The Good the Bad and the Ugly: What’s Really in the Fair Elections Act

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Bill C-23 got off to a rocky start.  Elections Canada CEO Marc Maynard denied claims that he had been consulted in the process.  Debate was limited.  The ‘Fair Elections Act’ spin was soon tarnished by a popular nickname that added the prefix ‘Un’ to the first word.  Questions around its constitutional validity were raised.  Critics emerged, not just on the benches of the Official Opposition, but from all parties, and even Tories at other levels of government.

Despite all the controversy, Canadians hardly seem aware that the proposed legislation even exists.  This, despite the fact that it’s poised to fundamentally transform the democratic legitimacy of the upcoming 2015 election; that statement is promoted, in one way or another, on both sides of the debate.

Only one in five Canadians are at least ‘fairly’ familiar with the bill.  Clearly, there’s some confusion at play.  That really shouldn’t come as a surprise, though, given the way Bill C-23 throws together a veritable smorgasbord of semi-related policy changes to address a questionable problem (one for which the sole ‘evidence’ seems to be a paper authored by someone who insists it doesn’t warrant the changes proposed).  It’s enough to bring nausea to anyone who’s already-leery of the Conservatives’ motives when it comes to so-called ‘democratic reform’.

Understanding the Fair Elections Act can be a handful, but it’s well worth getting familiar with for anyone who values the idea of Canadian democracy.  In the name of that pursuit, let’s recap what politicians and the media alike have highlighted as the most fundamental provisions of 2014’s most controversial Canadian Act.

Vouching is Gone.  Vouching is the process whereby folks without adequate ID can have someone they know come with them to a polling station to bear witness to their stated identification and agree that it is true and valid.

Why it Matters:  Traditionally, this option has proven helpful for youth, older seniors, first nations, and people living in poverty or without homes; since most ID requires a fixed address, vouching is a way to extend the reaches of democratic representation.

What’s Changing:  The Conservatives say that a significant number of irregularities have emerged in recent elections from participants who have used vouching, and suggest that removing vouching will make elections more sound and secure.  However, it’s important to note that the bulk of those irregularities are, in fact, basic administrative errors; there’s no evidence of worrisome false ID numbers, much less malicious voter fraud.  The narrative set forth by the Conservatives isn’t indicative of any reports or concerns put forth by Elections Canada, which has promoted considerably less drastic changes for combatting the relatively minor issues associated with vouching.  Critics suggest that eradicating vouching options will benefit the Conservatives in future elections, since demographics that exercise the option typically vote for more progressive parties.

Voter ID Cards are No Longer Enough.  Instead of obtaining a ballot with a Voter ID Card, as evidence of past verification of their eligibility to vote, citizens will have to provide other forms of ID if the Fair Elections Passes (with or without a Voter ID Card in-hand).

Why it Matters:  Voter ID Cards (aka Voter Information Cards) enable many people with less conventional ID to bypass the usual hoops that they would otherwise have to jump through every election (sometimes an impossible task under the circumstance).  Under the Fair Elections Act, that won’t be the case.  This is another piece of the Fair Elections Act that constitutes voter suppression, according to critics.

What’s Changing:  Right now a voter can get a ballot by presenting the ‘Voter ID Card’ mailed by Elections Canada to their place of residence.  Citizens who are in the Elections Canada database by voting previously – or opting in through tax submissions and other federal forms that validate their identity – get one Voter ID Card each. One Card equals one ballot.  It’s a pretty simple system, but the Conservatives say it’s a risk to the integrity of our elections.  Consequently, the Fair Elections Act will essentially reduce Voter ID Cards to mere reminders of where to vote (or at best, one of multiple pieces of ID as possible proof of an electors address).  If it passes, Canadians will have to provide full ID at the polls, with or without a voter card.  Opposition parties maintain there’s no evidence to back up the assumption that Voter ID Cards are enabling fraudulent activity.  Conservative MP Brad Butt – who sits on the committee that is reviewing the Fair Elections Act – recently had to backtrack after providing an example of Voter ID fraud he’d supposedly witnessed but hadn’t.

Elections Canada Can’t Promote Voting.

Why it Matters:  Voter turnout isn’t exactly stellar in Canada, especially among young people, roughly 60% of whom didn’t vote in 2011.  Elections Canada has fought against this decline with programs like StudentVote mock elections, educational videos, web content and promotional programs.  Pierre Poilievre says these efforts aren’t working, but only time will tell how much further participation rates could fall without them.  As Elizabeth May says, “in Canada, our problem isn’t with people voting more than once, it’s people voting less than once.”

What’s Changing:  The Fair Elections Act strips from chief electoral officer the authority to educate and inform members of the public about their democratic right to vote, and removes from Election Canada’s mandate the goal of making “the electoral process better known to the public, particularly to those…most likely to experience difficulties in exercising their democratic rights.”  Elections Canada can still provide information on the rules of voting and running in federal elections…it’s just not allowed to try and make them ‘better known’.  Even Preston Manning, who calls the legislation “a commendable democratic initiative,” is critical of this element of Bill C-23.  Pierre Poilievre’s justification for the changes is that Elections Canada has failed to inform people about polling locations and hours, let alone the fundamentals of the broader democratic process.  In his mind, political parties are responsible for that.  Why Poilievre views this as justification for disallowing Elections Canada to take the lead on get-out-the-vote campaigns is unclear.

