particular parties which might encourage them, consciously or unconsciously, to tailor their methodologies in favour of their valued client, the polling industry as a whole does not favour one party over another... . To the extent that individual polls may reflect a bias, divergent opinion survey results reflecting these biases will be obvious to voters and diminish the scientific aura of those polls. Voters, the third interested group, also desire accurate polls so that if they choose to rely on them, the most accurate and timely polls will be available. Unlike the advertising cases, this is not a case in which the government is intervening against a powerful interest to prevent expression from being a means of manipulation and oppression.
Third, the reasonable apprehension of harm test has been applied where it has been suggested, though not proven, that the very nature of the expression in question undermines the position of groups or individuals as equal participants in society. This has been accepted, in particular, when it is difficult or impossible to establish scientifically the type of harm in question. The respondent relied particularly on the reasoning in Butler []... . In my view, the reasoning used in that case is not applicable here. In Butler, the difficulty of scientifically proving the harm in question was not the only feature of the case justifying the application of the reasonable or reasoned apprehension of harm test. First, there was, in that case, "a substantial body of opinion that holds that the portrayal of persons being subjected to degrading or dehumanizing sexual treatment results in harm, particularly to women and therefore to society as a whole" []. In this regard, at least, the reasonable apprehension of harm test was unnecessary. The difficulty which required the application of the reasonable apprehension of harm test was determining exactly what representations of a sexual nature were degrading or dehumanizing. ...
In the context of that decision, there was substantial evidence that depiction of degrading treatment of women leads, to an indeterminate extent, to degrading treatment of women in society. Although the precise nature of the link between depiction and attitudes, and from attitudes to actual harmful behaviour towards women, could not be conclusively proven, there was evidence that this harm actually occurred. The presumption also accords with certain logical inferences and shared perceptions of human behaviour which we might simply call "common sense". Sopinka J. concluded that the line between permissibly and impermissibly degrading representations of sexuality should be based on a collective social understanding of what Canadians believe could lead to anti-social behaviour. While courts should not use common sense as a cover for unfounded or controversial assumptions, it may be appropriately employed in judicial reasoning where the possibility of harm is within the everyday knowledge and experience of Canadians, or where factual determination and value judgments overlap. Canadians presume that expressions which degrade individuals based on their gender, ethnicity, or other personal factors may lead to harm being visited upon them because this is within most people's everyday experience. In part, this is because of what we know and perhaps have experienced in our own lives about degrading representations of our personal identity. In part, it is because we know that groups which have historically been disadvantaged in economic or social terms are vulnerable to such expression. In part, it is because our values encourage us to be solicitous of vulnerable groups and to err on the side of caution where their welfare is at stake. In part, it is based on the short logical leap that degrading representations, and exhortation of certain views which degrade the humanity of others, can beget that behaviour. It is also because we know that such representations and exhortations can themselves be harmful for those who are forced to endure the heightened risk of harm. ...
Common sense reflects common understandings. In these cases dealing with pornography and hate speech, common understandings were accepted by the Court because they are widely accepted by Canadians as facts, and because they are integrally related to our values, which are the bedrock of any s. 1 justification. As a result, the Court did not demand a scientific demonstration or the submission of definitive social science evidence to establish that the line drawn by Parliament was perfectly drawn.
In my view, the case at bar does not approach this category of reasoning. The Canadian voter is not a historically vulnerable or disadvantaged group. Nor, as has been explained above, is the autonomy or dignity of any single group under attack from, or even facing the contrary interests of, another potentially more powerful group. Nor can it be said that there is a shared understanding amongst Canadians that a single inaccurate poll will mislead Canadians to an extent which [is undue]. I am, therefore, unable to accept that the harm which the government is seeking to prevent affects a large number of voters, or that such possible distortions are significant to the conduct of an election, without more specific and conclusive evidence to that effect. Although there is a pressing and substantial objective..., I am not willing to go further and accept that the harm in this case warrants a significant level of deference to the government in fashioning means which trespass on the freedom of expression. ...
The provision in this case is also overbroad and underbroad in relation to the purpose of the legislation. The ban imposed in this case is overbroad because it prohibits in the final three days of an election campaign the publication and use by voters of all those polls which would meet the usual standards of accuracy. Its underbreadth has already been mentioned in the rational connection analysis: the blackout period may not adequately disabuse voters of an erroneous impression left by a poll which did not disclose its methodology to critics or the public. Indeed, as a matter of logic, the utility of the ban as a period of response and criticism is gravely undermined by the failure to require the publication of methodological information. Both the Lortie Commission [], and Professor Lachapelle [], recommended that methodological information be disclosed in addition to a blackout period. ...
This evidence supports the view that the mandatory disclosure of methodological information combined with a blackout period fulfils the government's purpose more effectively than the mandatory disclosure alone. What we are dealing with here, however, is a blackout period without a mandatory disclosure of methodology. In assessing whether this provision is narrowly tailored, the obvious alternative which Parliament could have adopted was a mandatory disclosure of methodological information without a publication ban. ... Although such a provision would still leave the door open to inaccurate poll results published immediately prior to the election having some impact, that possibility would be significantly reduced both by virtue of the reader's initial access to those methodological data, and by the opportunity for rapid response by parties whose interests are prejudiced by the inaccurate poll. The government has not explained, however, how or whether this danger is any less than that of a poll published prior to the three-day blackout period without methodological data which is effectively immune from the reasoned criticism which the blackout period purports to allow. The failure to address or explain the reason for not adopting a significantly less intrusive measure which appears as effective as that actually adopted weighs heavily against the justifiability of this provision.
The respondent countered this concern by suggesting that a law requiring pollsters to publish methodological information along with the poll results is actually more intrusive on the freedom of expression than the three-day ban. I would reject this argument. ... Whether a ban over a three-day period can properly be described as a "complete ban" is a subtle point. It is clear, however, that a provision which prohibited the publication of opinion polls without methodological information would be less intrusive to freedom of expression than a ban on publication of polling information during a crucial period. In the first case, the speaker has a choice: by complying with the prescribed conditions, he or she may engage in the speech. In the case of the ban, the speaker has no such choice: the information may not be expressed regardless of any choice the speaker makes. ...
The respondent pointed to the presence of similar blackout periods on public opinion surveys in other democratic countries to support its argument that this measure fell within the permissible range of alternatives. I do not find this evidence to be highly persuasive. Although a number of countries do have such provisions, most democratic countries have minimal or no restrictions on polling information[ ]. ... Moreover, some of the bans on publication of polling information in other countries extend for very long periods, even the entire election campaign. This suggests that the purpose of those bans may be something other than ensuring that polls are as accurate as possible, which is the only permissible objective under our Charter. Where the approach in other countries is variable, or is in some relevant way different from the legislation under scrutiny in Canada, then those legislative measures must be examined more closely to determine their precise purpose and whether those purposes are of persuasive force here. Not only may the social context be quite different from that in Canada, but also the legal context within which measures restricting the freedom of speech are evaluated may be dissimilar. In the absence of some consensus in the international context, or of evidence explaining why the provisions adopted in some other free and democratic countries are compelling given the situation in Canada, the experience of some other countries as a justification under s. 1 should not be accorded great weight. ...
In summary, I find that the blackout period does not minimally impair the freedom of expression guaranteed in the Charter, and is therefore not justified under s. 1. ...
6. Proportionality Between the Deleterious Effects and the Benefits of the Ban The third stage of the proportionality analysis was originally formulated in [Oakes]... .
This formulation has been criticized as merely duplicating what is already accomplished by the first two stages of the proportionality analysis. As a practical matter, this is confirmed by the jurisprudence of this Court: there appears to be no case in which a measure was justified by the first two steps of the proportionality analysis, but then found unjustified by an application of the third step.
More recent cases have reformulated the third stage of the proportionality analysis in order to give it a distinct scope and function. In Dagenais [], Lamer C.J. articulated the test as follows:
He went on [] to state:
... The third stage of the proportionality analysis performs a fundamentally distinct role. Determining whether there is a pressing and substantial objective behind the provision under scrutiny necessarily occurs in the abstract, before the specific nature of the legislation and its impact on the Charter right has been analysed. Of course, ascertaining that objective requires a consideration of what the provision actually does, as well as documentary evidence as to what the legislator thought it was doing. Moreover, the relevant purpose is the purpose specific to the provision which limits the Charter right. But the purpose must, nevertheless, be articulated abstractly because a purpose is a goal or outcome which, by definition, may be achieved in different ways. Before the specific effects of the measure in question have been scrutinized and concretized through the first two steps of the proportionality analysis, it is often difficult to assess, in the abstract, the possible impact on Charter freedoms of a laudable legislative objective. The focus of the first and second steps of the proportionality analysis is not the relationship between the measures and the Charter right in question, but rather the relationship between the ends of the legislation and the means employed. Although the minimal impairment stage of the proportionality test necessarily takes into account the extent to which a Charter value is infringed, the ultimate standard is whether the Charter right is impaired as little as possible given the validity of the legislative purpose. The third stage of the proportionality analysis provides an opportunity to assess, in light of the practical and contextual details which are elucidated in the first and second stages, whether the benefits which accrue from the limitation are proportional to its deleterious effects as measured by the values underlying the Charter. As Professor Jamie Cameron states ("The Past, Present, and Future of Expressive Freedom Under the Charter" (1997), 35 Osgoode Hall L.J. 1, at p. 66:
The deleterious effects which may arise from an infringement of the Charter may be general, in the sense that any serious infringement of the right to freedom of expression may impair the climate of free exchange of ideas which is an essential value of our society; or the deleterious effects may be specific, in that a particular benefit which would accrue from the speech in question is prevented. Although both of these possible effects will and should be considered in deciding whether there is a pressing and substantial objective of the legislation, the focus at that stage is more in determining whether there is a significant harm which the government is addressing. Comparing the harm which may be prevented with the harm of the infringement itself is a balancing which can most effectively take place within the context of the proportionality analysis. ...
This analysis directly addresses the relationship between otherwise justified measures and the extent of harm to the Charter right. This weighing exercise necessarily admits of some subjectivity, but this is lessened by the analysis of the purposes, the rationality, and the efficiency of the legislation required by the previous stages of the Oakes test.
The impact on freedom of expression in this case is profound. This is a complete ban on political information at a crucial time in the electoral process. The ban interferes with the rights of voters who want access to the most timely polling information available, and with the rights of the media and pollsters who want to provide it. It is an interference with the flow of information pertaining to the most important democratic duty which most Canadians will undertake in their lives: their choice as to who will govern them. Such a polling ban also sends the message that the media in their role as a reporter of information, and not as an advertiser, can be muzzled by the government. Rather than approaching the problem of inaccurate polls as a question of too little information, or added incentives for preventing the publication of inaccurate polls, the government constrains the range of evaluations that a voter is permitted to make in fulfilling their sacred democratic function as a citizen. It justifies such a measure on the basis that some indeterminate number of voters might be unable to spot an inaccurate poll result and might rely to a significant degree on the error, thus perverting their electoral choice.
In my analysis above, I have found that despite the many factors militating against the realization of this misinformed choice, including the presence of many other polls in the public domain both prior to and concurrent with the erroneous poll, such a scenario is conceivable for a small number of voters. However, in my view, the government cannot take the most uninformed and naïve voter as the standard by which constitutionality is assessed. ... That is to reduce the entire Canadian public to the level of the most unobservant and naïve among us. This concern is also very remote from any danger that the guarantee of effective representation will be undermined.
My view is that, given the state of the evidence before the Court on this issue, the postulated harm will seldom occur. The benefits of the ban are, therefore, marginal. The deleterious effects are substantial. First, the ban sends the general message that the media can be constrained by government not to publish factual information. Second, it interferes with the reporting function of the media with respect to the election, which is an interference with the freedom of the media when its participation is most crucial to self-governance. These are the deleterious effects as they relate to the freedom of the speaker. But third, the ban denies access to electoral information which some voters may consider very useful in deciding their vote. If they feel that their votes are better informed as a result of having this information, then the ban not only interferes with their freedom of expression, but with their perception of the freeness and validity of their vote. This undermines the very faith in the electoral process which the government suggests is one of the rationales for this ban.
In my view, the doubtful benefits of this ban are outweighed by its significant and tangible deleterious effects and therefore is not justified under the third stage of the proportionality analysis. The very serious invasion of the freedom of expression of all Canadians is not outweighed by the speculative and marginal benefits postulated by the government. This is not to say that there is no possibility for Parliament to legislate with regard to the dangers that represent bad polls. As mentioned earlier, the present legislation was found to be defective not with regard to its purpose, but with regard to the fact that the means chosen to carry out that purpose did not satisfy the minimal impairment and proportionality tests.
VII. Disposition I find that s. 322.1 of the Canada Elections Act infringes s. 2(b) of the Charter and that it is not a reasonable limit on freedom of expression under s. 1. ... B. MONEY AND POLITICS
Can there be too much speech?
Royal Commission on Electoral Reform and Party Financing (Lortie Comm.) Ministry of Supply and Services, 1991
Chapter 6 - Fairness in the Electoral Process
Our Canadian Political tradition has long recognized the freedoms of expression and association for election debate and competition among political parties...
Central to the recognition of these rights and freedoms is the principle of equality. Canadians are to be treated equally in their claim to these freedoms and rights; each possesses the same status. This equality of status is not meant to be a mere formality. Rather, the purpose of the Charter recognition of these rights and freedoms is that they be secured equally by all citizens. This purpose cannot be realized simply by a declaration of formal equality.
Laws are required to give meaningful expression to the equality principle implicit in these Charter rights and freedoms. The constitutional recognition of these rights and freedoms constitutes a necessary but insufficient condition if citizens are to have an equal opportunity to exercise meaningful influence over the outcome of election. For this fundamental equality of opportunity to be realized in the electoral process, our electoral laws must also be fair. In other words, the Charter establishes the equality of citizens; only if electoral processes themselves have the property of fairness, however, can this outcome be achieved in practice. This accords with the predominant view of Canadians that the federal electoral process must first and foremost reflect and promote fairness. []
Fairness is thus the central value that must inform electoral laws if they are to promote the desired outcome of the equality of citizens in the exercise of their democratic rights and freedoms by setting a standard that the law must meet in regulating behaviour or providing benefits. Electoral laws are fair only to the degree that they promote the meaningful exercise of the rights and freedoms essential to a healthy electoral democracy... .
Canadian law has long regulated the role and use of the broadcasting media through both election and broadcasting laws. The justification for such regulation has been based on the particular characteristics of radio and television media, for which, because airtime is by definition finite, rules relating to access and broadcast time are required. From the outset, the regulation or radio and television access and time had to recognize that the freedom of expression of parties had to be limited in some respects to secure the meaningful exercise of this freedom by parties and the right of voters to hear a reasonable representation of the points of view of all parties. This required an explicit Afairness doctrine@ to provide access to and to allocate time on these media.[]
Since 1974, freedom of expression has been further affected by the spending limits imposed on candidates and registered parties and by the restrictions on independent election spending by other individuals and groups under the Canada Elections Act. The adoption of these limits and restrictions sought to ensure the equal opportunity of each candidate and party to exercise freedom of expression in the electoral process in a meaningful manner. This was achieved by limiting the capacity of one or more candidates or parties, or others who might directly promote or oppose them, to dominate election discourse simply because they could afford to buy more media time or space. The 1974 law also sought to enhance fairness in the opportunities of candidates and parties to attain meaningful freedom of expression by providing partial reimbursements for candidates and party election expense and income tax credits for political contributions. In addition to supporting the right of individuals to candidacy and the rights of individuals to participate through political parties, these provisions recognized that public funding was important to allow candidates and parties a fair opportunity to mount effective campaigns through the mass media.
Electoral laws promote fairness in the exercise of freedom of expression only to the extent that there are reasonable opportunities for citizens, particularly candidates, as well as political parties to present their case to other voters. Freedom of expression in this respect is crucial to the realization of the fundamental objectives of our electoral democracy. In addition to a meaningful right to vote, to be a candidate and to join with others through political parties to promote shared political aims, voters must be able to influence the outcome of an election by communicating freely to other voters their own views about candidates and parties. Freedom of expression in this sense is both a democratic right in itself and a means to the realization of other democratic rights. Free and democratic elections are not possible without freedom of expression.
Freedom of expression in the electoral process, however, cannot be meaningfully achieved unless the laws that govern this process explicitly seek to promote fairness in the exercise of this freedom. In this critical respect, the electoral law should not presume that all participants will have equal resources to communicate with the electorate. To do so would be to ignore the fact that different participants draw on different bases of political support to finance their electoral campaigns. Nor should electoral law assume that inequalities among participants are irrelevant to the outcome of elections. To do so would be to ignore the know effects of political communication: the capacity to communicate often, to use different media and to develop messages with the assistance of marketing and advertising experts is a significant factor in the political persuasion of voters.
In these reports, the electoral process must not be equated with the economic marketplace. A fundamental and inherent feature of democratic rights is that, unlike economic assets, they are universally distributed. They are acquired and exercised freely without any monetary charge, and they cannot be bought and sold. For instance, electoral laws explicitly state that a voter may not Asell@ her or his vote in exchange for any benefit. The marketplace prescribes an equality of opportunity to participate but allows relatively free rein for individuals and groups to advance their economic self-interests by accumulating unequal amounts of resources. In direct contrast, at the heart of the electoral process lies the principle of the equality of voters. The importance of this principle has been captured by the eminent political scientist, Robert Dahl: AIf income, wealth, and economic position are... political resources, and if they are distributed unequally, then how can citizens be political equals? And if citizens cannot be political equals, how is democracy to exist?@[]
How and where a democratic society draws the line between the domain of democratic rights and that of the marketplace are matters of continuing debate. There is an inherent tension between the freedom to do fully as one wishes to advance one=s political interests or political cause, with whatever resources one has at one=s disposal, and the rights of others to participate equally in the governance of their political society....
Because discrepancies in resources directly affect the ability to acquire media time or space to communicate a message, unrestricted freedom to express political views during an election cannot prevent some electoral communications from overwhelming the communications of others, thereby advantaging one political point of view. As Robert Mutch has written, ALimits cannot increase the speech opportunities of the nonwealthy majority, but they do reduce the degree to which the debate is dominated by wealth.@ []
The objective of fairness in the regulation of election spending, therefore, is neither to control the costs of elections for the principal Aplayers@, namely candidates, parties and their partisan supporters, nor to advantage them over other independent individuals or groups. Rather, it is to ensure that some are not able to dominate election discourse because of their financial resources. In the words of the noted political theorist, John Rawls:
... Without fairness, we may continue to have a Afree@ society, but we would certainly diminish the Ademocratic@ character of our society. The Charter couples these two dimensions. It is essential that both Parliament and the courts acknowledge this fundamental fact.
Given the centrality of fairness as a fundamental condition of equality of opportunity in the electoral process, the electoral regulatory framework must be rebuilt. This requires a law with provisions that promote fairness by limiting the election expenses of candidates and parties, by securing access to the broadcast media, and by also limiting, but not ruling out, the opportunity for other individuals and groups to spend independently of candidates and parties during the election period in ways that may directly or indirectly affect the election outcome for at least one candidate or party.... Notes and questions
1. The Canada Elections Act contains extensive provisions regulating many aspects of the election process for federal elections, including provisions requiring political parties to register, limitations on contributions to and expenditures of registered political parties, reimbursement of expenses, tax deductibility of contributions to registered political parties, and free time and guaranteed access to the broadcast media. The recommendations of the Lortie Commission build on that existing framework.
2. Do you agree that there is a need to equalize Aresources@ in order to ensure fairness in the political process? If so, why are we just seeking to equalize financial resources? For example, if Wayne Gretzky decides to run in an election he brings to the election the existing resource of broad public and media recognition as well as an access to the media that would create a great inequality for most opponents. Pierre Trudeau brought to the political process a public speaking ability that made him a forceful opponent. How are these resources to be equalized? Isn=t the expenditure of money the only way that an unknown could challenge such public recognition?
