The Canadian election gag law

Non-sports post.

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Canada votes in a federal election on Monday. But it's not a free election, as Americans would see it. That's because of our election "gag law."

The law prevents any individual or organization from advertising meaningfully during an election. Not just advertising for a political party, or advocating who to vote for, but even on any issue that might be associated with any party or candidate. And even if the ad doesn't even mention a party or candidate.

Effectively, during an election, only the political parties get to speak.

(I say "effectively" because a token amount of advertising is allowed. A "third party" can spend $3,765 per riding (district), or $188,250 overall. Needless to say, it's hard to make much of a splash for that amount of money, when the parties have millions.)

In the debate about the gag law that's been going back and forth over the last few years, the public sentiment seems to be that they don't want special interest groups "buying votes." But that's wrong. You're not "buying" votes with advertising. The only way to turn money into votes is to convince voters that your position is correct.

There's no guarantee that will work, especially if your position *isn't* correct. But, let's consider a case where it *does* work. Let's suppose group X spends millions of dollars trying to convince the public to support legislation in its favor, and, after the advertising is done, more people support X than before.

Is that a bad thing? Is that "unfair"?

No, of course not. It's a good thing. Before the advertising, the public was obviously ignorant of the issue. Now hearing X's argument, they're saying, "hey, you know, they've got a point."

That's what a free society is all about, isn't it, being allowed to air your views and grievances and trying to change people's minds? If you feel that it's somehow unfair that X was able to turn support in its favor, aren't you really saying that it's better off if the public remains ignorant?

Or maybe your position is that there should be a "level playing field," that if X gets to spend money, and the anti-X group doesn't have money, the public doesn't get to hear both sides. But that's the opposite of what happens in practice. If X advertises, and X has a controversial position, then that starts a debate. The press reports on it, the parties are asked to comment on it, there are letters to the editor, and editorials in the paper. The money X spends actually *creates* a level playing field. If X doesn't spend, the issue never comes up, the debate never starts, and nothing ever changes. THAT is the unlevel playing field, where the status quo gets 100% of the voters' attention, and the views of the minority get zero.

And, besides, there's NEVER a "level playing field," in terms of equal number of words on both sides. It's never the case that one side gets exactly the same money and attention as the other. Where I live, I've seen ads that advise you to wear a helmet when you ride your bike. I've never seen an ad that tells you, hey, don't bother, the risk is pretty low and not worth the hassle. There are commercials telling you to buy American to create jobs for American manufacturing workers, but no commercials asking you to buy foreign to create jobs for American farmers. There are lots of anti-marijuana ads on TV, but no pro-marijuana ads. There are anti-bullying ads, but no pro-bullying ads.

You will almost never find a 50/50 split. But, often, you'll find a 100/0 split. Why aren't their cries of injustice about that?

The truth is, people never want restrictions on speech when they agree with the speakers. If you think a law is unjust and the status quo is evil and immoral, you want to protest, and advertise, and advocate, and scream from the rooftops. If you think the law is fine, and those who oppose it are evil and immoral, that's when it suddenly seems NOT FAIR that they get to propagandize and falsely persuade unsophisticated voters just for their own selfish interests.

We think it's OK for the anti-bullying lobby to "buy" public perception with their advertising, because, in this case, we agree with the message, and we *like* the anti-bullying lobby. On the other hand, who's going to spend money during elections? People we *don't* like. Evil corporations. Shady special interest groups. Rich people.

But the whole point of freedom of speech is that *everyone* has the right to speak, not just people we happen to agree with. This "buying votes" and "level playing field stuff" is just an excuse.

I think that kind of censorship is wrong. But, hey, maybe it's *me* who's wrong. Maybe it IS perfectly legitimate to censor the public during elections, and allow only the politicians to decide what gets said and what doesn't. In fact, most people think it's me that's wrong. The Supreme Court of Canada things I'm wrong. They upheld the gag law. They decided that it's OK for the NDP (Canada's main left-wing party) to spend tons of money advertising that banks and oil companies should be taxed more, but it's OK to legally prohibit those banks and oil companies to advertise in rebuttal. They think it's OK for Canadians to hear only one side of the debate.

Of course, the learned members of the Supreme Court are a lot smarter than I am. They're so smart that they know what the truth is already, even if they only hear one side of the argument. I'm just a normal guy, who needs to hear both sides.

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Anyway, there are so many arguments for scrapping the gag law that I don't even know where to start. I sat down at my computer to start listing a few, and within half an hour, I had maybe fifty of them. You could probably add fifty more. Sorry to bore you; feel free to stop reading any time.

Even better, check out Gerry Nichols on the gag law; some of my arguments were inspired by his.

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1. A few years ago, the Liberal (left-centre) government passed a law that the political parties would get funding from the government. Each party would get $2 for every vote they received in the last election.

But, that means that the parties that did well would be able to spend more money than the parties that did worse! Isn't that just as unlevel a playing field? Is it really fair that the environmentalist Green Party gets to speak only 20% as much as the Conservative party? Does money buy votes, or doesn't it? If it does, aren't you just handing votes to some parties at the expense of others?