Partisan Incumbents Will Hand-Pick Polling Supervisors.  The Fair Elections Act stipulates that incumbent candidates – not Elections Canada-hired returning officers – will select central polling supervisors.

Why it Matters:  Supervisors, of course, are supposed to be subjective regulators of due process.  If they’re selected by candidates or parties, it raises serious questions about the integrity of the system.  BC’s former chief electoral officer Harry Neufeld believes “it’s completely inappropriate in a democracy.”

What’s Changing:  Technically, the returning officer can still refuse an appointee, but the normal procedure under the Fair Elections Act will be for appointees to be made by the incumbent candidate in the riding of the polling station, not the returning officer.  What’s more, if the incumbent doesn’t make a selection, that responsibility will be passed on to their party under Bill C-23.

Commissioners are Moving Out of Elections Canada.  The Commissioner of Canda Elections could be described as the independent watchdog of our democratic process, or, as the Poilievre puts it, the ‘referee’.

Why it Matters:  The person who holds this position is responsible for overseeing investigations into party and voter fraud alike, including recent examples like the Robocoll Scandal and the alleged overspending and false filings of Conservative MP Dean Del Mastro.

What’s Changing:  The Fair Elections Act aims to make future commissioners employees of the Office of the Director of Public Prosecutors instead of Elections Canada investigation leads.  Currently, commissioners are selected through an independent hiring process, but they will essentially become government appointees: critics say this, too, has the potential to erode objectivity and accountability.  The NDP suggests it would be preferable for the Commissioner to set up shop in a new, independent law enforcement agency instead.  The amount that the commissioner will be empowered – or even allowed – to communicate with Elections Canada is unclear.  More worrisome is the fact that the Commissioner will get no new investigative powers, despite repeated calls to extend their reach.  Commissioner Yves Cote largely pointed to his inability to compel staunchly uncooperative Conservative Party witnesses in the Robocall scandal for the lack of significant progress on that case (so far, only staffer Michael Sona – who maintains his innocence – has been charged).  According to Chief Electoral Officer Marc Maynard, the issue here isn’t so much what is changing as what isn’t.

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Parties Will be Empowered to Access Voters’ Personal Information.  The Fair Elections Act proposes that parties should receive a copy of all Elections Canada statements of voters, and that party representatives should be allowed to examine individual voters’ ID.

Why it Matters:  Imagine after lining up outside a polling station, checking in with a volunteer and providing the required ID, one or two or three or more partisan representatives ask to scrutinize your ID further before you’re allowed to vote.  Now imagine knowing that after you vote, every party will receive a statement alerting them to your status as an active voter.  Both of these scenarios will become reality under the Fair Elections Act, raising concerns over privacy, efficiency and the potential for partisan abuse.

What’s Changing:  Parties can already learn who has voted through shared access to information, but the Fair Elections Act will expand this ability, in the words of Elections Canada itself, “beyond the operational purpose related to voting on polling day.”  Many opponents of the amendments suspect that the real motivation for collecting the data is to use in data tracking or even fundraising efforts.  And in case the prospect of becoming the target of future unsolicited requests isn’t enough to turn people off voting, there’s the niggling detail that federal parties aren’t subject to privacy laws, raising serious questions about what would happen to voters whose info was improperly compromised.

Spending Limit is Up.  Campaign spending is restricted by national and local limits.  The Fair Elections Act will bump up the top end.

Why it Matters:  Limits are designed to ensure a certain degree of equality and fair competition between parties.

What’s Changing:  A five percent hike would be applied to the general limit, meaning a total national campaign limit of about $22 million per party in 2015.  Not chump change, but it’s also lower than comparable limits in some other Western countries.  The usual argument is that this change will benefit the Conservatives, although it’s one of the least-contested elements of Bill C-23.

Donation Limit is also Up.  Spending is also limited by annual contribution caps on individual donors.  Both of these would change significantly with the Fair Elections Act.

Why it Matters:  The ability for more affluent donors to have a greater impact on elections than their less-wealthy peers is one of the most fundamental and immortal controversies of modern democracy.

What’s Changing:  The annual contribution limit for any individual to donate to any federal party or candidate is now $1,500 per year, up from $1,200. Opposition parties claim that the changes will benefit the Conservatives since their voter base is traditionally more wealthy. The Conservatives have traditionally pulled in more money-per-donor than competing parties, but they have also had a significantly larger base of overall donors. Independent MPs are disappointed that the act doesn’t address longstanding inequalities for candidates with no party affiliation. Independents can only fundraise during an election, unlike members of a registered party who can contribute to party coffers throughout the year and take the cash back when the next election begins.

Candidate Contribution Limits Are Up, Too.  The amounts that candidates can spend on their own campaigns is already different than general donation limits, and these caps will be drastically altered if the Fair Elections Act is approved.