3. The argument that there can be Atoo much speech@ is addressed by the extract from the dissenting opinion of Scalia J. in the Austin case, below. Restrictions on Campaign Contributions and Expenditures
Libman v. Quebec (Attorney General) [1997] 3 S.C.R. 569
The Court
This appeal concerns the constitutional validity of certain provisions of Appendix 2 of the Referendum Act, R.S.Q., c. C-64.1, in light of ss. 2(b) and 2(d) of the [Charter], which protect freedom of expression and freedom of association. ...
I. Facts The appellant, Robert Libman, was president of the Equality Party and a member of the National Assembly when, in 1992, he brought a motion in the Superior Court for a declaratory judgment in anticipation of the referendum on the Charlottetown Accord. The purpose of the motion, which was brought jointly with the Equality Party, was to have ss. 22, 25, 36, 37 and 38 of the Referendum Act and ss. 91 para. 1, 402, 403, 404, 405, 406 paras. 1, 2 and 3, 412, 413, 414, 416, 417, 426, 427 and 430 of Appendix 2 of that Act declared invalid and of no force or effect. ...
The Superior Court dismissed the motion []... . Only Mr. Libman appealed the trial judgment. Furthermore, his challenge was now limited to the constitutional validity of ss. 402, 403, 404, 406 para. 3, 413, 414, 416 and 417 of Appendix 2 of the Referendum Act, and to the infringement of freedom of expression and freedom of association. The majority of the Court of Appeal dismissed the appeal... . Brossard J.A., dissenting in part, would have allowed the appeal and declared certain of the impugned provisions to be of no force or effect. ...
II. Impugned Statutory Provisions and Operation of the Referendum Act The Referendum Act governs referendums in Quebec. It lays down the general framework for the organizational structures necessary for the holding of any referendum. Section 44 reads as follows:
The regulations made under the Election Act and writs made under the said Act apply, mutatis mutandis, to a referendum.
Appendix 2 of the Referendum Act thus incorporates certain provisions of the Election Act, R.S.Q., c. E-3.3, amending them to adapt them to referendums. Section 45 of the Referendum Act provides that the chief electoral officer must cause a version of the Election Act, as amended by Appendix 2 of the Referendum Act, to be printed... . In preparing the special version, the chief electoral officer may amend the titles and subtitles of the said Act.
The chief electoral officer shall also cause to be printed a special version of the regulations made pursuant to sections 549 and 550 of the Election Act.
The chief electoral officer accordingly published the Special Version of the Election Act for the holding of a Referendum (hereinafter "Special Version"), which facilitates the use of Appendix 2 of the Referendum Act.
All the statutory provisions at issue here are provisions of the Election Act as amended by Appendix 2 of the Referendum Act, namely ss. 402, 403, 404, 406 para. 3, 413, 414, 416 and 417. For ease of reference, we shall cite the impugned provisions as they appear in the Special Version:
For the purposes of subparagraph 7 of the first paragraph, the permanent office of an authorized party is the office where the employees of the party or of a body associated with it for the purpose of attaining its objects and recognized by the leader of the party for such a purpose by a letter addressed to the chief electoral officer before the seventh day following the issue of the writ, work on a permanent basis, outside the referendum period, at ensuring the dissemination of the party's political program and coordinating the political action of the party members.
A person may, however, contribute his personal services and the use of his vehicle without remuneration, provided that he does so freely and not as part of his work in the service of an employer.
As already mentioned, the Referendum Act read together with the Special Version sets out a series of measures relating to the organization of a referendum. The Act applies during a "referendum period", which is defined as "the period beginning on the day of the writ instituting the holding of a referendum and ending on polling day" (s. 1). The government's writ is issued after the National Assembly has approved the question or adopted the bill that is to be submitted to a referendum (ss. 7 and 13).
Chapter VIII of the Referendum Act concerns the organization of a referendum campaign. Upon the adoption by the National Assembly of a question or bill that is to be submitted to a referendum, the secretary general of the National Assembly must inform the chief electoral officer thereof and send every member of the National Assembly a notice to the effect that they may, within five days after the adoption of the question or bill, register with the chief electoral officer in favour of one of the options submitted to the referendum (s. 22). Members of the National Assembly who register for an option form the provisional committee for that option (s. 23 para. 1). If no members have registered in favour of one of the options within the prescribed time, the chief electoral officer invites electors to form a provisional committee for that option (s. 23 para. 2). The number of provisional committees is thus equal to the number of options submitted to the referendum. After the provisional committees have been formed, the chief electoral officer calls a meeting at which the members of each provisional committee are to establish the national committee in favour of their option, adopt the by-laws that will govern it and appoint its chairman (s. 23 para. 3). The by-laws are adopted on a majority basis (s. 25).
Section 24 of the Referendum Act reads as follows:
Such by-laws may also provide for the setting up of local authorities of this committee in each electoral division, provided that each of these authorities is authorized by the chairman of the national committee.
These by-laws must furthermore provide for the affiliation to the committee of groups which are favourable to the same option and see to the establishment of the norms, conditions and formalities governing the affiliation and financing of these groups.
This section thus provides, inter alia, that the by-laws adopted by the provisional committee govern all matters relating to the establishment and operation of the national committee. The third paragraph of s. 24 adds that the by-laws must provide for the affiliation of groups favourable to the same option and ensure the financing of such groups. Groups wishing to participate in a referendum campaign for a given option can therefore either directly join the national committee supporting the same option or affiliate themselves with it. Thus, a group that disagrees with the strategy proposed by the national committee advocating the same option as it does could affiliate itself with the national committee rather than joining it directly.
Division IV of Chapter VIII of the Referendum Act provides for the financing of the national committees and imposes limits on the amounts each national committee and its affiliated groups can spend. The national committees and their affiliated groups have a right to incur "regulated expenses" (this term will be defined infra), which must in all cases be paid out of a "referendum fund" (s. 36). The only amounts that can be paid into each national committee's referendum fund are: (a) the government subsidy provided for in s. 40; (b) any amounts transferred or loaned to the fund by the official representative of a political party authorized under Title III of the Election Act, provided that the total of these amounts from all parties does not exceed $0.50 per elector in the aggregate of the electoral divisions; and (c) any contributions directly paid by an elector out of his or her own property (s. 37). In the case of these last contributions, the maximum amount that each elector can contribute to each national committee in the same referendum is $3000 (s. 91 Special Version). Finally, regardless of the size of the referendum fund available to a national committee, the committee and its affiliated groups may not incur regulated expenses greater than the equivalent of $1 per elector (s. 426 Special Version). Thus, if there are 3 million electors in the province, the total of the regulated expenses incurred by each national committee and its affiliated groups may not exceed $3 million. This is the "ceiling" on spending to which each committee is subject.
Regulated expenses are defined as "[t]he cost of any goods or services used during the referendum period to promote or oppose, directly or indirectly, an option submitted to a referendum" (s. 402 Special Version). Section 403 Special Version complements s. 402; it sets out how to calculate the part of the cost of goods or services used both during and before the referendum period that constitutes a regulated expense. Each national committee has an official agent to incur its regulated expenses (s. 405 Special Version) who is appointed by the chairman of the national committee. The official agent may authorize deputies or local agents he or she has appointed to incur or authorize regulated expenses up to the amount the official agent has fixed in their deeds of appointment (s. 406 paras. 2 and 3 Special Version). The official agent may change this amount at any time before filing his or her return of regulated expenses (s. 406 para. 3 Special Version). During the referendum period, only the official agent of a national committee or his or her deputies or local agents may incur or authorize regulated expenses (s. 413 Special Version); furthermore, these regulated expenses must necessarily be paid out of the national committee's referendum fund (s. 414 Special Version). No one may accept or execute an order for regulated expenses not given or authorized by a national committee's official agent, his or her deputy, a local agent or an authorized advertising agency (s. 416 Special Version). Nor may any one claim or receive a different price for goods or services whose cost is wholly or partly a regulated expense; however, a person may provide personal services and the use of his or her vehicle, provided that this is done without monetary consideration and freely, and not as part of his or her work in the service of an employer (s. 417 Special Version).
Section 404 Special Version sets out nine exceptions to the definition of regulated expenses. These exceptions constitute expenses that may be incurred without the approval of a national committee's official agent, his or her deputy or a local agent. These unregulated expenses include in particular: (1) the cost of publishing articles, editorials and certain other types of documents, provided that they are published without payment; (2) the cost of producing, promoting and distributing a book that was planned to be put on sale at the prevailing market price before the writ was issued; (3) the cost of broadcasting, by radio or television, of a program of public affairs, news or commentary, provided that the program is broadcast without payment; (4) reasonable expenses incurred by a person out of his or her own money for meals and lodging while travelling for referendum purposes together with his or her transportation costs, provided that these expenses and costs are not reimbursed to the person; and (5) the costs, to a maximum of $600, of holding a meeting, including the cost of renting a hall and of convening the participants, provided that the meeting is not directly or indirectly organized on behalf of a national committee.
Finally, the Referendum Act also provides for the establishment of a Conseil du référendum, which has exclusive jurisdiction to hear any judicial proceedings relating to a referendum and to the application of the Act (ss. 2 to 6). The Conseil is composed of three judges of the Court of Québec. Its decisions are final and without appeal, although an appeal lies to the Court of Appeal on a question of law from a decision rendered by the Conseil under s. 41 or 42. ...
V. Analysis
A. Constitutional Infringements The appellant submits that the impugned legislation infringes the freedom of political expression and the freedom of association guaranteed by the Canadian Charter. He argues that if he wishes to conduct a referendum campaign independently of the national committees, his freedom of political expression will be limited to unregulated expenses. Conversely, if he wishes to be able to incur regulated expenses, he will have to join or affiliate himself with one of the national committees.
The Court has consistently and frequently held that freedom of expression is of crucial importance in a democratic society []. In Edmonton Journal [], Cory J. wrote eloquently about how fundamental this freedom is in any democracy... .
Freedom of expression was not created by the Canadian Charter but rather was entrenched in the Constitution in 1982 as one of the most fundamental values of our society (see, for example, Switzman v. Elbling []).
In Keegstra [], Dickson C.J. stressed the paramount importance for Canadian democracy of freedom of expression in the political realm... .
Political expression is at the very heart of the values sought to be protected by the freedom of expression guaranteed by s. 2(b)... .
Irwin Toy [] laid down the tests for infringement of freedom of expression. The Court must ask, first, whether the form of expression at issue is protected by s. 2(b) and, second, whether the purpose or effect of the impugned legislation is to restrict that form of expression. ... There is no doubt that the appellant is attempting to convey meaning through the form of communication at issue; he wishes to express his opinions on the referendum question independently of the national committees by means of expenses that are included in the definition of "regulated expenses". This is a form of political expression that is clearly protected by s. 2(b) of the Canadian Charter.
It remains to be determined whether the provisions challenged by the appellant restrict freedom of expression. Sections 402 and 403 Special Version establish the principle of "regulated expenses" during a referendum period. These expenses include the cost of any goods or services that promote or oppose, directly or indirectly, an option submitted to a referendum. Under s. 406 para. 3 and s. 413 Special Version, only an official agent of a national committee or one of his or her representatives may incur or authorize regulated expenses. Section 414 Special Version provides that regulated expenses may be paid only out of the referendum fund, which is available only to the national committees. Under s. 416 Special Version, no person may accept or execute an order for regulated expenses unless they are incurred or authorized by the official agent of a national committee or by one of his or her representatives. In s. 417 Special Version, the legislature has provided that no person may receive a price different from the regular price in payment of a regulated expense. Finally, s. 404 Special Version lists exceptions to regulated expenses, which are very restrictive. As has already been mentioned, the unregulated expenses listed in s. 404 comprise primarily forms of expression that do not require the disbursement of money or financial consideration. The only disbursement of money permitted is the maximum amount of $600 for organizing and holding a meeting.
Thus, to be able to incur regulated expenses, the Act requires that a person belong either to one of the national committees or to a group affiliated with one of the committees. Since the definition of regulated expenses is very broad, most of the expenses incurred to campaign during a referendum period fall into this category reserved exclusively for the national committees or affiliated groups. Certain categories of persons therefore do not have access to regulated expenses during a referendum campaign, in particular:
The Act accordingly places restrictions on such persons who, unlike the national committees, cannot incur regulated expenses during the referendum period in order to express their opinions and points of view. This clearly infringes their freedom of political expression. ...
Freedom of association is also infringed for similar reasons. As was pointed out earlier, there are groups that cannot incur expenses independently of the national committees to promote or oppose, directly or indirectly, one of the options submitted to a referendum. The forms of expression available to these groups are restricted. ...
... The infringement of freedom of association and the infringement of freedom of expression are closely related, and we shall analyse them together.
B. Justification for the Violation: Section 1 of the Canadian Charter The analytical approach developed by the Court in [Oakes], serves as a guide for determining whether an infringement can be justified in a free and democratic society. Certain clarifications were made regarding the third step of the proportionality test in [Dagenais]. ...
The Attorney General must show that the statutory restrictions can be justified under s. 1 of the Canadian Charter. The standard of proof to be used is the civil standard, namely proof on a balance of probabilities []. Scientific proof is not required to meet this standard: "the balance of probabilities may be established by the application of common sense to what is known, even though what is known may be deficient from a scientific point of view" [RJR-MacDonald]. Referendum campaigns fall within the realm of social science, which does not lend itself to precise proof.
(1) Objective of the Act The basic objective of the Act at issue is to guarantee the democratic nature of referendums by promoting equality between the options submitted by the government and seeking to promote free and informed voting. It provides for control of spending by the national committees during a referendum campaign, as well as control of spending by independent individuals or groups who do not wish to or who cannot join or affiliate themselves with either of the national committees, in order to promote a certain equality of access to media of expression. Professor Peter Aucoin, who was called by the Attorney General of Quebec to testify as an expert on the Canadian electoral and referendum system, explained the objective of the impugned provisions of the Referendum Act as follows:
Thus, the objective of the Act is, first, egalitarian in that it is intended to prevent the most affluent members of society from exerting a disproportionate influence by dominating the referendum debate through access to greater resources. What is sought is in a sense an equality of participation and influence between the proponents of each option. Second, from the voters' point of view, the system is designed to permit an informed choice to be made by ensuring that some positions are not buried by others. Finally, as a related point, the system is designed to preserve the confidence of the electorate in a democratic process that it knows will not be dominated by the power of money.
The appellant himself conceded that the objective of the impugned legislation is of pressing and substantial importance in a democratic society. In our view, the pursuit of an objective intended to ensure the fairness of an eminently democratic process, namely a referendum on a question of public interest, is a highly laudable one.
(2) Proportionality Test
(a) Rational Connection The Court must determine whether there is a rational connection between the restrictions imposed by the legislature and the legislature's objective.
The Quebec legislature has provided for two means to attain its objective: first, limiting referendum spending in order to ensure that each option will be entitled to comparable financial resources and to prevent either option from unduly influencing the outcome...; second, preventing unlimited spending by third parties in order to avoid an imbalance in the level of spending permitted for each option. It is this second means that the appellant is challenging in the name of the freedoms of expression and association. The appellant submits that independent individuals and groups who do not wish to or cannot join or affiliate themselves with one of the national committees are unjustifiably limited to the unregulated expenses provided for in the Act.
To better understand the rational connection between the objective of the Act and the statutory restrictions, it will be helpful to consider the 1991 report of the Royal Commission on Electoral Reform and Party Financing, which the Attorney General of Quebec adduced in evidence (Reforming Electoral Democracy: Final Report (1991), vol. 1). This federal Commission, better known as the Lortie Commission, was established in 1989 to inquire into the Canadian electoral system and customs. Its mandate was to present a series of recommendations aimed at improving and preserving the democratic character of federal elections in Canada.
Although the referendum system is different from the electoral system, in that the popular vote concerns a specific question and is not necessarily binding on the government whereas in an election the people vote to elect their political representatives for a specific mandate, the same principles underlying election legislation should in general be applicable to referendum legislation []. There are enough points of similarity between the two systems to draw such a parallel. Both involve setting up a procedural structure allowing for public discussion of political issues essential to governing the country or province and designed to ensure that the majority principle is adopted. In both elections and referendums, voters can freely express their choice after being informed of the issues during the election or referendum campaign... .
The Lortie Commission pointed out that expenses incurred in an election campaign -- advertising, for example -- have a considerable impact on the outcome of the vote (Lortie Commission []; testimony of Professor Peter Aucoin []. It recognized that spending limits are essential to ensure the primacy of the principle of fairness in democratic elections. The principle of electoral fairness flows directly from a principle entrenched in the Constitution: that of the political equality of citizens. If the principle of fairness in the political sphere is to be preserved, it cannot be presumed that all persons have the same financial resources to communicate with the electorate []. To ensure a right of equal participation in democratic government, laws limiting spending are needed to preserve the equality of democratic rights and ensure that one person's exercise of the freedom to spend does not hinder the communication opportunities of others. Owing to the competitive nature of elections, such spending limits are necessary to prevent the most affluent from monopolizing election discourse and consequently depriving their opponents of a reasonable opportunity to speak and be heard. Spending limits are also necessary to guarantee the right of electors to be adequately informed of all the political positions advanced by the candidates and by the various political parties. Thus, the principle of fairness presupposes that certain rights or freedoms can legitimately be restricted in the name of a healthy electoral democracy []. Elections are fair and equitable only if all citizens are reasonably informed of all the possible choices and if parties and candidates are given a reasonable opportunity to present their positions so that election discourse is not dominated by those with access to greater financial resources []. It should also be noted that 93 percent of the respondents to a national survey conducted by the Lortie Commission supported limits on spending by political parties []. This high percentage shows that the majority of Canadians agree with limiting election spending in order to promote fairness as a fundamental value of democracy.
For spending limits to be fully effective, they must apply to all possible election expenses, including those of independent individuals and groups. ...
The actions of independent individuals and groups can directly or indirectly support one of the parties or candidates, thereby resulting in an imbalance in the financial resources each candidate or political party is permitted. Such individuals or groups might either conduct a campaign parallel to that of one of the candidates or of a party and in so doing have a direct influence on the campaign of that candidate or party, or take a stand on a given issue and in so doing directly or indirectly promote a candidate or party identified with that issue. As the Lortie Commission pointed out in this regard, it is difficult to distinguish between partisan advocacy and advocacy by third parties in terms of influence on the vote; the objective of an election campaign is to influence the outcome of the vote, that is, the election of a candidate or of a political party. People do not vote for issues; nevertheless, the purpose or effect of the debate on the issues will be to influence the final vote. ...
It is also important to limit independent spending more strictly than spending by candidates or political parties. It cannot be presumed that equal numbers of individuals or groups will have equivalent financial resources to promote each candidate or political party, or to advocate the various stands taken on a single issue that will ultimately be associated with one of the candidates or political parties []. While we recognize their right to participate in the electoral process, independent individuals and groups cannot be subject to the same financial rules as candidates or political parties and be allowed the same spending limits. Although what they have to say is important, it is the candidates and political parties that are running for election. Limits on independent spending must therefore be lower than those imposed on candidates or political parties. Otherwise, owing to their numbers, the impact of such spending on one of the candidates or political parties to the detriment of the others could be disproportionate.
The 1988 federal election showed clearly how independent spending could influence the outcome of voting. During the 1988 election, there were no controls on independent spending. Elections Canada was not enforcing the provisions of the Canada Elections Act [] on spending limits for individuals and groups as a result of the decision in National Citizens' Coalition Inc. v. Canada (Attorney General) (1984), 11 D.L.R. (4th) 481 (Alta. Q.B.). ... During the 1988 election, independent spending on advertising exceeded $4.7 million (Lortie Commission []). Most of these advertisements were directed at the issue of free trade. The statistics showed that four times as much money was spent to promote free trade as was spent to oppose it. Thus, even if this spending was not necessarily partisan, it clearly favoured the Progressive Conservative Party indirectly. That party was the only one to advocate free trade; it therefore benefited considerably from this "indirect" independent spending. The Lortie Commission drew the following conclusion from that experience... :
Limits on independent spending are essential to maintain an equilibrium in the financial resources available to candidates and political parties and thus ensure the fairness of elections (Lortie Commission []. Furthermore, according to another survey conducted in 1991, 75 percent of Canadians supported limits on spending by interest groups (Lortie Commission []). These statistics also show the importance of controlling spending in order to maintain public confidence in the electoral system. In our view, the Lortie Commission's comments on the importance of limits on independent spending for preserving the fairness of the Canadian electoral system should apply, mutatis mutandis, to the Quebec referendum system. In a referendum, "options" are submitted to voters rather than candidates or political parties. The national committees are the principal structure set up by the Quebec legislature to promote each of these options. Spending by the national committees is subject to limits to ensure that equivalent financial resources are available to the proponents of each option for addressing the public. Referendum period spending limits are essential to guarantee the fairness of the referendum. The appellant does not contest this limit on the national committees.
