The relevant bits of the Canada Elections Act are simple enough: If you want to advertise during an election period and spend more than CA$500 on an issue associated with a candidate or party, you must register as a third party and follow the rules. These rules include assigning a financial agent, tracking and reporting spending, and staying within spending limits. The requirements make sense in principle; they are necessary to prevent the corrosive influence of money from becoming a threat to democracy. But the law leaves room for confusion over which issues are “election issues.”
On a recent episode of the Canadian Broadcasting Corp.'s “Front Burner” podcast, Election Canada spokeswoman Natasha Gauthier defined an election issue as “any issue of any nature that is associated with a candidate or a party.” If that seems like a broad definition, that’s because it is. As Gauthier says, “If a candidate or a party makes it an issue, it’s an issue” and “the act is agnostic on the substance of the issue.”
The provision is old. It’s been around for 20 years, says Gauthier. So, what has changed now? The evolution and growth of third parties in the digital age certainly play a role in the newfound attention to third-party registration provisions. But the central concern today is the issue — climate change — the law is being applied to, at least as a possible target.
Climate change is the single most significant threat to humankind in history. It’s a collective action problem bound up in ways of living, power, money and priorities. It has long been political. But what makes it political in a way that concerns Elections Canada? Maxime Bernier, the leader of the upstart People’s Party of Canada — currently polling around 3 percent — denies that climate change is an urgent threat. (To his credit, he also opposes the provisions of the law that limit speech.) His stance on climate policy has pushed the matter into the political sphere in a way that has triggered what seems to be an abundance of caution from Elections Canada.
In the context of the 2019 election, because parties disagree about the threat of climate change, ads supporting climate policy during the writ period might be reasonably understood to support a candidate or party. The question is, where’s the line? If you run an ad that says “Save the climate!” does it count as an issue ad?
Elections Canada says it will evaluate each on a case-by-case basis, but hasn’t provided a comprehensive guide for determining what is and isn’t an issue. This leaves individuals and organizations in an awkward position. Katie Gibbs, the executive director of the pro-science organization Evidence for Democracy points out on “Front Burner” that the whole matter is confusing and unpredictable. The registration and reporting rules are onerous and potentially costly for many, especially individuals and small organizations, she notes. She worries this will have a chilling effect on advertising during the election — and, thus, by relation, on climate advocacy.
Elections come and go, but climate change is not going anywhere anytime soon. Are climate advocacy organizations meant to close up the ad shop, roll the dice or take on an added burden during an election on the chance that they might be in violation of election law otherwise? Are all advocacy organizations meant to?
This episode has revealed both a tension in the law between broad and specific issue advertising, and a deeper struggle between facts and politics, between power and a lack of it. It shows how politicians have extraordinary power not only to manipulate citizens with their statements, but also to effectively silence some advocates during the writ period by raising and politicizing issues, thus triggering registration requirements.
So what is to be done? We must now either rely on candidates and parties to practice discretion and forbearance while campaigning — which is not likely — or Parliament must clarify when and how this rule applies, laying out more clearly when something is to be considered a political issue for the purposes of election law. Unfortunately, it’s probably too late for that for the next election, which is just weeks away. But the matter can and ought to be addressed early on in the next Parliament so that we can stop worrying about whether climate change is an issue covered by the Canada Elections Act and focus instead on addressing it as the existential threat to humankind that it is.