Why it Matters:  As junior NDP member Pierre-Luc Dusseault points out, the general trend is lowering – not raising – the direct contribution limits for candidates, to “minimize the chances that candidates and political parties will be influenced.”  This is just one more way that (relatively) big money will have an even larger bearing on the potential success of any given campaign.

What’s Changing:  A $2,200 annual contribution limit currently applies to candidates contributing to their own general election campaigns.  The Fair Elections Act will more than double that to $5,000.  Leadership candidates will get a boost of potential spending of more than 11 times the previous allowance, to a massive $25,000.

Fundraising Limit is Gone:  Currently, there is no exception in the general spending limit for money spent fundraising.  That will all change if the Fair Elections Act is passed.

Why it Matters:  The amount spent on fundraising is not insignificant, depending which party you ask (see below).  This change will have a much greater effect on the overall spending limit than the 5% hike noted above.

What’s Changing:  Simply put, fundraising expenses aimed at soliciting donations from individuals who have previously donated $20 or more, won’t count towards the existing spending limits.  There seems to be little justification for this, but reactions are mixed.  Even Jean-Pierre Kingsley, the former chief electoral officer who endorsed the Fair Elections Act with an ‘A-’, says he doesn’t think it’s a good idea.  How big an effect would it have on overall spending opportunities?  Oddly the NDP and Liberal Party both report $2 million or more for fundraising, whereas the Conservatives seemingly draw in up to double the donations with just a fraction of the cost, reporting a mere $74,000 for the cause in the 2011.  Opposition parties suspect the Conservatives are absorbing these expenses under other ledgers; presumably, if the Fair Elections Act passes, any party would benefit from doing the opposite.  The amount of fluidity with which expenses can apparently be claimed for any given purpose makes this concerning, although Pierre Poilievre reassures us the rules are crystal clear.

Leadership Loans are Extended.  Donors can only give once to any given leadership race – a lifetime limit of $1,200.  That won’t change, but extended loan repayment periods would make it feasible for prospective leaders to solicit more funds from the same donors.

Why it Matters:  This could effect controversial party rules that require certain fundraising caps for leadership candidates.  It will also enable unsuccessful leadership hopefuls to run multiple times, given a wealthy enough supporter base.  Debatably, it’s just one more way that financial heavyweights will have greater control, not just in general elections, but also within federal parties.

What’s Changing:  By most accounts, prospective party leaders really only get one shot at commandeering a party as far as financial support is concerned, and finances are often the biggest single barrier to entry.  This ‘one shot’ tradition is maintained – deliberately or otherwise – through a donation rule that means leadership hopefuls can only solicit sizable (up to $1,200) donations from any given donor once, and loans are limited to 18 months before repayment.  Generally, supporters for any given leadership candidate don’t change from term to term, so the existing rules help make repeat runs for party leadership an extreme rarity.  The Fair Elections Act will extend loan repayments to three years.  The legislation also restricts lenders to accredited banks and political parties based on market interest rates.

Auditing is ‘Tougher’, but still Won’t be Conducted by Elections Canada:  Changes in the Fair Elections Act reportedly aim to increase the potential effectiveness of audits.

Why it Matters:  Audits and penalties are a critical piece of ensuring equality, transparency and accountability among parties.

What’s Changing:  Generally, audits into campaign financing are only conducted if the initial filings appear suspect.  The new legislation will make including compliance audits a new responsibility of the external auditor for every party.  Parties wouldn’t be eligible for any reimbursement until an audit was provided.  The Fair Elections Act will also introduce ‘tougher’ penalties for overspending, with sliding-scale financial penalties that top out at $4 on the loonie for every $1 spent over 12.5% above the limit.  Opposition parties claim these changes are merely aimed to sidetrack the underlying concerns made by Elections Canada.  Contrary to its suggestions, Elections Canada will still have no power to demand the actual receipts and accounting papers that the audits will be based on, ensuring their oversight remains arguably useless.

Amid the mess of controversial changes with questionable motives, there are a few, relatively-straightforward adjustments to the Elections Act that Bill C-23 would implement.  These changes are – for the most part – as much token as they are sensible.

– Maximum fines – should they ever be exercised – increase 10-fold, to up to $50,000 for the most serious election financing offenses.  Fines increase to a maximum of $100,000 for corporations that fail to register as third parties.
– Voter contact calling services used must be disclosed in candidate returns.
– Transcripts must be recorded for communications made to voters about polling locations.
– An extra day of advance polling means there will be four consecutive days of advance voting more than a week before general election day.
– Impersonating a candidate becomes a recognized offense.
– The Commissioner will be appointed for a set seven-year term.

Of course, there’s much more in Bill C-23.  Weeks after its introduction, new revelations about the Act’s implications on campaigning, fundraising, democratic education and voting process continue to emerge in the media.  In the meantime, you can read the full bill.  That is, if you’ve got the stomach for it.

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Other columns by Joseph Boutilier

New Critic title is fitting for MP Hyer’s fee and dividend ambitions
Canada Post: A Contrived Controversy

Follow Joseph Boutilier on twitter: @josephboutilier

 

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