However, the spending limit system would lose all its effectiveness if independent spending were not also limited. Spending by individuals or groups who do not wish to or cannot join or affiliate themselves with one of the national committees must be limited for the same reasons as underlie the limits on independent spending during an election campaign. Independent spending during a referendum campaign directly or indirectly favours one of the options over the others. Even independent individuals and groups advocating abstention indirectly favour one of the options over the others []. Independent spending must therefore be controlled to ensure that the promotion of one of the options does not benefit from far greater financial resources. The limit on independent spending must also be stricter than that granted to the national committees. Since it cannot be assumed that each option will benefit from the same amount of independent spending in its favour, such spending must be restricted to preserve a balance in the promotion of the options and favour an informed and truly free exercise of the right to vote. In this light, the regulation of referendum spending pursues one of the objectives underlying freedom of expression, namely the ability to make informed choices (Ford v. Quebec (Attorney General) []).
The appellant relied on Somerville v. Canada (Attorney General) (1996), 136 D.L.R. (4th) 205, in support of his submissions concerning the unfairness of the limits on independent spending in the Referendum Act. In that case, the Alberta Court of Appeal declared certain provisions of the Canada Elections Act [], relating to limits on independent spending similar to the ones at issue here to be unconstitutional. Among other things, these provisions allowed third parties to incur "advertising expenses" provided that they did not exceed $1000 and were not pooled. ... In the view of the Alberta Court of Appeal, the impugned legislation violated the freedoms of expression and association guaranteed by the Canadian Charter. It stressed that the objective of limiting third party spending was itself inconsistent with the Canadian Charter because it gave preferential treatment to the expression of candidates and political parties, to the detriment of third parties.
However, it is our view that the objective of Quebec's referendum legislation is highly laudable, as is that of the Canada Elections Act. We agree in this respect with the analysis of the Lortie Commission and of the expert witness P. Aucoin regarding the need to limit spending both by the principal parties (the national committees in the case of a referendum) and by independent individuals and groups in order to preserve the fairness of elections and, in the present case, referendums. The system set up by the legislature to ensure a certain equality of resources between the options submitted to a referendum and thereby enhance democratic expression would become ineffective if independent individuals and groups were allowed unlimited spending or spending with a ceiling similar to that of the national committees. ...
The evidence adduced by the Attorney General of Quebec demonstrates the need to prevent an unequal distribution of financial resources among the options that would undermine the fairness of the referendum process. The evidence also shows that unless independent spending is controlled, any system for limiting the spending of the national committees would become futile. In our view, there is clearly a rational connection between limits on independent spending and the legislature's objective.
(b) Minimal Impairment ... This Court has already pointed out on a number of occasions that in the social, economic and political spheres, where the legislature must reconcile competing interests in choosing one policy among several that might be acceptable, the courts must accord great deference to the legislature's choice because it is in the best position to make such a choice. On the other hand, the courts will judge the legislature's choices more harshly in areas where the government plays the role of the "singular antagonist of the individual" -- primarily in criminal matters -- owing to their expertise in these areas []. ...
The degree of constitutional protection may also vary depending on the nature of the expression at issue []. Since political expression is at the very heart of freedom of expression, it should normally benefit from a high degree of constitutional protection, that is, the courts should generally apply a high standard of justification to legislation that infringes the freedom of political expression.
What is the situation in the case at bar? In answering this question, the legislature's objective, namely to enhance the exercise of the right to vote, must be borne in mind. Thus, while the impugned provisions do in a way restrict one of the most basic forms of expression, namely political expression, the legislature must be accorded a certain deference to enable it to arbitrate between the democratic values of freedom of expression and referendum fairness. The latter is related to the very values the Canadian Charter seeks to protect, in particular the political equality of citizens that is at the heart of a free and democratic society. The impugned provisions impose a balance between the financial resources available to the proponents of each option in order to ensure that the vote by the people will be free and informed and that the discourse of each option can be heard. To attain this objective, the legislature had to try to strike a balance between absolute freedom of individual expression and equality among the different expressions for the benefit of all. From this point of view, the impugned provisions are therefore not purely restrictive of freedom of expression. Their primary purpose is to promote political expression by ensuring an equal dissemination of points of view and thereby truly respecting democratic traditions.
The role of the Court is to determine whether the means chosen by the legislature to attain this highly laudable objective are reasonable, while according it a considerable degree of deference since the latter is in the best position to make such choices. As Wilson J. stated in Lavigne v. Ontario Public Service Employees Union..., a failure to satisfy the minimal impairment test will be found only if there are measures "clearly superior to the measures currently in use".
It can be seen from the evidence that the legislature went to considerable lengths, in good faith, in order to adopt means that would be as non-intrusive as possible while at the same time respecting the objective it had set. The Quebec government first published a White Paper entitled Consulting the People of Québec (August 1977), which set out the objectives the government hoped to attain through referendum legislation and proposed means to attain those objectives... :
To do this, the government proposed a system similar to that which exists today: first, the establishment of umbrella committees for each option, which alone would be authorized to incur referendum expenses, second, the control of the spending and revenues of these committees, and, third, financial assistance provided by the government.
The proposal made in the White Paper on referendums was debated extensively before the Standing Committee of the President of the Council on the Constitution and Intergovernmental Affairs, when members of the National Assembly and numerous interveners submitted briefs and recommendations []. Following these debates, Robert Burns, the Minister of State for Electoral and Parliamentary Reform, tabled Bill 92, the Referendum Act, which was faithful to the original ideology, although the means to achieve it had been modified somewhat on the basis of certain recommendations. ...
One of the most important recommendations debated was that of the Commission des droits de la personne concerning affiliation. In its comments on Bill 92 in June 1978 [], it agreed with the bill's objectives and recognized that certain restrictions had to be imposed to attain them... .
It then pointed out that the bill severely restricted the freedoms of expression and association in requiring that groups wishing to participate in the referendum campaign join the national committees directly. To soften these restrictions, it proposed that the bill be amended to give groups a further possibility of affiliation... .
This proposal was adopted by the legislature, which amended its bill to add a third paragraph to s. 23 (now s. 24 of the Referendum Act) to the effect that the by-laws of the national committees must "provide for the affiliation to the committee of groups which are favourable to the same option and see to the establishment of the norms, conditions and formalities governing the affiliation and financing of these groups" [].
It should be mentioned at the outset that the appellant is not contesting the principle and operation of affiliation in this Court. Affiliation significantly relaxes the restriction imposed by the impugned provisions on the freedoms of expression and association of groups that wish to support one of the options submitted to a referendum but disagree with the strategy of the national committee representing the option they support. Affiliation makes it possible for groups to conduct campaigns parallel to that of the national committee representing the option they wish to support, that is, they can incur regulated expenses by means of an amount granted by the committee in question out of the referendum fund. Individuals may also associate to form an affiliated group in order to conduct a parallel campaign. Like that of the national committees, the spending of an affiliated group must be monitored by the committee's official agent or by one of his or her deputies or local agents. However, the role of these agents and deputies is confined to ensuring that the limit imposed on regulated expenses -- in the case of an affiliated group, this limit is in fact the amount granted by the national committee -- is complied with; they have no control over the discourse of either the national committees or the affiliated groups [].
Under s. 24 of the Referendum Act, the national committees are required to adopt by-laws providing for the financing of affiliated groups. The Referendum Act does not set out a specific framework within which such by-laws must be adopted but gives the national committees complete freedom in respect of "the establishment of the norms, conditions and formalities governing the affiliation and financing of these groups". However, this discretion must be exercised in accordance with the Canadian Charter. ...
In the case at bar, the national committees do not have an express power to infringe the Canadian Charter in drafting the rules of affiliation. In our view, they do not have such a power by necessary implication either. It is the Referendum Act that expressly restricts the freedoms of expression and association of individuals. The objective of the by-laws on affiliation is instead to limit this infringement of the freedoms of expression and association as much as possible. The discretion conferred on the national committees in respect of affiliation must therefore not be used to restrict the freedoms of expression and association, but rather to extend those freedoms by promoting the broadest possible political expression.
Thus, the principle that must guide the national committees in drafting by-laws on affiliation is the promotion and spreading of the freedom of expression of groups wishing to affiliate. Assuming that requests for affiliation are made in good faith, in other words, that the groups seeking affiliation genuinely wish to promote the option represented by the committee, the committee cannot deny them affiliation on the basis of the content of the message they are seeking to disseminate.
As for the amounts to be granted to each of the affiliated groups, the committee must determine them in a fair and reasonable manner. It should be noted that each national committee has a limited amount to distribute. Each national committee and its affiliated groups cannot incur regulated expenses that exceed the limit imposed on them by the Act, namely the equivalent of $1 per elector (s. 426 Special Version). The first criterion that should be applied in determining the amount to be granted is the representativeness of the affiliated group. It is inherent in the democratic system that the representativeness of a point of view should have an effect on its dissemination. Since contributions are limited, a group, party or candidate with little support will receive that much less money to assert its point of view. Of course, the objective of this criterion is not to determine how many people will ultimately vote for the option based on the arguments put forward by the group; it is not a question of trying to conduct a pre-referendum referendum. However, the support each group has at the time of determination of the amount to be granted is quite clearly a criterion to be taken into consideration. ...
A second criterion to be taken into consideration is fairness. The committee must grant amounts that are sufficient to enable each group to make itself heard, although to varying degrees. It would be quite unfair for a small group to be granted such a small amount that it is in practice impossible for it to assert its point of view in any way whatsoever. That would go against the objective the national committees must pursue in respect of affiliation, namely the promotion and dissemination of the broadest possible range of views. One last criterion that could be taken into consideration in extreme cases is the need to take tactical considerations into account. This criterion could be used to exclude extremist groups advocating an approach that would objectively do real damage to the option and to the proper operation of the referendum process. Such cases will undoubtedly be exceptional, and the national committees will have to be careful not to try to use this criterion to make a general value judgment respecting the discourse its affiliated groups are seeking to deliver.
To ensure the proper operation of the Act, and in particular of the system of affiliation and of the fair and reasonable distribution of the available money between the national committee and the various affiliated groups, the Act provides for the establishment of a Conseil du référendum composed of three judges of the Court of Québec []. Thus, should any group consider itself wronged by a national committee in the affiliation procedure, it could always take its case to the Conseil du référendum. That body's role is, inter alia, to ensure that all the groups are treated fairly, and in accordance with the charters. In his testimony, Professor Aucoin stressed the importance of the Conseil du référendum and its role in the operation of the Act []. Moreover, as Professor Aucoin mentioned, the potential media impact of a decision by the Conseil du référendum concluding that a committee has treated a group trying to affiliate with it unfairly is clearly a further incentive for the national committees... .
The advantage of the affiliation system is that it ensures compliance with the objectives pursued by the legislature in the impugned provisions. Since the affiliated groups receive their money out of the maximum amount of expenses granted to the national committee, the equality of financial resources available to promote the options submitted to the referendum is not infringed by the presence of affiliated groups; each option retains the same spending limit. This system removes the temptation for the proponents of the various options to divide into small groups in order to increase the total amount spent to promote their option in order to circumvent the limit imposed on the national committees and thus improve their option's visibility within the community. Another significant advantage of this system is that it allows the affiliated groups to receive their share of the subsidy paid by the government into the referendum fund pursuant to s. 40 of the Referendum Act. Thus, while their affiliation imposes some restrictions, it also entails the advantage of government financial support for groups that might otherwise lack resources. From this point of view, it is not obvious that the affiliation system should be regarded as restricting political expression. ...
Thus, for groups that wish to support one of the options submitted to a referendum but do not wish to join the national committee because they disagree with its strategy, the affiliation system -- which, it should be noted, the appellant is not contesting -- relaxes the restriction imposed on these groups by the impugned provisions sufficiently for us to conclude that the impairment is minimal. The structure set up by the legislature enables the vast majority of the people or groups favouring one of the options to participate actively in the referendum campaign by joining or affiliating themselves with the national committee overseeing the option. Furthermore, individuals who disagree with the committee's strategy could join an affiliated group that agrees with their position. They could thus participate actively in the referendum campaign through this affiliated group.
Nonetheless, there are still a certain number of individuals and groups who cannot join or affiliate themselves with the committee and who accordingly can express their views only by means of unregulated expenses: on the one hand, individuals who support one of the options but cannot join the national committee or one of its affiliated groups because they disagree with their respective strategies and for whom affiliation is not possible because it is reserved for groups, and on the other hand, individuals or groups wishing to participate in the referendum campaign without directly supporting one of the options (in particular, abstentionists).
While it is true that the impugned provisions do not totally prohibit the freedom of expression of these individuals and groups, which should normally make the infringement easier to justify [], the forms of expression provided for in s. 404 Special Version are so restrictive that they come close to being a total ban. While ss. 404(1) and (3) authorize expression by means of the print, radio or television media, they require that the opinion be circulated or broadcast "without payment, reward or promise of payment or reward". The ability to express a point of view through these media thus depends on a third party, which limits the effectiveness of this exception to regulated expenses considerably. Since not the slightest amount may be spent, it will ultimately be the radio or television broadcaster or the print publisher who will decide whether the opinion will be disseminated. Section 404(2) provides for the possibility of publishing a book during the referendum campaign provided that the publication was planned before the campaign began. This exception is also very limited... . Sections 404(4) and (5) provide that a person may pay, out of his or her own money, any expenses he or she incurs for transportation, meals and lodging while travelling "for referendum purposes", if these expenses are not reimbursed. However, it is not sufficient to permit people to pay their travelling expenses, as they still have to be able to pay to have their point of view heard once they reach their destination. The final relevant exception is found in s. 404(9), which authorizes incurring up to $600 in costs to hold a meeting, including the cost of renting a hall and convening the participants. Without ruling on the reasonableness of the amount in question, it must be recognized that this exception, like the others, is very restrictive, as it is limited to the organization of a meeting.
Thus, as regards the exceptions set out in s. 404 Special Version, groups and individuals who cannot join or affiliate themselves directly with the national committees are allotted no money whatsoever to spend as they see fit in order to make their positions known. It is therefore impossible, for example, for them to pay to have flyers, pamphlets or posters printed that present their points of view. This Court has already pointed out the importance of these forms of communication, which are generally used by the least affluent members of our society []. In our view, this example suffices to illustrate the seriousness of the restriction imposed in s. 404 Special Version....
[W]e are of the view that the limits imposed under s. 404 cannot meet the minimal impairment test in the case of individuals and groups who can neither join the national committees nor participate in the affiliation system. In our view, there are alternative solutions far better than the limits imposed under s. 404 Special Version that are consistent with the legislature's highly landable objective. The Lortie Commission's recommendation on third party expenses is one possible solution.
To guarantee the operation of the system of election spending limits, the Lortie Commission recommended, inter alia, that groups and individuals not connected with a political party or candidate (independents) be prohibited from incurring election expenses exceeding $1000 and from pooling these amounts (Lortie Commission []). This recommendation made it possible for all practical purposes to ensure that the balance in the financial resources of the parties and candidates was respected without radically restricting the freedom of expression of independents. By allowing a certain amount without limits on how it was to be used, the Commission ensured that independents would be able to assert their points of view and that they would have some leeway in choosing forms of expression. Furthermore, by allowing a relatively low amount and prohibiting pooling, the Commission removed the temptation for parties or organizations of candidates to split into small groups in order to multiply and thus increase the limits imposed on their campaigns by the Canada Elections Act. In this way, the Commission ensured that the impact of its infringement of the principle of limiting election spending by parties and candidates would be minimal enough for the system to remain effective. ...
Parliament adopted this recommendation and enacted the following in ss. 259.1 and 259.2 of the Canada Elections Act []... .
In Somerville v. Canada (Attorney General), supra, the Alberta Court of Appeal declared these provisions to be unconstitutional. With respect, we have already mentioned that we cannot accept the Alberta Court of Appeal's point of view because we disagree with its conclusion regarding the legitimacy of the objective of the provisions [].
In our view, an exception to regulated expenses similar to that recommended by the Lortie Commission would be far less intrusive than those currently applicable under s. 404 Special Version. The Act could permit citizens, either individually or in groups, to spend a certain amount on an entirely discretionary basis while prohibiting the pooling of such amounts. To limit the scope of this exception and prevent abuse, the legislature could also be at liberty to exclude from its application certain individuals or groups who already have platforms from which to express their views, such as the national committees, affiliated groups and individuals or groups belonging to the national committees or affiliated groups.
By virtue of this exception, individuals and groups who can neither join nor affiliate themselves with the national committees would be entitled to a minimum amount that they would be able to spend as they saw fit in order to communicate their positions. In our view, this alternative would result in a more acceptable balance between absolute individual freedom of expression and equality of expression between proponents of the various options. It is not up to this Court to decide what amount should be allowed. Should the legislature adopt this alternative, it will have to set the amount. Nevertheless, it might be thought that the amount of $1000 proposed by the Lortie Commission in the Canadian election context is not necessarily appropriate in the context of a Quebec referendum. The appropriate amount will have to be fair while being small enough to be consistent with the objective of the Act.
Although s. 404 Special Version is the only provision that is really problematic, it is difficult to sever it from the rest of the impugned provisions. Section 404 Special Version provides for exceptions to "regulated expenses", which are defined, and the persons entitled to incur them are described, in ss. 402, 403, 406 para. 3, 413, 414, 416 and 417 of the Special Version. Without further exceptions to the regulated expenses, the effect of severance would be a total ban on referendum spending by third parties except through the national committees. The Act would itself be unconstitutional were s. 404 alone to be severed. Since all the impugned provisions form a closely interrelated whole and s. 404 Special Version does not meet the minimal impairment test, all the impugned provisions fall with it, like a house of cards.
(c) Deleterious and salutary effects Having concluded that the system set up by the Referendum Act does not meet the requirements of the minimal impairment test, it is in principle unnecessary to consider the final test, namely proportionality between the deleterious and salutary effects of the system.
A decision cannot be made in the abstract, and until the legislature has altered its system, it will clearly be impossible to determine whether the system's benefits outweigh its deleterious effects on the freedoms of expression and association. However, it is clear from our analysis that protecting the fairness of referendum campaigns is a laudable objective that will necessarily involve certain restrictions on freedom of expression. Freedom of political expression, so dear to our democratic tradition, would lose much value if it could only be exercised in a context in which the economic power of the most affluent members of society constituted the ultimate guidepost of our political choices. Nor would it be much better served by a system that undermined the confidence of citizens in the referendum process.
... The appropriate remedy remains to be determined. The appellant is asking the Court to declare all the impugned provisions unconstitutional and of no force or effect. It is impossible in the case at bar to resort to the techniques of reading in and severance, since they would require us to make choices within the domain of the legislature []. Consequently, having concluded that the provisions as a whole constitute an unjustified infringement of freedom of expression and freedom of association, we declare ss. 402, 403, 404, 406 para. 3, 413, 414, 416 and 417 of the Special Version to be of no force or effect under s. 52 of the Constitution Act, 1982. We are aware of the major impact of this conclusion on the provisions of the Referendum Act and of the Special Version relating to control of referendum spending. ... It will be up to the legislature to make the appropriate amendments. We would have arrived at the same result had the case been resolved on the basis of the Quebec Charter of Human Rights and Freedoms. ... Somerville v. Canada (Attorney General) [1996] A.J. No. 515 (unreported) (C.A.)
Conrad J.A. (Harradence J.A. concurring)
This appeal deals with certain advertising prohibitions and restrictions under the Canada Elections Act, [] as they affect freedom of speech, freedom of association and the right to vote. The challenged sections prohibit any advertising during the period between the date of the issue of the writ calling an election and the 29th day before polling day, as well as the day before and day of the election. In addition, third parties are limited, individually or jointly, from spending more than $1,000 in advertising which directly aims to promote or oppose a particular party or candidate....
Summarized briefly, subsection 213(1) ("the black-out section") is directed at everyone (including parties and candidates) who might be inclined to advertise in relation to an election. It makes it an offence to advertise by broadcasting or publication, directly or indirectly, in promotion of or opposition to a given party or candidate, during the prescribed "black-out" periods. Even to acquiesce in the publication of such advertising is an offence in the case of periodical publications.
Subsections 259.1(1) and 259.2(2), on the other hand, are directed at all individuals other than candidates or political parties. I will refer to such individuals as "third parties". Third parties are prohibited, individually or jointly, from spending more than $1,000 in advertising which directly aims to promote or oppose a particular party or candidate. I will refer to this as "direct advertising". There is no similar limitation imposed with respect to advertising on issues ("indirect advertising")....
In 1984, the Court of Queen's Bench of Alberta declared the predecessor section to s. 259(1) invalid as being inconsistent with s. 2(b) of the Charter: see National Citizens' Coalition Inc. and Brown v. The Attorney General of Canada, [1984] 5 W.W.R. 436. No appeal was taken from that decision, and no attempts were made to enforce the applicable section in any other part of the country during the 1984 or 1988 elections. Subsequently, a Royal Commission chaired by Pierre Lortie was established to hold hearings across the country on electoral reform. A comprehensive report was issued by the Lortie Commission and eventually Parliament passed the current Act accepting several of the recommendations of that Commission....
The Attorney General takes the position that the third party spending limits provided in ss. 259.1(1) and 259.2(2) are required to preserve the integrity of the existing scheme of financing controls provided in the Elections Act. Given the control on party and candidate spending, it would be unfair to permit third parties to spend in an unlimited fashion to preserve the balance created by the Act. While argued less strenuously, a further suggested objective of the restrictions is the maintenance of public confidence through elimination of fear that candidates supported by direct individual advertising would be accountable to their third party supporters.
With respect to the initial black-out period under s. 213(1)(a) (from the issuance of the writ to 29 days before the election) the Attorney General relies upon the following two objectives for justification:
The final black-out period provided by s. 213(1)(b) - the election day and the day before election day, is argued to be a required limitation designed to achieve the following:
In general terms the respondent [Somerville] says that the trial judge made no error in concluding that there was no pressing and substantial need for the challenged legislation. Further, he says that there is no rational connection between the impugned law and the purposes of the financing scheme. Freedom to advertise does not impede fairness and openness. Rather, he says that ss. 259.1(1) and 259.2(2) severely limit the freedom of expression of all but political parties and candidates (who have very liberal expenditure limits) thereby creating a totally unfair balance. There is no guarantee or recognition within the Constitution of a preferential position for parties and candidates. Rather, the Charter specifically protects freedoms for individuals, while the impugned law gives a preference to parties and candidates.
The respondent argues that, taken at its highest, the aim of this law is the support of the balance created by the restrictions placed under the Act on candidate spending; restrictions which he argues are, in themselves, unconstitutional. He argues that there is no pressing and substantial need for candidate spending limits or third party limits; nor is there a need to maintain the advantage afforded to the parties by this scheme. In any event, there is no proportionality between the candidates' spending restrictions and the legislative limitations on third party spending.
Similarly, with respect to s. 213(1), it is the respondent's position that the objective of the legislation is not of sufficient importance to override these important constitutional guarantees. Nothing in the evidence demonstrates that prohibiting advertising for roughly 20 days every election cycle reduces the cost of an election. Moreover, considering that advertising is allowed up to the date of the issuance of the writ, the insignificance of the black-out on costs is obvious.
The respondent says the black-out at the end of the campaign does not resolve the issue of the ability to respond to last-minute allegations, as argued by the appellant. Rather, the prohibition creates its own inability to respond. Others are able to make campaign charges up to the last minute of the day before the black-out, and the inability to respond is caused totally by the legislation. In addition, the prohibition can operate to protect the politicians from responding in relation to critical issues that surface in the latter days of an election campaign. Lastly, he says that there is no evidentiary basis to support the allegation that freedom to advertise means people are inundated with partisan information on polling day and the day preceding election day.
Prima facie breach of Charter rights
(a) Breach of Freedom of Speech - s. 2(b) of the Charter The legislation on its face obviously curtails expression, and constitutes a prima facie breach of s. 2(b).
(b) Breach of Freedom of Association - s. 2(d) of the Charter
(i) Subsections 259.1(1) and 259.2(2) ...Subsection 259.2(2) prohibits individuals from combining their resources to express their views via direct advertising regarding an election campaign. In Reference Re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313, Le Dain J. wrote at p. 391 that: "Freedom of association is particularly important for the exercise of other fundamental freedoms, such as freedom of expression and freedom of conscience and religion." This point was acknowledged again in Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367 at pp. 398-9, by Sopinka J. Applying that concept to this case, the ability to associate and combine funds to inform and influence others in an election is inextricably tied to the exercise of the freedoms such as freedom of expression and the right to be informed in an election.
An important aspect of association is the ability to combine resources to pursue common goals, influence others, exchange ideas and effect change. If the right of a group to speak is limited, then the good that comes from that association is thwarted. Association for the purpose of participation and communication during an election must surely stand as a primary reason for constitutionally entrenching the right to associate.
Here there is an intimate link between the restriction on individuals advertising in s. 259.1(1), and the restriction on combining with others to advertise contained in s. 259.2(2). The effect of the latter is to make the overall restriction on individual advertising much more severe, thereby significantly impacting directly on the right of free expression. The restriction on speech impacts directly and significantly on the right to associate. If third parties wish to associate to pool resources for the purpose of advertising in favour of, or in opposition to, a particular candidate or party, they are jointly limited to an expenditure of $1,000. If they wish to spend more, their only option is to do so by contributing to an existing party. In effect, the spending restrictions in both s. 259.1(1) and s. 259.2(2) force those who wish to participate by advertising in any meaningful way to do so through association with the political parties and candidates. As such, the sections interfere with an individual's freedom of association to accomplish not only very legitimate, but essential, objectives in a democratic country. It is true that this legislation does not restrict indirect advertising, and thus third parties are allowed to advertise regarding issues, as opposed to advertising for or against a party or candidate. However, the inability of associations and individuals to identify their own goodwill with a candidate or party muzzles during an election campaign what might otherwise be a strong, independent voice of people with shared goals. By interfering with this ability of individuals, through association of their choice, to independently lend strength to a candidate or party, this legislation is a limitation of legitimate activities of association, and by extension one's right to associate. This prohibition is an interference with an integral function of association -- namely that of sharing resources, knowledge and skills with a view to achieving common goals.
In my view, the trial judge was correct in finding that s. 259.2(2) violates [s. 2(d)]....
(ii) Subsection 213(1) The impact of s. 213 on freedom of association is less clear. Section 213 is a prohibition imposed on all persons and groups of persons, including parties and candidates. The prohibition does not result in forced participation through the party system. Nevertheless, one must evaluate the effect of this section on an association's ability to accomplish its legitimate goals. Election day, and the latter days of an election campaign, are crucial points of time for communicating to the electorate a group endorsement or rejection of candidates and parties. The groups are in a better position to evaluate candidates at the end of the campaign. Moreover, the closer election day is, the more voters seek for this type of information. For instance, a group of senior citizens may wish to identify to the electorate those candidates perceived as being sympathetic to the elderly. Communication of that information would be most effective very close to polling day, as voters make their final selection. This communication is consistent with a fair electoral process in a free and democratic country. By prohibiting advertising at this critical time, s. 213 interferes with an association's right to exercise its free speech, inform voters, and promote its legitimate interests by endorsing a party or candidate at a critical time. In my view, the restriction contained in s. 213 is a restriction on the freedom of association as well as a restriction on freedom of expression.
(c) Breach of the Right to Vote - s. 3 of the Charter
...The Supreme Court of Canada has dealt with s. 3 of the Charter in only three particular contexts: electoral boundaries, the disqualification of inmates from voting, and voting in referenda.
The significance of these ... cases strikes me as being twofold. First, they indicate that although the Supreme Court of Canada has not directly dealt with the issue of the relationship between the right to vote and the right to communicate and receive information relevant to voting, it is well accepted in Canada that the s. 3 right to vote does include a "right to sufficient information" component. Secondly, in light of the fact that none of the cases have found (and upheld on appeal) a violation of s. 3 on the basis of insufficient information, it remains unclear exactly how broad this aspect of the right is.... (i) Subsection 213(1) (The Black-out Provision) By s. 213(1), the Act prevents anyone, including candidates and party agents, from advertising for the purpose of promoting or opposing a party or candidate, during the first and last days of an election campaign. This section precludes election advertising within a certain time frame. It does not directly proscribe what may be said, but focuses on when election advertising may be broadcast or published.....
Simply limiting freedom of expression and association ... does not necessarily amount to restricting the right to vote. Thus, although the legislation may unjustifiably restrict the flow of election-related information on an expression and association standpoint, from a voter's perspective the relevant information may be available from other sources or at different, sufficiently long periods of time. If so, and if one can say that the information is available, then such restrictions do not unnecessarily undermine and diminish the right to vote....
Turning to the challenged sections, election advertising is prohibited for approximately the first 18 of 47 days of a federal election campaign. This is followed by a period of 28 days when advertising is permitted, up until the day prior to polling day, after which it is again prohibited. I cannot conclude that this 18-day limitation prohibits the communication of information needed by citizens to make an informed vote. Nor does the black-out period at the very end of the campaign necessarily prevent the receipt of sufficient information, although I am more troubled by the latter. That prohibition may deprive the electorate of last minute critical information.... However, if information is critical and new, it could still be communicated through the news media, and so I am hard pressed to say that these sections prevent sufficient information reaching the voter. Moreover, s. 213(1) treats everyone equally, and simply prohibits advertising. It would not prohibit the publication of a newsworthy item by the press. In summary, I am not satisfied that s. 213(1) does infringe upon the "right to vote" in s. 3....
(ii) Subsections 259.1(1) and 259.2(2) As for ss. 259.1(1) and 259.2(2), these provisions severely restrict both how much and what may be broadcast or published, specifically by third parties. They apply to the entire election campaign period, and prohibit, beyond an insignificant amount, third party direct advertising in support of or opposition to particular candidates or parties.
Here I am of the view that the restrictions have the effect of obstructing citizens' access to information to such an extent that the right to cast an "informed vote" is breached. Open democracy is enshrined in the s. 3 Charter right to vote. The alternative to allowing third party advertising is that a so-called "informed vote" amounts to little more than a choice from amongst various candidates, where citizens are only as "informed" (or not) as the news media, the parties and the candidates themselves want the citizens to be. Insofar as these impugned provisions severely limit the ability of third parties to participate in the very communicative process which allows a citizen's vote to be "informed", they undermine the right of citizens to vote. Thus, this is the antithesis of an informed vote in a free and democratic country. It is a limitation that diminishes and undermines the right to vote. Section 1 justification ...Because of the close link between the freedoms of expression and association during an election, as well as the right to vote, I will discuss the possible justification of all violations together....
(a) Are Subsections 259.1(1) and 259.2(2) Justified?
(i) Are the Objectives of Sufficient Importance to Justify Overriding Charter Rights? The Elections Act is generally aimed at ensuring fair elections. However, it is the objectives of the challenged sections that must be identified and assessed. In this case, the objectives must be determined keeping in mind the extensive nature of the prohibition. The legislation here is, in its effect, a ban on third-party national advertising or advertising that has any hope of reaching a broad audience. That is not disputed; nor could it be. Thus, I approach the identification of the aim of the impugned sections by considering not only the suggested or possible objectives, but also the reality of those objectives in light of the expansive restrictions.
The Attorney General submits that the spending limits in subsections 259.1(1) and 259.2(2) serve several important objectives. First, the Attorney General argues that the restriction is necessary to ensure public confidence in the system. If third parties can endorse certain candidates and parties, there is a danger that those contributors will be the beneficiaries of political patronage, or at least perceived to be. But it is unreasonable to attribute that objective to these subsections when one views the legislation as a whole. If the public is going to lose faith in the system due to patronage fears, those fears will be greatest in respect of direct contributions to candidates and parties. Yet the legislation deals with that problem by imposing only reporting requirements. If the fears relating to direct contributions are adequately dealt with by reporting conditions, it is difficult to conclude that the real objective of this legislation is fear of patronage. Even if it were one objective, it cannot be one which is of sufficient importance to override constitutional guarantees in this manner.
The Attorney General argues that parties and candidates could circumvent their spending restrictions by using third parties to advertise on their behalf. However, that is already prohibited by the Act and cannot rationally be seen to be the objective. By virtue of ss. 36 and 217 of the Elections Act, a third party cannot directly pay for advertising in support of a given party or candidate, for such advertising would be "on behalf of" the party or candidate. Where the advertising could be said to be "on behalf of" the party or candidate, the third party has to provide the money to the relevant Official Agent to pay the expense, and by virtue of ss. 39 and 208 that expense then counts against the overall spending limit of the party or candidate. In other words, "deals" which in effect have third parties paying for advertising on behalf of parties or candidates are already prohibited. Third party advertising must be independent. If not, it gets restricted by the existing rules. Thus these provisions are not required for that purpose and there is no important objective in that regard.
Finally, I turn to the Attorney General's primary argument. The challenged legislation is proffered to ensure that the regulation of spending during elections by political parties and candidates is not rendered ineffective by unparalleled third party spending. That justification in turn requires a finding of two important objectives: first, a need to restrict parties and candidates in their advertising spending; and, secondly, a need to restrict third party spending to support those party and candidate restrictions. The importance of the objective must be approached keeping in mind the significance of the rights infringed. This case deals with the infringement of the most fundamental democratic rights -- freedom of expression and association during an election, and the right to vote....
The mere fact that other governments have chosen to pass similar legislation is not conclusive of its need; rather it is some evidence to consider. However, as the trial judge noted, the majority of provinces in Canada do not have third party restrictions and three provinces do not have any spending restrictions. That is also cogent evidence. The expert testifying on behalf of the Attorney General was totally unaware that the Province of Alberta had no spending restrictions. It follows that no consideration was given by the expert to any impact this had on the fairness of elections in Alberta, a point well taken by the trial judge. In my view, the evidence does not support a finding that jurisdictions without spending restrictions have unfair elections and the totality of the evidence of other jurisdictions is not of great significance. The fact that other jurisdictions have been functioning without such legislation, and without allegations or proof of unfairness, suggests no pressing need.
The trial judge concluded further that there was no quantitative evidence proving that third party spending impacted on elections....
The need for spending controls for parties, candidates and third parties is not easy to measure by quantitative analysis. Is there a danger that someone could "buy" an election? What does it mean to buy an election? Is it a realistic danger? Is it wrong for either an established or emerging party to spend the funds they are capable of raising? Could third party advertising for particular candidates buy elections? Could it even have an effect on an election? Is it unfair if third party advertising can affect an election? This entire area of control is one fraught with difficulty. It is legislation which ironically purports to protect the democratic process, by means of infringing the very rights which are fundamental to a democracy....
In any event, I have great difficulty accepting that an opposite finding would justify suppression of the expression. Quite the contrary. An important justification for the Charter guarantees of free expression and association, and an informed vote, is the need in a democracy for citizens to participate in and affect an election. It follows that there can be no pressing and substantial need to suppress that input merely because it might have an impact.
That leads to what appears to be the real objective or aim of Parliament in passing ss. 259.1(1) and 259.2(2). The Attorney General argues that unrestricted third party advertising could distort the political process. He says that the spending restrictions on parties and candidates are required to ensure that candidates or parties with superior financial resources cannot monopolize the media and have an undue influence on determining which issues are given priority or how they are portrayed. The balance created by the Act among the parties, and with others, is not maintained if third parties are allowed to advertise. This argument rests on the assumption that political parties play the paramount role in Canadian Parliamentary democracy, and that while third parties or interest groups also have a role to play, it is a lesser one. In short, I conclude that third party spending limits are primarily aimed at preserving an electoral system which gives a privileged voice to political parties and official candidates within those parties....
The appellant assumes that parties and candidates have entitlement to the preferential scheme of advertising conferred by the Act. Third party advertising could result in one party or candidate receiving the advantage of additional expenditures spent in its support and thereby thwart the legislative scheme. The end result, says the appellant, is unfair. Although political parties may be "primary political institutions" in Canada, that surely cannot justify all but excluding citizens from participating in meaningful expression during election campaigns....
The perplexing questions raised by this appeal and the balancing of conflicting interests must be analyzed in the context of the values underlying a democratic election. What are those values? What influences votes? Who do voters look to for support, advice and information? How are our opinions formed? How are the pressing issues brought forward and candidates evaluated? Is there a need for the political parties to have control over the messages that reach the electorate?...
The press is also one of the primary sources of information during an election. It regularly selects candidates to follow, write editorials, and reports on the issues during an election. Freedom of the press is accepted as fundamental, and the Elections Act makes no effort to curtail this expression, notwithstanding the imbalance it may create in candidate coverage. In contrast, it seeks to restrict any meaningful third-party input. Groups with political, economic, academic, social and religious values ... are intensely interested in playing a role in an election. The citizenry looks to its community, political and religious leaders, and interest groups for input. Voters want the benefit of the independent advice and information on candidates and parties from others with similar ideologies and without the self interest involved in candidate and party advertising.
Frequently political parties want to avoid certain issues perceived to be "non-winners". Yet, it is their position on those issues that is critical to the voter. If a group of citizens wishes to identify certain issues with candidates or parties, that message is crucial to both the sender and the receiver. Certain voters are impressed by the viewpoint of such groups as the National Citizens Coalition. The view of such a group on the candidates is elucidative. To interfere with such an identification of candidates, by such a group, is to thwart the free and democratic process. A manipulated communication system favouring the political parties is, in my view, one of the evils from which the constitutional guarantee provides protection.
Spending limits upon candidates can be said to be aimed at the fairness or level playing field between candidates and parties vying for election. To aim for equality or equity between the contestants may be fair. It has also been held to be fair to ensure that parties with a chance of forming the next government be heard. It may also be fair to ensure that costs do not escalate to such a point that candidates spend all their time raising funds instead of communicating. But that is not the objective here. This legislation bans input. This is a case where the objective of the legislation is not trying to balance expenditures of outside groups, the press and parties. Rather, one is led to conclude that the very aim or purpose of this legislation is to ensure that third parties cannot be heard in any effective way and that political parties are entitled to preferential protection. Its objective strikes at the core of these fundamental rights and freedoms, and is arguably legislation which has as its very purpose the restriction of these rights and freedom, which can never be justified.
(ii) Proportionality Between Objectives and Means It becomes very difficult to proceed through the remaining stages of the s. 1 test, once it is apparent that the objectives underlying the impugned provisions are not sufficiently important to justify overriding ss. 2(b), 2(d) and 3 of the Charter. Nevertheless, assuming ... the existence of a pressing and substantial concern, the legislation still does not pass muster in terms of proportionality between the means employed and the desired ends.
Assuming that there is a valid objective in controlling expenses of parties and candidates, the actual provisions in question do not achieve those objectives in a way that is fair, not-arbitrary, and rational. There is no rational connection between legislation that limits third party expenditures to $1,000 while candidates can spend up to about $55,000 and parties can spend millions. This is so disproportionate as to be not rationally connected. Nor is it minimal impairment; it is arbitrary and unfair.
The goal of minimizing corruption and the perception of corruption in elections, while admirable, seems only to be very weakly advanced by restricting direct third party advertising during election campaigns. As indicated above, its effectiveness in achieving that end must be doubted, considering that direct contributions to parties and candidates are not limited, but only subject to disclosure rules.
In the present case, there is no balancing between competing social groups involved. Rather, the legislation focuses on creating an electoral regime in which parties and candidates are given a privileged and insulated position, while the independent voices of others on those candidates and parties are all but silenced.
Without a doubt, less intrusive means of fostering the purported objectives of this legislation are available. For example, the respondent points out that possible alternatives to third party spending limits include limiting either (or both) the source and quantity of direct contributions to political parties.... Further, stringent disclosure requirements could be imposed upon third parties who advertise in relation to election campaigns; some such requirements already exist in s. 259.2(1) of the Elections Act. Similarly, the Attorney General has not established that these spending limits minimally impair the constitutionally protected rights and freedoms, in order to fulfil the goal of preventing the undue escalation of election costs. The Attorney General suggests that by confining the $1,000 limit only to direct advertising, a reasonable limit was achieved. However, it cannot rebut the fact that this financial limit amounts, in effect, to a total ban on national advertising. It is for the Government to justify a Charter breach. While it may be difficult to formulate a spending requirement which amounts only to a reasonable limit ..., it is very clear that this limit - an effective muzzle - is not it. The $1,000 limit in ss. 259.1(1) and 259.2(2) cannot be viewed as the minimal impairment of freedom of expression and association, or of the right to vote, required to meet any of the purported objectives.
(b) Is Subsection 213(1) Justified?
(i) Are the Objectives of Sufficient Importance to Justify Overriding Charter Rights?
Initial Black-Out Period The appellant offers two underlying concerns for the advertising ban.... One is the fear of escalating campaign costs. By prohibiting advertising during the initial stages of an election campaign, there will be less time to spend and so less spending. The second relates to the limitation of any advantage the incumbent party might have as a result of knowing the date of the election and allowing time for parties to plan their media campaigns.
Are these concerns sufficiently "pressing and substantial" so as to warrant overriding the freedom of expression and association? Again, while strict proof is not required in situations where the perceived mischief is not amenable to such proof, there must be a solid and satisfactory basis for Parliament to have a "reasoned apprehension of harm" []. Arguably, all that the appellant has raised in support of these objectives is speculation of harm. In the absence of these impugned black-out provisions, political parties, candidates and third parties might increase the amount they spend on advertising. But they might just as likely spread the same amount of advertising they would otherwise purchase over a longer period of time. Common sense lends support to the respondent's argument that the amount of money spent on advertising more likely depends on funds than time available. Moreover, advertising is permitted up to the date of issuance of the writ. There seems to be no logical reason why it should be restricted during the period of time that citizens are most apt to be interested in party platforms.
Having disposed of the speculative argument that the initial black-out would restrict excessive advertising expense, there is no legal or rational reason to keep the public in the dark on party platforms. Once the writ is issued information vital to an informed vote should immediately be disseminated.
With respect to the suggestion that it would eliminate any advantage the party in power might have of knowing the date of the election, the fact that advertising is allowed right up to the date of the election negates that as a valid justification for the limitation. Obviously the party in power would be able to advertise intensely up to the black-out period and the other parties would not have the right to rebut for a period of 18 days. In my view, this section is as apt to have exactly the opposite effect -- namely, the provision of an advantage to the party in power.
Assessing the objectives against the rights infringed (freedom of expression and association only), one must recall that the opportunity for an individual's participation is at its highest, and most valuable, during an election campaign. In the early days following the writ, parties frequently do not have candidates in each constituency, and nominations occur during that period of time. It is true the Act contemplates the advertisement of nomination meetings during that time. It is less clear that advertising for political candidates or parties (including new and emerging parties) is allowed. Obviously new and emerging parties will need all the time they can get to communicate their ideas, and individuals supporting others to participate in emerging parties will want to be heard during these critical times. In my view, neither the objective of controlling expenses for 18 days, nor the objective of limiting the incumbent party's advantage has been shown to be of sufficient importance to meet a pressing need that justifies an infringement of these important rights.
Final Black-out Period The Attorney General justifies the final black-out provision in s. 213(1)(b) by arguing that candidates are likely to become targets of unfair "eleventh hour" tactics to which they cannot reply. That argument applies equally to advertising two days before the election, as it does to election day and one day before the election. The Attorney General provides no evidence to suggest that candidates have been, or are more likely to become, targets of unfair practice such that a total advertising ban is required the day before and the day of polling. Moreover, if unfair advertising occurs on the second-last day of an election, a candidate would be deprived of the right to reply to such unfair practices because of the legislation, and not simply because the natural time had expired.
The second justification put forward by the Attorney General is that this legislation provides a quiet time for reflection by voters, where they will be free to consider carefully their electoral choices without the inundation of partisan information. It must be remembered that the legislation is a total ban. It is not aimed at protecting the polling booth or election place only, and its objective cannot therefore be simply maintaining law and order at or around election polls. It prohibits the communication of the kind of information to which the citizenry of this country is entitled.
Assessing the importance of the aim for a black-out period at the end of an election campaign in relation to the right infringed, requires a consideration of the value of advertising during those days. This legislation prohibits advertising by special interest groups for their preferred parties and preferred slates of candidates. Interest groups frequently turn the pressing and popular issues of the day into election issues. They evaluate the position of candidates and parties on the issues of interest. Thus, uninformed voters can look to, and rely upon, associations with whom they share a common bond, goal or philosophy. Information with respect to the position of candidates and parties on issues becomes most critical approaching election day. It is not a question of voters being swayed improperly on the eve of polling day by an effective advertisement; rather it is a question of voters finding the information about candidates and parties identified with their own personal preference on issues. Not only is this not inherently wrong, it is desirable and fundamental to democracy.
In conclusion, when balanced against the deprivation of information resulting from this ban, there is no offsetting, pressing and substantial need of sufficient importance to justify the infringement.
(ii) Proportionality Between Objectives and Means [T]he impugned black-out provisions are at least rationally connected to some of the objectives discussed earlier, but the link is rather tenuous. For this stage of the s. 1 analysis, it can be assumed that the more time parties, candidates, and others have between the calling of an election and the polling date, the more they will spend on advertising assuming that they have access to funds. So too, the black-out on the final days of the election could increase the likelihood that voters could quietly reflect on their voting options. Finally, it goes without saying, that if election advertisements are banned the day before and the day of voting, no "unfair attacks" can be made via advertising during that time. However, a candidate might just as likely be "unfairly attacked" immediately before such a black-out period took effect. Or, others could still utilize the news media to broadcast or print such attacks. In such a case, the black-out period would actually prevent the candidate from being able to advertise a response to the unfair attack. The rationality of the connection between means and this last mentioned end, therefore, must be doubted.
Admittedly, it is difficult if not impossible to determine whether the advertising black-outs at the start and end of election campaigns constitute the "minimal impairment" of the freedom of expression necessary to achieve the intended aims. This question essentially merges with that asked in the final aspect of the s. 1 test - are the means proportional to the aim?
Even assuming that the stated objectives of this section are pressing and substantial concerns, this legislation prohibits election advertising at times when it may be critical to parties, candidates or even third parties to get a message to the public. The very substantial effect on freedom of expression and association is simply out of proportion to the need for the restriction. Thus, s. 213(1) also fails to meet the proportionality requirement.
In summary, I am of the view subsection 213(1) does not meet either arm of the Oakes test and cannot be saved by virtue of section 1... .
Conclusion I find that ss. 259.1(1) and 259.2(2) infringe all of ss. 2(b), 2(d) and 3 of the Charter. Subsection 213(1) violates ss. 2(b) and 2(d) of the Charter.
... I am not satisfied that any of these provisions can be [] justified. None of the subsections can be said to be "demonstrably justified in a free and democratic society," given that their alleged objectives are not of such clear and pressing importance as to demand what is in effect a ban on direct national third party advertising. Even assuming that some of the objectives of the impugned legislation are of substantial importance, the legislation impairs far too severely the right to vote and the freedoms of expression and association to be justified as a "reasonable" limit on these core democratic right.
Kerans J.A.
I agree with Conrad, J. A. that the sweep of the legislation under review is egregiously overbroad and thus fails the proportionality test....
These observations are sufficient to dispose of this appeal. That said, I hesitate to concur with all the observations by Conrad, J.A. about the sufficiency of all the governmental objectives. While the efforts at proof of need offered at this trial were weak and dubious, I think there remains a serious issue for investigation about the possible distortion of the modern electoral process by money. Serious inquiry should focus not on how some citizens choose to do their electioneering outside the partisan political process, but rather on the validity of the suggestion that new forms of advertising today are at once overwhelmingly influential and extremely expensive. If both those suggestions are or may in the future be true, elections may be debates only about the merits of those ideas that are supported by those with access to huge sums of money. I find that possibility troubling for the future of our society and our democracy, if only because I am not aware of any natural association between wealth and wisdom.
Note
The federal government did not seek leave to appeal. Reimbursement of Campaign Expenditures
Re MacKay et al. and Government of Manitoba (1985), 24 D.L.R. (4th) 587 (Man. C.A.)
Twaddle J.A. (Philip J.A. concurring)
This is an appeal from the dismissal ... of an application for a declaration that ss. 71(2) and (3), 72(1), (2) and (3), 73(1), 75 and 76 of the Elections Finances Act [] are ultra vires of the legislative competence of the Legislature of Manitoba and are null and void as being inconsistent with the provisions of s.2 of the [Charter]... .
The impugned provisions of the Elections Finances Act provide for reimbursement, out of the Consolidated Fund, of a portion of expenses incurred by certain candidates for membership in the Legislative Assembly and by registered political parties. It is unnecessary for the purposes of this appeal to review specifically the conditions which a candidate or party must meet to qualify for a partial reimbursement. Suffice to say that the financial assistance extends to candidates and to parties who obtain individually or in the aggregate, as the case may be, 10% of the votes cast in the electoral division in question or the province. In the result the scheme of the Act envisages financial support to candidates and parties espousing policies enjoying considerably less than majority support... .
The impugned provisions ... in providing for state reimbursement of some election expenses of a minority group, do not impede the freedom of the applicants, or anyone else, to think what thoughts they will as to the good or evil of the policies the subsidized minority espouses; nor do they restrict the applicants form expressing their own views and incurring whatever expenditure they think appropriate for the purpose. In this latter regard this case can be distinguished from National Citizen=s Coalition Inc. v. A.-G. Can. [], where a prohibition against incurring election expenses imposed on persons who were not candidates was held to be an infringement of the freedom of expression guaranteed by s.2(b)... .
The Constitution of Canada does not stop at freedom of speech: it expressly guarantees freedom of conscience and religion. If the applicants are to find any constitutional support for their opposition to the impugned provision of the Act, it must be found in the guarantee of freedom of conscience. The impugned provisions, it is argued, are constitutionally objectionable on two grounds:
(i) they require citizens A...to make compulsory contributions...@;
(ii) they involve support of political parties which may A...espouse Communism, Fascism, or other forms of totalitarianism which are inimicable [sic] to citizens...@.
Citizens are not, however, required to make contributions. The Act obligates the government to reimburse certain candidates and political parties out of the Consolidated Fund a portion of their expenses. The Consolidated Fund receives revenue from many sources and out of it many expenditures for different public purposes are made. It would be impossible and inappropriate to say which item of expenditure was supported by which item of revenue. The financial support given to a political candidate or his party cannot be attributed to any particular tax or to a payment by any particular individual or group. No citizen, by payment of tax or otherwise, is required to contribute to or support a political cause. The citizen pays a tax: the State uses it not as the citizen=s money, but as part of a general public fund. As the Supreme Court of the United States pointed out in Buckley v. Valeo, supra, [] A...every appropriation made by Congress uses public money in a manner to which some taxpayers object@. The notion of a taxpayer Apaying for@ government programmes is not strictly in accord with the fact that, whilst the taxpayer pays some of the money that enables the government to embark on programmes, the government alone is responsible for the programmes on which the money is spent.
Monetary support by the State for the expression of minority views, however distasteful to the majority or to another minority group, cannot offend the conscience of those opposed to the viewpoint. No one is compelled to agree with the minority view nor forbidden to espouse or express a contrary one. To borrow the words of Dickson C.J.C. in R. v. Big M Drug Mart, ANo one is... forced [by the impugned sections of the Elections Finance Act] to act in a way contrary to his beliefs or his conscience.
The Constitution does not guarantee that the State will not act inimically to a citizen=s standards of proper conduct: it merely guarantees that a citizen will not be required to do, or refrain from doing, something contrary to those standards (subject always, of course, to the reasonable limitations recognized by s.1 of the Charter). The support given by the government to political causes hostile to the general, or a minority, viewpoint cannot induce in anyone a pang of conscience for the moral quality of their own conduct or lack of it... .
Huband, J.A. (dissenting)
... The simple issue raised in this case is whether there is interference with freedom of conscience, and of thought, belief and opinion, when the State provides funding from general revenues to assist certain parties to attain elective office - parties who espouse views which are inimical to the opinions of the complaining citizen.
... [P]utting the applicants arguments in start terms, can a taxpayer be required to contribute to pay part of the election expenses of a neo-Nazi or a Maoist - it being conceivable that such a person might garner more than 10% of the votes cast in an election? Indeed, why should the taxpayer be required to pay part of the election expenses of a Liberal or a Conservative candidate with whose views there may be strenuous disagreement on matters of conscience, thought, belief and opinion? The legislation is weighed in favour of established parties and well-known candidates. They can take the risk of spending moneys, confident in the expectation of gaining sufficient votes to qualify for reimbursement. The candidates and supporters of a fringe of fledgling party, less likely to attain 10% of the ballots, must support their victorious opponents by their tax dollars.
The applicants argue that it is enough, under our democratic system, that they suffer the risk that a government will be elected which will proceed with what the applicants conceive to be a repressive or immoral legislative programme which the applicants are required to subsidize by their tax dollars. But it contravenes s.2 of the Charter to require the applicants to contribute to the cost of the propaganda of that government in seeking election.
I agree with the applicants= position. In my view there is no answer consistent with s.2... other than that the State cannot become involved in the financing of political propaganda.
No doubt the impugned provisions of the Election Finances Act were enacted, along with its other sections, with every good purpose in mind. The learned trial judge was of the view that the contested sections were desirable in order to permit minority opinions to be financed and heard during elections, though my own view is that the reimbursement provision work to the disadvantage of small minority groups. But whether the object of the legislation is or is not commendable, I conclude that the impugned sections collide with s.2... .
Nor are those provisions saved by s.1... . On this issue, counsel for the Attorney-General submitted for our consideration a series of articles on the public financing of election expenses, including the Barbeau Report of 1966 which led to legislation by the Parliament of Canada including provisions for the subsidizing of candidates who achieve a certain percentage of the vote. No doubt there are various schemes utilized in different democratic states, as is indicated in the literature before us. But there are also continuing disputes as to whether such schemes are consonant with democratic principles, and whether it is a proper function of the State to use tax dollars to support the propaganda of certain political parties or candidates. It can hardly be said that the particular scheme embodied in the Manitoba legislation is "a reasonable limitation" once it is found to be in conflict with the fundamental freedoms declared in s.2... . In my view, it is simply not possible to aver that such legislation is "demonstrably justified in a free and democratic society"... .
Notes and questions
1. An appeal to the Supreme Court of Canada was dismissed on the basis that an adequate factual base had not been established. See MacKay v. Manitoba [1989] 2 S.C.R. 357. However, in an obiter comment Cory J. did give some indication of his views:
2. In Barrette et al v. A.G. Canada, (1994), 113 D.L.R. (4th), 623 (Que. C.A.), a challenge was brought to sections 241 and 242 of the Canada Elections Act which required that a candidate for election receive at least fifteen percent of the votes cast at a federal election in order to have a right to be reimbursed to the extent of 50% of his election expenses. The applicant, a candidate for the NDP in the 1988 federal election who received only 12% of the vote in his riding, argued that the 15% limit violated his right under sections 3 and 2(b) of the Charter. At trial, the Court held that the 15% limitation constituted an inhibition to public debate on the part of some candidates and accordingly violated s.2(b). It was further held that the violation was not justifiable under s.1. On appeal, however, the Quebec Court of Appeal held that neither s. 3 nor s. 2(b) were violated. McCarthy, J.A., writing for the majority made the following observations (at p. 626-7):
McCarthy J.A. went on to hold that the impugned provisions did not violate s. 15, as they did not constitute discrimination on the basis of an Aenumerated or analogous ground.@
Another case which raises similar issues is Reform Party of Canada v. Canada (A.G.), (1995), 123 D.L.R. (4th) 366 (Alb. C.A.). That case involved a Charter challenge of certain provisions of the Canada Elections Act, which: mandated the provision of free air time to political parties (s. 307), but only if they had captured a certain percentage of votes in the previous election (s. 310(1)); prohibited the broadcasting of campaign advertisements from outside the country (s. 303); and limited the amount of additional air time which Canadian broadcasters could sell to political parties (ss. 319 and 320). The court held that ss. 307 and 310(1) did not infringe freedom of expression, as they did not prevent smaller parties from expressing their views and were, in any case, subject to a broad discretion. Furthermore, it held that even if the provisions did breach s. 2(b) of the Charter, they were justified under section 1, as broadcast time is limited and must be used primarily to inform voters of major issues in an election and the positions being taken by political parties which stand a realistic chance of forming a government. The court also held that those sections did not infringe s. 15 of the Charter and that, in any case, they did not discriminate on the basis of an enumerated or analogous ground. Section 303 was also held to infringe freedom of expression, but that infringement was also found to be justified, as it was necessary to ensure that political broadcasting remain in Canada where it is subject to Canadian laws and to the scrutiny and control of Canadian election officials. Sections 319 and 320 were held to infringe section 2(b) as well, and the court found that this infringement could not be saved under section 1. McFadyen, J.A., writing for the majority, stated (at p. 394):
C. PUBLIC SERVANTS AND PARTISAN POLITICS
Osborne v. Canada [1991] 2 S.C.R. 69
Sopinka J. (Cory and McLachlin JJ., concurring)
These appeals concern the constitutionality of s.33 of the Public Service Employment Act [] which prohibits public servants from engaging in work for or against a political party or candidate. ...
The respondents ... are all public servants within the meaning of the Act. They wished to work after working hours on behalf of the fifth respondent, Cassidy, who was, at the time the action was brought, a candidate for election to Parliament and, at the time of trial, a Member of Parliament.
Barnhart and Camponi are both employed by the Department of Indian Affairs and Northern Development. Barnhart claims that he does not meet the public in his job which involves monitoring the environment in the Indian reserves. Camponi, whose job entails research in the archives of the Department, maintains that she is particularly concerned with the place of women in Canadian society and would like to communicate her opinion as to which political party has the best policy on women's issues to her friends and neighbours. Clavette, who is employed as a clerk in the Department of National Defence, is also the President of the Ottawa Labour Council and would like to work for candidates who support positions which enhance the rights of working people. Stevens, employed in the Public Archives of Canada, wishes to participate in activities such as envelope stuffing and addressing of correspondence from her own home or from the campaign offices of the party she supports. ...
The respondents Osborne and Millar are public servants who were elected to be delegates to the 1984 leadership convention of the Liberal Party. They were both forced to resign as delegates after being advised by their employers, the Superintendent of Insurance and the Regional Director General of Indian and lnuit Affairs, respectively, that they would suffer disciplinary action if they failed to do so. ...
Relevant Legislation
Public Service Employment Act, R.S.C., 1985, c. P-33.
2. Is s.33 of the Act inconsistent with ss. 2(b) or 2(d) of the Charter?
In my view, there is little doubt that s.33 of the Act, which prohibits partisan political expression and activity by public servants under threat of disciplinary action including dismissal from employment, violates the right to freedom of expression... .
3. Section I Analysis
(a) Limit Prescribed by Law
The respondents contend that s.33 ... is so vague that it contains no intelligible standard to enable the appellant to resort to the justificatory provisions of s.1. ... The respondents submit, further, that a limitation that is so unclear in its application as to require extensive guidelines in the form of non-authoritative views such as are contained in "Dialogue Express", the bulletin of the appellant setting out guidelines of permissible conduct, is ipso facto not a limit prescribed by law.
Vagueness can have constitutional significance in at least two ways in a s.1 analysis. A law may be so uncertain as to be incapable of being interpreted so as to constitute any restraint on governmental power. The uncertainty may arise either from the generality of the discretion conferred on the donee of the power or from the use of language that is so obscure as to be incapable of interpretation with any degree of precision using the ordinary tools. In these circumstances, there is no "limit prescribed by law" and no s.1 analysis is necessary as the threshold requirement for its application is not met. The second way in which vagueness can play a constitutional role is in the analysis of s.1. A law which passes the threshold test may, nevertheless, by reason of its imprecision, not qualify as a reasonable limit. ...In this sense vagueness is an aspect of overbreadth.
This Court has shown a reluctance to disentitle a law to s.1 scrutiny on the basis of vagueness which results in the granting of wide discretionary powers. Much of the activity of government is carried on under the aegis of laws which of necessity leave a broad discretion to government officials. ... [I]t is preferable in the vast majority of cases to deal with vagueness in the context of a s.1 analysis rather than disqualifying the law in limine. ...
... I cannot conclude that s.33 is couched in such vague or general language that it does not contain an intelligible standard. The words "engage in work", while capable of very wide import, are ordinary simple words in the English language that are capable of interpretation. The same is true of the French version which refers to "travailler." They undoubtedly present considerable difficulty in application to a specific situation, as the Report of the Commission attests, but difficulty of interpretation cannot be equated with the absence of any intelligible standard.
(b) Governmental Objective
The importance of the governmental objective is not contested in this case. It is quite properly conceded to be the preservation of the neutrality of the civil service to the extent necessary to ensure their loyalty to the Government of Canada and hence their usefulness in the public service.
(c) Proportionality
(i) Rational Connection
It is beyond dispute that restricting partisan political activity is rationally connected to the objective of maintaining the neutrality of the public service. Whether the government has chosen a means which is carefully designed to meet its objective is open to serious question. While on a strict application of Oakes this may be an aspect of the rationality test, it overlaps with the second branch of the proportionality test -- minimal impairment. In this appeal in which the main complaint is over-inclusiveness due to the vagueness and generality of the impugned provisions, it is preferable to deal with this ground of attack under the minimal impairment criterion.
(ii) Minimal Impairment
The respondents' main submission is that the provisions of s.33 are over-inclusive both as to the range of activity that is prohibited and the level of public servant to whom the restrictions apply. The crucial words in s.33 are, in the English version, "engage in work for or against a political party" or "candidate" and, in the French version, "travailler pour un candidat" or "un parti politique". In their natural meaning these words in both languages are very comprehensive....
The result of this broad general language is that the restrictions apply to a great number of public servants who in modern government are employed in carrying out clerical, technical or industrial duties that are completely divorced from the exercise of any discretion that could be in any manner affected by political considerations. The need for impartiality and indeed the appearance thereof does not *** remain constant throughout the civil service hierarchy. ... To apply the same standard to a deputy minister and a cafeteria worker appears to me to involve considerable overkill and does not meet the test of constituting a measure that is carefully designed to impair freedom of expression as little as reasonably possible.
In this context, the availability of alternative methods becomes relevant. The expert opinion [of] K. Kernaghan and R. Whitaker, and D. Bean, National President of the Public Service Alliance of Canada, was that a substantial number of public servants neither provide policy advice nor have any discretion with respect to the administration. Moreover, witnesses Whitaker and Bean stated that the line between management and non-managerial employees, already in existence, formed a rough fine which would allow the bulk of the public service below the line to be politically freed, while maintaining the neutrality of the public service as an institution.
With respect to the nature of the political activity, the situation is similar. While a public servant may attend a political meeting and contribute money to a candidate or a political party, he or she may not take part in the discussion at the meeting or make a public statement of support for the party which he or she supports financially. Activity such as volunteer work in making telephone calls or stuffing envelopes for a candidate or partisan questioning of candidates at a political meeting are all included in the ~section's general language. ...
To summarize, the impugned legislation bans all partisan-related work by all public servants, without distinction either as to the type of work, or as to their relative role, level or importance in the hierarchy of the public servant. ...
... The restrictions on freedom of expression in this case are over-inclusive and go beyond what is necessary to achieve the objective of an impartial and loyal civil service. In this regard we were referred to the legislation in other jurisdictions in which distinctions were made both as to the activity proscribed and the level of civil servant....
In conclusion, I am of the view that s.33 fails the minimum impairment test and it is therefore unnecessary to consider the third aspect of the proportionality test. ...
This is a case in which I have concluded that s.33 in many of its applications exceeds what is necessary to achieve the admittedly valid government objective ... In a number of cases to which the section applies the restriction is a justifiable limit on freedom of expression and, had it been limited to these, would have been unassailable. In these circumstances, where there exists a less restrictive alternative, the question arises as to whether the overbreadth should be cured by the legislature or by the court. In this case Walsh J. chose to cure the defect rather than leaving it to Parliament. He dealt with the respondents on a case-by-case basis and tailored the legislation to conform with a result that would not involve an unreasonable limit on the freedom of expression. I characterize this approach as "reading down". On the other hand, the Court of Appeal struck out the offending parts of the section leaving it to Parliament to cure the defect by adopting an alternative that will conform to the Charter in its various applications. ... This Court has not decided whether the remedies of "reading down" and its companion "the constitutional exemption" are remedies which it can apply in a Charter case. I have concluded that, assuming the Court has the power to "read down", it should not be exercised in this case. It is not therefore necessary to decide whether the Court has the power. ...
... By reason of the diverse and novel problems which it will be called upon to redress, the court must maintain at its disposition a variety of remedies as part of its arsenal. Reading down may in some cases be the remedy that achieves the objectives to which I have alluded while at the same time constituting the lesser intrusion into the role of the legislature. ...
... The number of instances in which the operation of the section would otherwise have been in breach of s.2(b) ... is extensive. On this basis there is little doubt that in future other instances will arise which will require a similar reading down of the section. In the final analysis, a law that is invalid in so many of its applications will, as a result of wholesale reading down, bear little resemblance to the law that Parliament passed and a strong inference arises that it is invalid as a whole. In these circumstances it is preferable to strike out the section to the extent of its inconsistency with s.2(b). To maintain a section that is so riddled with infirmity would not uphold the values of the Charter and would constitute a greater intrusion on the role of Parliament. In my opinion it is Parliament that should determine how the section should be redrafted and not the Court. ...
[The judgments of Wilson J. (L'Heureux-Dubé J. concurring) and of LaForest J. are omitted]
Stevenson J. (dissenting)
... The impugned provision forbids partisan political activity in pursuit of several goals. If the state's sole objective is to control the political activities of those government employees who exercise discretion in dealing with the public, then the section is over-reaching. That control, however, is not the sole objective of placing restraints on the political activities of public servants.
In discussing the necessity for placing restraints on partisan political activities, the trial judge spoke of the "merit principle for appointments and promotions", "confidence of the public in fair and impartial administration", and the confidence of elected ministers "in the advice of subordinate public servants on whose work they must rely" (p. 234). The legislation is aimed at enhancing and preserving these characteristics, according with the comments of Dickson C.J. in Fraser v. Public Service Staff Relations Board [] where he spoke of "impartiality, neutrality, fairness and integrity" in the tradition surrounding our public service (p. 471).
Professor Kernaghan, in cross-examination was asked to accept, and did accept, the proposition that civil servants "[m]ust not engage in partisan political activities which will jeopardize the political neutrality both real and perceived of the public service".
The legislation could distinguish between various levels of employees, but, in my view, the case against partisan activities at all levels is a strong one. No civil servant must owe, or be seen to owe, appointment or promotion to partisan activities. Activities tend to be overt and they are likely to be known or become known to those within and without the public service. Once allegiances are known, the principles of neutrality, impartiality and integrity are endangered. There is a danger within the service that those seeking appointments or promotions will fee some incentive to cut their cloth to the known partisan interests of those who have influence over appointments and promotions. Visible partisanship by civil servants displays a lack of neutrality, and a betrayal of that convention of neutrality. The public perception of neutrality is thus severely impaired, if not destroyed.
At the same time we must recognize that the legislation does not forbid membership in or financial support of a party. Nor does it prohibit speaking on all public issues.
An effective civil service is essential to modern day democratic society. ... In my view a measure of neutrality is necessary in order to preserve that effectiveness and the state may impose appropriate limits to that end. I do not read my colleague's judgment as denying that proposition. Our difference centres on whether the means chosen offends the "minimal means" test.
The means must, of course, be assessed in the light of the objective, which I take to be to secure civil service neutrality in all of its elements. I must say that to permit overt partisan political activity is to come perilously close to abandoning the principle of neutrality. The government may, of course, decide to abandon or modify that principle, but this legislation is directed towards its preservation and our task is to decide if this means of preservation is justifiable.
Section 1 is a flexible provision and this Court is still engaged in the process of defining and refining the factors to be considered in its application. ...
In looking at the "minimal impairment" test I am reminded of the observations of Dickson C.J. in R. v. Edwards Books and Art Ltd. [] of a reasonable limit being one it was reasonable to impose, and his comments in [Irwin Toy Ltd.] [] that the Court would not take a restrictive approach to social science evidence in the name of minimal impairment. I recognize, at once, that those were cases where the Court was looking at legislation mediating between competing interests. This case does not fall into any recognized category because here the state is limiting a right in another context...
I would not impose an exacting standard upon the state in the circumstances of this case. It is unnecessary, however, for me to define the standard because ... the proposed less restrictive means are flawed. I agree with the trial judge who could not conclude that categorizing the civil service (and thus abandoning any restraint on the so-called lower level civil service) would satisfy the objective of preserving the political neutrality of the civil service. Before we say that other less intrusive means are available, we must also be able to say that those means will meet the objective.
In my view, there is an appropriate proportionality between the effects of the measure and the objective. The provision does not deny freedom of expression. It imposes a limitation on that freedom in the context of partisan political activities upon persons who, in the words of Dickson C.J. in Fraser v. Public Service Staff Relations Board [] "must know, or at least be deemed to know, that employment in the public service involves acceptance of certain restraints".
Finally, I am not persuaded that Walsh J. was engaged in reading down the legislation. He upheld it. He gave it a "judicial interpretation" which he described as "liberal" in that it restricted no more activities than necessary to preserve the tradition of neutrality. To interpret legislation in accordance with Charter concepts is not to condemn it as violative of those concepts. ...
Notes and questions
1. The Court gives little guidance as to what an appropriate dividing line might be between those in the civil service who are entitled to be politically active and those who are not. Should it simply be a question of hierarchy i.e. the more senior the position the less likely that political activity is permitted? What considerations other than hierarchy might be relevant?
2. In Fraser v. Public Staff Relations Board, [1985] 2 S.C.R. 445, the Court, in a pre-Charter case, considered the extent of permissible criticism of government by public servants. In that case, the Court upheld the dismissal of an employee of Revenue Canada who had openly and repeatedly attacked the Government with respect to its metrification policies and the adoption of the Charter. The Court commented on the need to balance freedom of expression with the duty of a public servant to properly fulfil his functions as a government employee as follows (per Dickson C.J.):
3. To what extent should a newly elected government be permitted to dismiss public servants and replace them with individuals whose political beliefs are more closely attuned to their own? Is political patronage contrary to s.2(b)? See the Branti decision
4. The Ontario equivalent to the Public Service Employment Act has also been the subject of a Charter challenge. In Ontario Public Service Employees Union v. Ontario (Attorney General), (1993), 14 O.R. (3d) 476 (Ont. C.A.), the court considered a number of provisions of the Public Service Act: s. 11(c), which prohibited provincial Crown employees from running for public office; s. 12(d) which prohibited them from soliciting funds for political candidates; s. 13(1), which prohibited them from canvassing on behalf of candidates, and s. 14 which prohibited them from publicly expressing their views on electoral issues. The court held that each of these provisions violated s. 2(b), except as applied to deputy ministers and other designated persons. Unlike the Supreme Court of Canada in Osborne, however, the Court of Appeal in this case chose not to strike down the entire Act. Instead, it merely read down the aforementioned provisions, such that they would only apply to deputy ministers and other designated persons.
D. AMERICAN JURISPRUDENCE
Buckley v. Valeo 424 U.S. 1 (1976)
Per curiam
1. Contributions and Expenditure Limitations
Congress [adopted a scheme] to regulate federal election campaigns [which] includes restrictions on political contributions and expenditures... . The major contribution and expenditure limitations ... prohibit individuals from contributing more than $25,000 in a single year or more than $1,000 to any single candidate for an election campaign and from spending more than $1,000 a year Arelative to a clearly defined candidate.@ Other provisions restrict a candidate=s use of personal and family resources in his campaign and limit the overall amount that can be spent by a candidate in campaigning for federal office...
A. General Principles
... Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression... . Although First Amendment protections are not confined to Athe exposition of ideas,@[] Athere is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs... . This no more than reflects our Aprofound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,@[]. In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential... .
B. Contribution Limitations
Appellees argue that the Act=s restrictions on large campaign contributions are justified by three governmental interests. [T]he primary interest served by the limitations ... is the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions o n candidates= positions and on their actions if elected to office. Two Aancillary@ interests ... [are first, that] the limits serve to mute the voices of affluent persons and groups in the election process and thereby to equalize the relative ability to all citizens to affect the outcome of elections, [and second, that] the ceilings may ... act as a brake on the skyrocketing cost of political campaigns and thereby serve to open the political system more widely to candidates without access to sources of large amounts of money.
It is unnecessary to look beyond the Act=s primary purpose - to limit the actuality and appearance of corruption resulting from large individual financial contributions - in order to find a constitutionally sufficient justification for the $1,000 contribution limitation... . To the extent that large contributions are given to secure a political quid pro quo ..., the integrity of our system of representative democracy is undermined.
Appellants contend that the contribution limitations must be invalidated because bribery laws and narrowly drawn disclosure requirements constitute a less restrictive means of dealing with Aproven and suspected quid pro quo arrangements.@ But laws making criminal the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action. And while disclosure requirements serve [] salutary purposes ..., Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption... .
The Act=s $1,000 contribution limitation focuses precisely on the problem of large campaign contributions - the narrow aspect of political association where the actuality and potential for corruption have been identified - while leaving persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources... .
We find that ... the weighty interests served by restricting the size of financial contributions to political candidates are sufficient to justify the limited effect upon First Amendment freedoms caused by the $1,000 contribution ceiling...
... Apart from these First Amendment concerns, appellants argue that the contribution limitations work such an invidious discrimination between incumbents and challengers that the statutory provisions must be declared unconstitutional on their face...
There is no such evidence to support the claim that the contribution limitations in themselves discriminate against major-party challengers to incumbents ... [T]he Act on its face treats all candidates equally with regard to contribution limitations. And the restriction would appear to benefit minor-party and independent candidates relative to their major-party opponents because major-party candidates receive far more money in large contributions...
In view of these considerations, we conclude that the impact of the Act=s $1,000 contribution limitation on major-party challengers and on minor-party candidates does not render the provision unconstitutional on its face. In addition to the $1,000 limitation on the nonexempt contributions that an individual may make to a particular candidate for any single election, the Act contains an overall $25,000 limitation on total contributions by an individual during any calendar year. [] ... The limited, additional restriction on associational freedom imposed by the overall ceiling is thus no more than a corollary of the basic individual contribution limitation that we have found to be constitutionally valid. C. Expenditure Limitations
The Act=s expenditure ceilings impose direct and substantial restraints on the quantity of political speech. The most drastic of the limitations restricts individuals and groups, ... to an expenditure of $1,000 Arelative to a clearly identified candidate during a calendar year.@ [] Other expenditure ceilings limit spending by candidates, [], their campaigns, [], and political parties in connection with election campaigns, []. It is clear that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups, and candidates... .
1. The $1,000 Limitation on Expenditures ARelative to a Clearly Identified Candidate@
The plain effect of [this provision] is to prohibit all individuals ... and all groups, except political parties and campaign organizations, from voicing their views Arelative to a clearly identified candidate@ through means that entail aggregate expenditures of more than $1,000 during a calendar year. The provision, for example, would make it a federal criminal offense for a person or association to place a single one-quarter page advertisement Arelative to a clearly identified candidate@ in a major metropolitan newspaper... .
We find that the governmental interest in preventing corruption and the appearance of corruption is inadequate to justify [this] ceiling on independent expenditures. First, assuming, arguendo, that large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions, ' 608(e)(1) does not provide an answer that sufficiently relates to the elimination of those dangers. Unlike the contribution limitations= total ban on the giving of large amounts of money to candidates, ' 608(e)(1) prevents only some large expenditures. so long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views...
Second, ... the independent advocacy restricted by the provision does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions. The parties defending [it] contend that it [will] prevent would-be contributors from avoiding the contribution limitations by the simple expedient of paying directly for media advertisements... . They argue that expenditures controlled by or coordinated with the candidate and his campaign might well have virtually the same value to the candidate as a contribution and would pose similar dangers of abuse ... [But] ' 608(e)(1) limits expenditures for express advocacy of candidates made totally independently of the candidate and his campaign. Unlike contributions, such independent expenditures may well provide little assistance to the candidate=s campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditures with the candidate, or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate...
While the independent expenditure ceiling thus fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process, it heavily burdens core First Amendment expression... . Advocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation.
It is argued, however, that the ancillary governmental interest in equalizing the relative ability of individuals and groups to influence the outcome of elections serves to justify the limitation on express advocacy of the election or defeat of the candidates imposed by ' 608(e)(1)=s expenditure ceiling. But the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed Ato secure >the widest possible dissemination of information from diverse and antagonistic sources,=@ and A>to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.=@ The First Amendment=s protection against governmental abridgment of free expression cannot properly be made to depend on a person=s financial ability to engage in public discussion [].
... ' 608(e)(1)=s independent expenditure limitation is unconstitutional.
2. Limitation on Expenditures by Candidates from Personal or Family Resources
The Act also sets limits on expenditures by a candidate Afrom his personal funds, or the personal funds of his immediate family, in connection with his campaigns during any calendar year.@ [] These ceilings vary from $50,000 for Presidential or Vice Presidential candidates to $35,000 for senatorial candidates, and $25,000 for most candidates for the House of Representatives.
[These ceilings] impos[e] a substantial restraint on the ability of persons to engage in protected First Amendment expression. The candidate, no less than any other person, has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election and the election of other candidates. Indeed, it is of particular importance that candidates have the unfettered opportunity to make their views known so that the electorate may intelligently evaluate the candidates= personal qualities and their positions on vital public issues before choosing among them on election day... .
The primary governmental interest served by the Act - the prevention of actual and apparent corruption of the political process - does not support the limitation on the candidate=s expenditure of his own personal funds ... Indeed, the use of personal funds reduces the candidate=s dependence on outside contributions... .
The ancillary interest in equalizing the relative financial resources of candidates competing for elective office, therefore, provides the sole relevant rationale... . That interest is clearly not sufficient to justify the provision=s infringement of fundamental First Amendment rights. First, the limitation may fail to promote financial equality among candidates. A candidate who spends less of his personal resources on his campaign may nonetheless outspend his rival as a result of more successful fundraising efforts... . Second, and more fundamentally, the First Amendment simply cannot tolerate ' 608(a)=s restriction upon the freedom of a candidate to speak without legislative limit on behalf of his own candidacy. We therefore hold that ' 608(a)=s restriction on a candidate=s personal expenditure is unconstitutional.
3. Limitations on Campaign Expenditures
Section 6088 places limitations on overall campaign expenditures by candidates seeking nomination for election and election to federal office. Presidential candidates may spend $10,000,000 in seeking nomination for office and an additional $20,000,000 in the general election campaign. [] The ceiling on senatorial campaigns is pegged to the size of the voting-age population of the Senate with minimum dollar amounts applicable to campaigns in States with small populations...
No governmental interest that has been suggested is sufficient to justify the restriction on the quantity of political expression imposed by [these] campaign expenditure limitations. The major evil associated with rapidly increasing campaign expenditures is the danger of candidate dependence on large contributions. The interest in alleviating the corrupting influence of large contributions is served by the Act=s contribution limitations and disclosure provisions rather than by [] campaign expenditure ceilings...
The interest in equalizing the financial resources of candidates competing for federal office is no more convincing a justification for restricting the scope of federal election campaigns. Given the limitation on the size of outside contributions, the financial resources available to a candidate=s campaign, like number of volunteers recruited, will normally vary with the size and intensity of the candidate=s support. There is nothing invidious, improper, or unhealthy in permitting such funds to be spent to carry the candidate=s message to the electorate. Moreover, the equalization of permissible campaign expenditures might serve not to equalize the opportunities of all candidates, but to handicap a candidate who lacked substantial name recognition or exposure to his views before the start of the campaign.
The campaign expenditure ceilings appear to be designed primarily to serve the governmental interests in reducing the allegedly skyrocketing costs of political campaigns ... [T]he mere growth in the cost of federal election campaigns in and of itself provides no basis for governmental restrictions on the quantity of campaign spending and the resulting limitation on the scope of federal campaigns. The First Amendment denies government the power to determine that spending to promote one=s political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government, but the people - individually as citizens and candidates and collectively as associations and political committees - who must retain control over the quantity and range of debate on public issues in a political campaign... .
Notes and questions
1. Note the distinction the U.S. Supreme Court draws between the permissibility of restrictions on contributions to candidates and political expenditures more generally. Although the decision has been criticized, it is important to note that it did uphold restrictions on direct contributions to candidates.
By contrast, the Court invalidated limitations on expenditures. In doing so, it rejected the proposition that it is permissible for the State to control the political process by equalizing the positions of candidates and political parties. Do you agree with that conclusion? Why or why not?
2. One other reason that the Court invalidated limitations on expenditures by third parties was that it would have the effect of prohibiting all individuals and groups, except those already entrenched in some way in the political process, from voicing their views. Do you have any concerns about restricting participation in the electoral process to the candidates and the parties themselves? In other words, is it anti-democratic to deny interest groups, associations and individuals the right to express their views during an election, unless they are endorsed by a party or candidate?
3. In other contexts, we have considered whether a speaker is entitled to claim the most effective mode of communication, or otherwise whether the State can restrict that speaker to an alternative mode of communication that may be less effective. If you accept that the speaker is entitled to be effective in other contexts, should that same principle apply in the context of campaign expenditures and contributions? In other words, if an individual or an organization considers money to be their most effective method of communication, should they be entitled to spend as much money as they have in order to be as effective as they want to be? Why or why not? Bellotti v. Baird 435 U.S. 765 (1978)
[National banking associations and business corporations challenged the constitutionality of a Massachusetts criminal statute that prohibited them from making contributions or expenditures to influence the outcome of a vote on any question submitted to voters other than questions materially affecting the property, business, or assets of the corporation. This excerpt focuses on the status of corporate political speech under the first amendment.]
Powell J.
... The court below framed the principal question in this case as whether and to what extent corporations have First Amendment rights. We believe that the court posed the wrong question.... The proper question therefore is not whether corporations Ahave@ First Amendment rights.... Instead, the question must be whether [this provision] abridges expression that the First Amendment was meant to protect....
The speech proposed by appellants is at the heart of the First Amendment=s protection....
The referendum issue that appellants wish to address falls squarely within this description. In appellants' view, the enactment of a graduated personal income tax, as proposed to be authorized by constitutional amendment, would have a seriously adverse effect on the economy of the State []. The importance of the referendum issue to the people and government of Massachusetts is not disputed. Its merits, however, are the subject of sharp disagreement.
... If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. The inherent worth of the speech in terms of its capacity for informing the public does not depend on the identity of its source, whether corporation, association, union, or individual.
The court below nevertheless held that corporate speech is protected by the First Amendment only when it pertains directly to the corporation's business interests.... The question in this case, simply put, is whether the corporate identity of the speaker deprives this proposed speech of what otherwise would be its clear entitlement to protection....
Freedom of speech and the other freedoms encompassed by the First Amendment always have been viewed as fundamental components of the liberty safeguarded by the Due Process Clause [], and the Court has not identified a separate source for the right when it has been asserted by corporations.[]
Yet appellee suggests that First Amendment rights have generally been afforded only to corporations engaged in the communications business or through which individuals express themselves....
The press cases emphasize the special and constitutionally recognized role of that institution in informing and educating the public, offering criticism, and providing a forum for discussion and debate. [] But the press does not have a monopoly on either the First Amendment or the ability to enlighten. [] Similarly, the Court's decisions involving corporations in the business of communication or entertainment are based not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas. []...
Nor do our recent commercial speech cases [support appellees' position]. They illustrate that the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw....
We thus find no support ... for the proposition that speech that would otherwise be within the protection of the First Amendment loses that protection simply because its source is a corporation that cannot prove ... a material effect on its business or property....
In the realm of protected speech, the legislature is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue. [] If a legislature may direct business corporations to "stick to business", it also may limit other corporations - religious, charitable, or civic to their respective "business" when addressing the public. Such power in government to channel the expression of views is unacceptable under the First Amendment. Especially where, as here, the legislature's suppression of speech suggests an attempt to give one side of a debatable public question an advantage in expressing its views to the people, the First Amendment is plainly offended.
[On the question whether the legislation addresses a compelling state interest:]
... Preserving the integrity of the electoral process, preventing corruption, and "sustain[ing] the active, alert, responsibility of the individual citizen in a democracy for the wise conduct of government" are interests of the highest importance. [] Preservation of the individual citizen's confidence in government is equally important.
[Appellee's arguments] hinge upon the assumption that [corporate] participation would exert an undue influence on the outcome of a referendum vote, and - in the end - destroy the confidence of the people in the democratic process and the integrity of government. According to appellee, corporations are wealthy and powerful and their views may drown out other points of view.... But there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts, or that there has been any threat to the confidence of the citizenry in government.[]
[Moreover,] [r]eferenda are held on issues, not candidates for public office. The risk of corruption perceived in cases involving candidate elections [] simply is not present in a popular vote on a public issue. To be sure, corporate advertising may influence the outcome... ; this would be its purpose. But the fact that advocacy may persuade the electorate is hardly a reason to suppress it: The Constitution "protects expression which is eloquent no less than that which is unconvincing." [] "[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment....@
White J. (dissenting)
... There is now little doubt that corporate communications come within the scope of the First Amendment. This, however, is merely the starting point of analysis, because an examination of the First Amendment values that corporate expression furthers and the threat to the functioning of a free society it is capable of posing reveals that it is not fungible with communications emanating from individuals and is subject to restrictions which individual expression is not. Indeed, what some have considered to be the principal function of the First Amendment, the use of communication as a means of self-expression, self-realization, and self-fulfillment, is not at all furthered by corporate speech. It is clear that the communications of profit-making corporations are not "an integral part of the development of ideas, of mental exploration and of the affirmation of self". They do not represent a manifestation of individual freedom or choice. Undoubtedly ... there are some corporations formed for the express purpose of advancing certain ideological causes ... [such as the NAACP] or, as in the case of the press, of disseminating information and ideas.... But this is hardly the case generally with corporations operated for the purpose of making profits. Shareholders in such entities do not share a common set of political or social views, and they certainly have not invested their money for the purpose of advancing political or social causes or in an enterprise engaged in the business of disseminating news and opinion....
Rehnquist J. (dissenting)
... The appellants herein either were created by the Commonwealth or were admitted into the Commonwealth only for the limited purposes described in their Charters and regulated by state law. Since it cannot be disputed that the mere creation of a corporation does not invest it with all the liberties enjoyed by natural persons ... our inquiry must seek to determine which constitutional protections are Aincidental to its very existence.@...
There can be little doubt that when a State creates a corporation with the power to acquire and utilize property, it necessarily and implicitly guarantees that the corporation will not be deprived of that property absent due process of law.... It cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes. A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere. Furthermore, it might be argued that liberties of political expression are not also necessary to effectuate the purposes for which the States permit commercial corporations to exist. So long as the Judicial Branches ... remain open to protect the corporation's interest in its property, it has no need, though it may have the desire, to petition the political branches for similar protection.... I would think that any particular form of organization upon which the State confers special privileges or immunities different from those of natural persons would be subject to like regulation, whether the organization is a labor union, a partnership, a trade association, or a corporation....
Notes and questions
1. Two different points should be separated from the outset: first, whether corporations have any status to participate in the political process qua corporations; and second, whether the First Amendment is completely indifferent to the status of those who engage in debate.
Can it fairly be said that a corporation has no interest in participating in the political process? Is it possible to argue, for example, that corporations, by definition, are limited to economic purposes? If that is so, why is it that society attempts to promote corporate responsibility and participation in social and environmental programs?
On another point, why should it matter that the shareholders of a company have not joined together for a political purpose? We know, for example, that groups and associations that are created for political or ideological purposes will disagree on questions of strategy and substance. We also know that not all those who pay union dues or even who are members in a labour union will agree with the position the union takes. In both those cases, however, principles of majoritarianism tend to govern. Why should that be any different in the case of shareholders?
Finally, why should it matter whether a corporation is a natural or an artificial legal entity? Should all artificial entities, including public interest groups and labour unions, be subject to the same restrictions on their participation in the political process? If not, why should they be advantaged vis-à-vis corporations? Why should natural persons be advantaged vis-à-vis artificial entities?
2. Even if you accept the proposition that corporations are different than natural persons, does it follow that their participation in the political process is inherently detrimental, rather than inherently beneficial? What should a constitutional guarantee of expressive freedom protect: the quality of debate, or the right to participate in debate? If you think that the quality of debate is the relevant criterion, how do you avoid the censorship inherent in legislation that determines which debate is beneficial and which, by contrast, is detrimental? Austin v. Michigan Chamber of Commerce 494 U.S. 652 (1990)
Marshall J.
... Section 54(1) of the Michigan Campaign Finance Act prohibits corporations from making contributions and independent expenditures in connection with state candidate elections.... The Act exempts from this general prohibition against corporate political spending any expenditure made from a segregated fund. [] A corporation may solicit contributions to its political fund only from an enumerated list of persons associated with the corporation. []
The Michigan State Chamber of Commerce, a nonprofit Michigan corporation, challenges the constitutionality of this statutory scheme. The Chamber comprises more than 8,000 members, three-quarters of whom are for-profit corporations. The Chamber's general treasury is funded through annual dues required of all members. Its purposes, as set out in the bylaws, are to promote economic conditions favourable to private enterprise....
In June 1985 Michigan scheduled a special election to fill a vacancy in the Michigan House of Representatives. Although the Chamber had established and funded a separate political fund, it sought to use its general treasury funds to place in a local newspaper an advertisement supporting a specific candidate. [The Act made such an expenditure punishable as a felony].
To determine whether Michigan's restrictions on corporate political expenditures may constitutionally be applied to the Chamber, we must ascertain whether they burden the exercise of political speech and, if they do, whether they are narrowly tailored to serve a compelling state interest....
This Court concluded in FEC v. Massachusetts Citizens for Life, Inc. [] that a federal statute requiring corporations to make independent political expenditures only through special segregated funds, [] burdens corporate freedom of expression.... The Court reasoned that the small nonprofit corporation in that case would face certain organizational and financial hurdles in establishing and administering a segregated political fund.... These hurdles "impose[d] administrative costs that many small entities [might] be unable to bear" and "create[d] a disincentive for such organizations to engage in political speech." [].
Despite the Chamber's success in administering its separate political fund, ... Michigan's segregated fund requirement still burdens the Chamber's exercise of expression because "the corporation is not free to use its general funds for campaign advocacy purposes."... []. In addition, a nonprofit corporation like the Chamber may solicit contributions to its political fund only from members, stockholders of members, officers or directors of members, and the spouses of any of these persons []. Although these requirements do not stifle corporate speech entirely, they do burden expressive activity. Thus, they must be justified by a compelling state interest.
The State contends that the unique legal and economic characteristics of corporations necessitate some regulation of their political expenditures to avoid corruption or the appearance of corruption. State law grants corporations special advantages - such as limited liability, perpetual life, and favourable treatment of the accumulation and distribution of assets - that enhance their ability to attract capital and to deploy their resources in ways that maximize the return on their shareholders= investments. These state-created advantages not only allow corporations to play a dominant role in the nation's economy, but also permit them to use "resources amassed in the economic marketplace" to obtain "an unfair advantage in the political marketplace."[] As the Court explained in MCFL, the political advantage of corporations is unfair because
We therefore have recognized that "the compelling governmental interest in preventing corruption supports the restriction of the influence of political war chests funneled through the corporate form."
The Chamber argues that this concern about corporate domination of the political process is insufficient to justify restrictions on independent expenditures. Regardless of whether this danger of Afinancial quid pro quo@ corruption, [], may be sufficient to justify a restriction on independent expenditures, Michigan's regulation aims at a different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas. [] The Act does not attempt "to equalize the relative influence of speakers on elections," []; rather, it ensures that expenditures reflect actual public support for the political ideas espoused by corporations....
We find that the Act is precisely targeted to eliminate the distortion caused by corporate spending while also allowing corporations to express their political views. [T]he Act does not impose an absolute ban ... but permits corporations to make independent political expenditures through separate segregated funds. Because persons contributing to such funds understand that their money will be used solely for political purposes, the speech generated accurately reflects contributors' support for the corporation's political views.[]....
The Chamber contends that even if the Campaign Finance Act is constitutional with respect to for-profit corporations, it nonetheless cannot be applied to a nonprofit ideological corporation like a chamber of commerce. In MCFL, we held that the nonprofit organization there had "features more akin to voluntary political associations than business firms, and therefore should not have to bear burdens on independent spending solely because of [its] incorporated status." []. In reaching that conclusion, we enumerated three characteristics of the corporation that were "essential" to our holding. ... The first characteristic of MCFL, that distinguished it from ordinary business corporations was that the organization "was formed for the express purpose of promoting political ideas, and cannot engage in business activities." []
In contrast, the Chamber's bylaws set forth more varied purposes, several of which are not inherently political. For instance, the Chamber compiles and disseminates information relating to social, civic, and economic conditions, trains and educates its members, and promotes ethical business practices. Unlike MCFL'S, the Chamber's educational activities are not expressly tied to political goals; many of its seminars, conventions, and publications ... focus on business and economic issues. ...
We described the second feature of MCFL as the absence of "shareholders or other persons affiliated so as to have a claim on its assets or earnings. This ensures that persons connected with the organization will have no economic disincentive for disassociating with it if they disagree with its political activity." []. Although the Chamber also lacks shareholders, many of its members may be similarly reluctant to withdraw as members even if they disagree with the Chamber's political expression, because they wish to benefit from the Chamber's nonpolitical programs and to establish contacts with other members of the business community.... Thus, we are persuaded that the Chamber's members are more similar to shareholders of a business corporation than to the members of MCFL in this respect.
The final characteristic... in MCFL was the organization's independence from the influence of business corporations. On this score, the Chamber differs most greatly from the Massachusetts organization. MCFL was not established by, and had a policy of not accepting contributions from, business corporations. Thus it could not "serv[e] as [a] condui[t] for the type of direct spending that creates a threat to the political marketplace." [] In striking contrast, more than three-quarters of the Chamber's members are business corporations, whose political contributions and expenditures can constitutionally be regulated by the State. ... Because the Chamber accepts money from for-profit corporations, it could ... serve as a conduit for corporate political spending. In sum, the Chamber does not possess the features that would compel the State to exempt it from restrictions on independent political expenditures.
The Chamber also attacks ' 54(1) as underinclusive because it does not regulate the independent expenditures of unincorporated labor unions. Whereas unincorporated unions, and indeed individuals, may be able to amass large treasuries, they do so without the significant state-conferred advantages of the corporate structure; corporations are "by far the most prominent example of entities that enjoy legal advantages enhancing their ability to accumulate wealth." []. The desire to counterbalance those advantages unique to the corporate form is the State's compelling interest in this case... .
Moreover, labor unions differ from corporations in that union members who disagree with a union's political activities need not give up full membership in the organization to avoid supporting its political activities. Although a union and an employer may require that all bargaining unit employees become union members, a union may not compel those employees to support financially "union activities beyond those germane to collective bargaining, contract administration, and grievance adjustment." []. An employee who objects to a union's political activities thus can decline to contribute to those activities.... As a result, the funds available for a union's political activities more accurately reflects members' support for the organization's political views than does a corporation's general treasury....
Because we hold that ' 54(1) does not violate the First Amendment, we must address the Chamber's contention that the... statute treats similarly situated entities unequally....
Although all corporations enjoy the same state-conferred benefits inherent in the corporate form, media corporations differ significantly from other corporations in that their resources are devoted to the collection of information and its dissemination to the public. We have consistently recognized the unique role that the press plays in "informing and educating the public, offering criticism, and providing a forum for discussion and debate." [] The Act's restrictions on independent expenditures therefore might discourage incorporated news broadcasters or publishers from serving their crucial societal role. The media exception ensures that the Act does not hinder or prevent the institutional press.... A valid distinction thus exists between corporations that are part of the media industry and other corporations that are not involved in the regular business of imparting news to the public....
Scalia J., dissenting
A Attention all citizens. To assure the fairness of elections by preventing disproportionate expression of views of any single powerful group, your Government has decided that the following associations of persons shall be prohibited from speaking or writing in support of any candidate: In permitting Michigan to make private corporations the first object of this Orwellian announcement, the Court today endorses the principle that too much speech is an evil that the democratic majority can proscribe. I dissent because that principle is contrary to our case law and incompatible with the absolutely truth of the First Amendment: that government cannot be trusted to assure, through censorship, the Afairness@ of political debate. ...
... Infinitely more important than that is [the Court=s] departure from long accepted premises of our political system regarding the benevolence that can be expected of government in managing the arena of public debate, and the danger that is to be anticipated from powerful private institutions that compete with government, and with one another, within that arena.
Perhaps the Michigan law before us here has an unqualifiedly noble objective - to Aequalize@ the political debate by preventing disproportionate expression of corporations= points of view. But governmental abridgement of liberty is always undertaken with the very best of announced objectives ... and often with the very best of genuinely intended objectives... . The premise of our Bill of Rights, however, is that there are some things - even some seemingly desirable things - that government cannot be trusted to do. The very first of these is establishing the restrictions upon speech that will assure Afair@ political debate. The incumbent politician who says he welcomes full and fair debate is no more to be believed than the entrenched monopolist who says he welcomes full and fair competition. Perhaps the Michigan legislature was genuinely trying to assure a Abalanced@ presentation of political views; on the other hand, perhaps it was trying to give unincorporated unions ... political advantage over major employers. Or perhaps it was trying to assure a Abalanced@ presentation because it knows that with evenly balanced speech incumbent officeholders generally win. The fundamental approach of the First Amendment ... was to assume the worst, and to rule the regulation of political speech Afor fairness= sake@ simply out of bounds.
To eliminate voluntary associations - not only including powerful ones, but especially including powerful ones - from the public debate is either to augment the always dominant power of government or to impoverish the public debate. The case at hand is a good enough example. Why should the Michigan voters in the 93d House District be deprived of the information that private associations owning and operating a vast percentage of the industry of the State, and employing a large number of its citizens, believe that the election of a particular candidate is important to their prosperity? Contrary to the Court=s suggestion, the same point cannot effectively be made through corporate PACs to which individuals may voluntarily contribute. It is important to the message that it represents the views of Michigan=s leading corporations as corporations, occupying the Alofty platform@ that they do within the economic life of the State - not just the views of some other voluntary associations to which some of the corporations= shareholders belong.
Despite all the talk about Acorruption and the appearance of corruption@ - evils that are not significantly implicated and that can be avoided in many other ways - it is entirely obvious that the object of the law we have approved today is not to prevent wrongdoing but to prevent speech... . This is not an argument that our democratic traditions allow... . The premise of our system is that there is no such thing as too much speech - that the people are not foolish but intelligent, and will separate the wheat from the chaff. ... [A] healthy democratic system can survive the legislative power to prescribe how much political speech is too much, who may speak and who may not. ...
... The Court's opinion says that political speech of corporations can be regulated because "[s]tate law grants [them] special advantages," [] and because this "unique state-conferred corporate structure ... facilitates the amassing of large treasuries." [].... Those individuals who form that type of voluntary association known as a corporation are, to be sure, given special advantages .... But so are other associations and private individuals given all sorts of special advantages that the State need not confer.... It is rudimentary that the State cannot exact as the price of those special advantages the forfeiture of First Amendment rights. [] The categorical suspension of the right of any person, or of any association of persons, to speak out on political matters must be justified by a compelling state need. [] Which is why the Court puts forward its second bad argument, the fact that corporations "amas[s] large treasuries." But that alone is also not sufficient justification for the suppression of political speech, unless one thinks it would be lawful to prohibit men and women whose net worth is above a certain figure from endorsing political candidates. Neither of these two flawed arguments is improved by combining them and saying, as the Court in effect does, that "since the State gives special advantages to these voluntary associations, and since they thereby amass vast wealth, they may be required to abandon their right of political speech." ...
As for the second part of the Court's argumentation, the fact that corporations... possess "massive wealth": Certain uses of "massive wealth" in the electorial process - whether or not the wealth is the result of "special advantages" conferred by the State - pose a substantial risk of corruption which constitutes a compelling need for the regulation of speech. Such a risk plainly exists when the wealth is given directly to the political candidate, to be used under his direction and control. We held in Buckley v. Valeo [] however, that independent expenditures to express the political views of individuals and associations do not raise a sufficient threat of corruption to justify prohibition. []. Neither the Court's opinion nor either of the concurrences makes any effort to distinguish that case ...
Buckley v. Valeo should not be overruled, because it is entirely correct. ... "Michigan's regulation," we are told, "aims at a different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." [] Under this mode of analysis, virtually anything the Court deems politically undesirable can be turned into political corruption - by simply describing its effects as politically "corrosive," which is close enough to "corruption" to qualify....
The Court's opinion ultimately rests upon [the] proposition [that] expenditures must "reflect actual public support for the political ideas espoused.@... The limitation is of course entirely irrational. Why is it perfectly all right if advocacy by an individual billionaire is out of proportion with "actual public support" for his positions? There is no explanation....
[T]he Michigan statute... permits corporations to take as many ideological and political positions as they please, so long as they are not "in assistance of, or in opposition to, the nomination or election of a candidate.@... The Michigan law appears to be designed, in other words, neither to protect shareholders, nor even (impermissibly) to "balance" general political debate, but to protect political candidates....
But even if the object of the prohibition could plausibly be portrayed as the protection of shareholders... that would not suffice as a "compelling need" to support this blatant restriction upon core political speech. A person becomes a member of that form of association known as a for-profit corporation in order to pursue economic objectives, i.e., to make money. [I]n joining such an association, the shareholder knows that management may take any action that is ultimately in accord with what the majority (or a specified supermajority) of the shareholders wishes, so long as that action is designed to make a profit. That is the deal. The corporate actions to which the shareholder exposes himself, therefore, include many things that he may find politically or ideologically uncongenial: investment in South Africa, operation of an abortion clinic, publication of a pornographic magazine, or even publication of a newspaper that adopts absurd political views and makes catastrophic political endorsements. His only protections against such assaults upon his ideological commitments are (1) his ability to persuade a majority (or the requisite minority) of his fellow shareholders that the action should not be taken, and ultimately (2) his ability to sell his stock. ...It seems to me entirely fanciful, in other words, to suggest that the Michigan statute makes any significant contribution towards insulating the exclusively profit-motivated shareholder from the rude world of politics and ideology.
But even if that were not fanciful, it would be fanciful to think ... that there is any difference between for-profit and not-for-profit corporations insofar as the need for protection of the individual member's ideological psyche is concerned. Would it be any more upsetting to a shareholder of General Motors that it endorsed the election of Henry Wallace ... than it would be to a member of the American Civil Liberties Union that it endorsed the election of George Wallace? ... Yet in the one case as in the other, the only protection against association-induced trauma is the will of the majority and, in the last analysis, withdrawal from membership.
[The] state interest ... does indeed explain why the State chose to silence "only corporations" rather than wealthy individuals as well. But it does not explain ... why the State chose to silence all corporations, rather than just those that possess great wealth. ... And surely such targeting is possible ... i.e., by limiting the prohibition to independent expenditures above a certain amount, or in some other manner, e.g., by limiting the expenditures of only those corporations with more than a certain amount of net worth or annual profit.
Finally, a few words are in order concerning the Court's approval of the Michigan law's exception for "media corporations". This is all right, we are told, because of "the unique role that the press plays ... But if one believes in the Court's rationale of "compelling state need" to prevent amassed corporate wealth from skewing the political debate, surely that "unique role" of the press does not give Michigan justification for excluding media corporations from coverage, but provides especially strong reason to include them. ...[M]edia corporations not only have vastly greater power to perpetrate the evil of overinforming, they also have vastly greater opportunity. General Motors, after all, will risk a stockholder suit if it makes a political endorsement that is not plausibly tied to its ability to make money for its shareholders. But media corporations make money by making political commentary, including endorsements. For them, unlike any other corporations, the whole world of politics and ideology is fair game. Yet the Court tells us that it is reasonable to exclude media corporations, rather than target them specially. ...
Kennedy J., dissenting (O'Connor and Scalia, concurring)
... As the majority must acknowledge, and as no party contests, the advertisement in this case is a paradigm of political speech. [] ... The Act operates to prohibit information essential to the ability of voters to evaluate candidates....
Far more than the interest of the Chamber is at stake. We confront here society's interest in free and informed discussion on political issues, a discourse vital to the capacity for self-government.... There is little doubt that by silencing advocacy groups that operate in the corporate form and forbidding them to speak on electoral politics, Michigan's law suffers from both of these constitutional defects.
First, the Act prohibits corporations from speaking on a particular subject, the subject of candidate elections. It is a basic precept that the State may not confine speech to certain subjects. Content-based restrictions are the essence of censorial power. ...
Second, the Act discriminates on the basis of the speaker's identity. Under the Michigan law, any person or group other than a corporation may engage in political debate over candidate elections; but corporations, even nonprofit corporations that have unique views of vital importance to the electorate, must remain mute. Our precedents condemn this censorship. ...
The protection afforded core political speech is not diminished because the speaker is a nonprofit corporation. Even in the case of a for-profit corporation, we have upheld the right to speak on ballot issues. ...
By using distinctions based upon both the speech and the speaker, the Act engages in the rawest form of censorship: the State censors what a particular segment of the political community might say with regard to candidates who stand for election....
The regulatory mechanism adopted by the Michigan statute is aimed at reducing the quantity of political speech,... . The First Amendment rests on quite the opposite theory. ...
[W]e rejected the argument that the expenditure of money to increase the quantity of political speech somehow fosters corruption. The key to the majority=s reasoning appears to be that because some corporate speakers are well-supported and can buy press space or broadcast time to express their ideas, government may ban all corporate speech to ensure that it will not dominate political debate. The argument is flawed in at least two respects. First, the statute is overinclusive because it covers all groups which use the corporate form, including all nonprofit corporations. Second, it assumes that the government has a legitimate interest in equalizing the relative influence of speakers. ...
[T]he notion that the government has a legitimate interest in restricting the quantity of speech to equalize the relative influence of speakers on elections, is antithetical to the First Amendment[.]...
That those who can afford to publicize their views may succeed in the political arena as a result does not detract from the fact that they are exercising a First Amendment right.... The suggestion that the government has an interest in shaping the political debate by insulating the electorate from too much exposure to certain views is incompatible with the First Amendment....
The Court's hostility to the corporate form used by the speaker in this case and its assertion that corporate wealth is the evil to be regulated is far too imprecise to justify the most severe restriction on political speech ever sanctioned by this Court. ...
Notes and questions
1. Does the majority decision suggest that any time financial funds can be amassed, restrictions will be considered legitimate? If that is so, are corporations unique in this regard? Is there an equality claim the corporation could have raised in this case?
2. The majority declares that this legislation does not attempt to equalize the relative influence of speakers but instead, insures that expenditures reflect actual public support for the political ideas espoused by the institution. Why should the freedom to express an opinion about the political process depend on whether there is actual public support for that opinion? Such a requirement would leave a speaker vulnerable in those cases where an unpopular opinion was being advanced and did not receive support by the public.
3. The majority opinion expresses concern that a shareholder may not necessarily support the political expenditure made. However, should that not be a matter of internal regulation? Moreover, if corporations have a responsibility to segregate funds, in order to reflect donor-support more accurately, is there any reason why labour unions should not have that same obligation?
4. The Court also draws a distinction between non-profit organizations, which are said to be like "voluntary political associations", and business firms. Is there any basis to the assumption that all those who join a non-profit organization share an ideological goal, but that those who associate in business organizations through the purchase of shares do not?
5. In justifying its conclusion, the Court relies, in part, on the proposition that non member employees cannot be required to contribute to a union's political activities. Does support for the result in Austin depend on agreement with the conclusion that, similarly, employees cannot be required to support the political activities of labour unions, unless those activities are initiated through a segregated fund participated in by those who freely volunteer their support? Branti v. Finkel 445 U.S. 507, 100 S.Ct. 1287
Stevens J.
The question presented is whether the First and Fourteenth Amendments to the Constitution protect an assistant public defender who is satisfactorily performing his job from discharge solely because of his political beliefs. ...
The critical facts can be summarized briefly. The Rockland County Public Defender is appointed by the County Legislature for a term of six years. He in turn appoints nine assistants who serve at his pleasure. The two respondents have served as assistants since their respective appointments in March 1971 and September 1975; they are both Republicans.
Petitioner Branti's predecessor, a Republican, was appointed in 1972 by a Republican-dominated County Legislature. By 1977, control of the legislature had shifted to the Democrats and petitioner, also a Democrat, was appointed to replace the incumbent when his term expired. As soon as petitioner was formally appointed on January 3, 1 978, he began executing termination notices for six of the nine assistants then in office. Respondents were among those who were to be terminated. With one possible exception, the nine who were to be appointed or retained were all Democrats and were all selected by Democratic legislators or Democratic town chairmen on a basis that had been determined by the Democratic caucus.
The District Court found that Finkel and Tabakman had been selected for termination solely because they were Republicans... .
[H]aving concluded that respondents had been discharged solely because of their political beliefs, the District Court held that those discharges would be permissible... only if assistant public defenders are the type of policymaking, confidential employees who may be discharged solely on the basis of their political affiliations. The court concluded that respondents clearly did not fall within that category. ...
In Elrod v. Burns the Court held that the newly elected Democratic Sheriff of Cook County, Ill., had violated the constitutional rights of certain non-civil-service employees by discharging them "because they did not support and were not members of the Democratic Party and had failed to obtain the sponsorship of one of its leaders." []
That holding was supported by two separate opinions. Writing for the plurality, Mr. Justice Brennan identified two separate but interrelated reasons supporting the conclusion that the discharges were prohibited by the First and Fourteenth Amendments. First, he analyzed the impact of a political patronage system on freedom of belief and association. Noting that in order to retain their jobs, the Sheriff's employees were required to pledge their allegiance to the Democratic Party, work for or contribute to the party's candidates, or obtain a Democratic sponsor, he concluded that the inevitable tendency of such a system was to coerce employees into compromising their true beliefs. That conclusion, in his opinion, brought the practice within the rule of cases like Board of Education v. Barnette, [] condemning the use of governmental power to prescribe what the citizenry must accept as orthodox opinion.
Second, apart from the potential impact of patronage dismissals on the formation and expression of opinion, Mr. Justice Brennan also stated that the practice had the effect of imposing an unconstitutional condition on the receipt of a public benefit and therefore came within the rule of cases like Perry v. Sindermann, [] In support of the holding in Perry that even an employee with no contractual right to retain his job cannot be dismissed for engaging in constitutionally protected speech, the Court had stated:
Mr. Justice Stewart's opinion concurring in the judgment avoided comment on the first branch of Mr. Justice Brennan's analysis, but expressly relied on the same passage from Perry v. Sindermann that is quoted above.
Petitioner argues that Elrod v. Burns should be read to prohibit only dismissals resulting from an employee's failure to capitulate to political coercion. Thus, he argues that, so long as an employee is not asked to change his political affiliation or to contribute to or work for the party's candidates, he may be dismissed with impunity--even though he would not have been dismissed if he had had the proper political sponsorship and even though the sole reason for dismissing him was to replace him with a person who did have such sponsorship. Such an interpretation would surely emasculate the principles set forth in Elrod. While it would perhaps eliminate the more blatant forms of coercion described in Elrod, it would not eliminate the coercion of belief that necessarily flows from the knowledge that one must have a sponsor in the dominant party in order to retain one's job. More importantly, petitioner's interpretation would require the Court to repudiate entirely the conclusion of both Mr. Justice Brennan and Mr. Justice Stewart that the First Amendment prohibits the dismissal of a public employee solely because of his private political beliefs.
In sum, there is no requirement that dismissed employees prove that they, or other employees, have been coerced into changing, either actually or ostensibly, their political allegiance. To prevail in this type of an action, it was sufficient, as Elrod holds, for respondents to prove that they were discharged "solely for the reason that they were not affiliated with or sponsored by the Democratic Party." []
Both opinions in Elrod recognize that party affiliation may be an acceptable requirement for some types of government employment. Thus, if an employee's private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State's vital interest in maintaining governmental effectiveness and efficiency. [] In Elrod, it was clear that the duties of the employees--the chief deputy of the process division of the sheriff's office, a process server and another employee in that office, and a bailiff and security guard at the Juvenile Court of Cook County--were not of that character, for they were, as Mr. Justice Stewart stated, "non-policymaking, nonconfidential" employees. []
As Mr. Justice Brennan noted in Elrod, it is not always easy to determine whether a position is one in which political affiliation is a legitimate factor to be considered. [] Under some circumstances, a position may be appropriately considered political even though it is neither confidential nor policymaking in character. As one obvious example, if a State's election laws require that precincts be supervised by two election judges of different parties, a Republican judge could be legitimately discharged solely for changing his party registration. That conclusion would not depend on any finding that the job involved participation in policy decisions or access to confidential information.
Rather, it would simply rest on the fact that party membership was essential to the discharge of the employee's governmental responsibilities.
It is equally clear that party affiliation is not necessarily relevant to every policymaking or confidential position. The coach of a state university's football team formulates policy, but no one could seriously claim that Republicans make better coaches than Democrats, or vice versa, no matter which party is in control of the state government. On the other hand, it is equally clear that the Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments. In sum, the ultimate inquiry is not whether the label "policymaker" or "confidential" fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.
Having thus framed the issue, it is manifest that the continued employment of an assistant public defender cannot properly be conditioned upon his allegiance to the political party in control of the county government. The primary, if not the only, responsibility of an assistant public defender is to represent individual citizens in controversy with the State. ...
Thus, whatever policymaking occurs in the public defender's office must relate to the needs of individual clients and not to any partisan political interests. Similarly, although an assistant is bound to obtain access to confidential information arising out of various attorney-client relationships, that information has no bearing whatsoever on partisan political concerns. Under these circumstances, it would undermine, rather than promote, the effective performance of an assistant public defender's office to make his tenure dependent on his allegiance to the dominant political party. ... Affirmed.
Powell J. (dissenting)
The Court today continues the evisceration of patronage practices begun in Elrod v. Burns []. With scarcely a glance at almost 200 years of American political tradition, the Court further limits the relevance of political affiliation to the selection and retention of public employees. Many public positions previously filled on the basis of membership in national political parties now must be staffed in accordance with a constitutionalized civil service standard that will affect the employment practices of federal, state, and local governments. Governmental hiring practices long thought to be a matter of legislative and executive discretion now will be subjected to judicial oversight. ...
The Court errs not only in its selection of a standard, but also more fundamentally in its conclusion that the First Amendment prohibits the use of membership in a national political party as a criterion for the dismissal of public employees. ...
The constitutionality of appointing or dismissing public employees on the basis of political affiliation depends upon the governmental interests served by patronage. No constitutional violation exists if patronage practices further sufficiently important interests to justify tangential burdening of First Amendment rights. ...
Patronage appointments help build stable political parties by offering rewards to persons who assume the tasks necessary to the continued functioning of political organizations. ... The benefits of patronage to a political organization do not derive merely from filling policymaking positions on the basis of political affiliation. Many, if not most, of the jobs filled by patronage at the local level may not involve policymaking functions. The use of patronage to fill such positions builds party loyalty and avoids "splintered parties and unrestrained factionalism [that might] do significant damage to the fabric of government."
Until today, I would have believed that the importance of political parties was self-evident. Political parties, dependent in many ways upon patronage, serve a variety of substantial governmental interests. A party organization allows political candidates to muster donations of time and money necessary to capture the attention of the electorate. ...
Strong political parties also aid effective governance after election campaigns end. Elected officials depend upon appointees who hold similar views to carry out their policies and administer their programs. Patronage--the right to select key personnel and to reward the party "faithful"--serves the public interest by facilitating the implementation of policies endorsed by the electorate. The Court's opinion casts a shadow over this time-honored element of our system. It appears to recognize that the implementation of policy is a legitimate goal of the patronage system and that some, but not all, policymaking employees may be replaced on the basis of their political affiliation. [] But the Court does not recognize that the implementation of policy often depends upon the cooperation of public employees who do not hold policymaking posts. As one commentator has written: "What the Court forgets is that, if government is to work, policy implementation is just as important as policymaking. No matter how wise the chief, he has to have the right Indians to transform his ideas into action, to get the job done." [] The growth of the civil service system already has limited the ability of elected politicians to effect political change. Public employees immune to public pressure "can resist changes in policy without suffering either the loss of their jobs or a cut in their salary." [] Such effects are proper when they follow from legislative or executive decisions to withhold some jobs from the patronage system. But the Court ... imposes unnecessary constraints upon the ability of responsible officials to govern effectively and to carry out new policies.
Although the Executive and Legislative Branches of Government are independent as a matter of constitutional law, effective government is impossible unless the two Branches cooperate to make and enforce laws. Over the decades of our national history, political parties have furthered--if not assured--a measure of cooperation between the Executive and Legislative Branches. A strong party allows an elected executive to implement his programs and policies by working with legislators of the same political organization. But legislators who owe little to their party tend to act independently of its leadership. The result is a dispersion of political influence that may inhibit a political party from enacting its programs into law. The failure to sustain party discipline, at least at the national level, has been traced to the inability of successful political parties to offer patronage positions to their members or to the supporters of elected officials.
The breakdown of party discipline that handicaps elected officials also limits the ability of the electorate to choose wisely among candidates. Voters with little information about individuals seeking office traditionally have relied upon party affiliation as a guide to choosing among candidates. With the decline in party stability, voters are less able to blame or credit a party for the performance of its elected officials. Our national party system is predicated upon the assumption that political parties sponsor, and are responsible for, the performance of the persons they nominate for office.
In sum, the effect of the Court's decision will be to decrease the accountability and denigrate the role of our national political parties. This decision comes at a time when an increasing number of observers question whether our national political parties can continue to operate effectively. Broad-based political parties supply an essential coherence and flexibility to the American political scene. They serve as coalitions of different interest that combine to seek national goals. The decline of party strength inevitably will enhance the influence of special interest groups whose only concern all too often is how a political candidate votes on a single issue. The quality of political debate, and indeed the capacity of government to function in the national interest, suffer when candidates and officeholders are forced to be more responsive to the narrow concerns of unrepresentative special interest groups than to overarching issues of domestic and foreign policy. The Court ignores the substantial governmental interests served by reasonable patronage. In my view, its decision will seriously hamper the functioning of stable political parties. |
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