2. Also, the (left-wing) NDP gets less money than the (right-centre) Conservatives, because they got fewer votes. Now, if the unions were allowed to advertise on behalf of the NDP, that would simply make the NDP and Conservatives *more equal* in their advertising budget. By the logic of the "level playing field", wouldn't that be a good thing?

3. What's "fair"? If party X gets more votes than party Y because it has a pretty color and a charismatic leader and the public knows little about the issues, the gag law considers that fair. But if party Y gets more votes than party X because two corporations and a union and a social justice think tank fought it out with duelling TV ads ... that's somehow not fair?

4. If money buys votes, is that because Canadians are so stupid they knee-jerk vote for whatever they hear? Do voters watch oil company ads, and they believe what they hear unskeptically? I doubt it. But even if that's true, won't they also fall for *politicians'* propaganda?

5. Often, all three major parties agree on an issue, either explicitly or implicitly. For instance, in 1984, all three parties in Ontario agreed on public funding for Catholic high schools. That meant that Catholics would have their kids' education paid for by taxes, while (for instance) Jews and Muslims would have to pay out of pocket (in addition to their taxes). That seems obviously unfair, right? And, indeed, there was a huge public outcry. But, if this happened as Federal policy today, it would be *illegal* for opponents of this discriminatory policy to advertise enough to make it a big campaign issue. And, since all three parties agreed on the policy, almost 100 percent of advertising would be in favor. That's a level playing field?

6. There are issues that all three parties want to bury. Abortion is the biggest one. Even the Conservative party, which attracts a lot of religious right-wing support, doesn't want to talk about it. When asked, I've heard Stephen Harper (the current Conservative prime minister) say, uncomfortably, that he has no intention of reopening the debate or legislating on it (there has been no new abortion law since the Supreme Court struck down the old one in 1988).

The other major parties are the same -- nobody wants to bring it up, because they can only lose votes by doing so. Doesn't that make it *more* important to allow "third parties" to bring it up? Even if you're pro-choice (as I am) and like the law the way it is, is it really fair for Canada to prohibit others from bringing it up just because the leaders, and most of their voters, prefer not to have to address it?

7. If that argument doesn't resonate with you, because you're pro-choice, imagine the reverse. Imagine that abortion was completely illegal, but none of the leaders wanted to talk about it, and the majority of Canadians agreed that it should be illegal. Is it really fair for the government to censor Planned Parenthood's ads during the election? Is it really a good idea that womens' groups aren't allowed to buy newspaper space demanding their rights?

8. If all three parties want to discriminate against gays, it's illegal for gays to respond. If all three parties want to fire all the teachers, it's illegal for the teachers to respond. If all three parties want to enact a poll tax, it's illegal for anyone to respond. How is that good for democracy?

9. Right now, even if I agree with Stephen Harper (say) on issue X, I have to let him speak for X his way. Is it really democracy when I can't express the issue myself, but have to let Stephen Harper do it for me, in a way that's inferior? Filtering opinions through a political party is like filtering single-malt scotch through his kidneys -- what comes out bears little resemblance to what went in.

10. In general, it's the fringe views that benefit the most by being heard. The gag law effectively eliminates any out-of-the-mainstream views. And many, many views commonly held today were once out of the mainstream.

11. The gag law applies only during elections. But isn't that the time when it's *most* important for people to be able to speak? Often, it's the only time their fellow citizens are listening!

12. Many voters complain about "attack ads" that don't meaningfully discuss issues. But "third parties" are usually about a specific issue. Allowing free speech will actually improve the substance of the debate.

13. If you let people advertise, and you force them to identify themselves in their advertising, that brings the lobbyists out into the open. Isn't that a good thing?

14. There is a general public belief that corporations shouldn't be able to advertise. But why not? They're regulated by government. They pay taxes. Some of them may indeed be treated unfairly. Why shouldn't they be able to speak up?

15. If a candidate proposes some unfair law against corporation X, who does it affect? Not the executives personally; they go on with their jobs and keep collecting their salaries. It's the shareholders who lose. Sometimes there are thousands of shareholders, many of whom are not that well-off, and who may be counting on the corporation's profits to fund their retirement or their children's education. It's virtually impossible for those thousands of people to form a lobby group. Shouldn't it be legal for the corporation itself to advocate for the interests of those shareholders?

16. And what about the customers? They're often the biggest losers. Suppose you're a big fan of Apple, and you're saving up to buy an iPhone. A candidate declares that if he's elected, iPhones will be banned, in order to benefit RIM, the Canadian company who makes the rival Blackberry.

Stupid law, right? But we, the public, are the biggest losers, even bigger than Apple's shareholders; the benefit we get from iPhones dwarfs the small profit Apple makes off them. So, if Apple protests that law, aren't they acting in the interests of their customers as much as their shareholders? And isn't Apple the best placed entity to advocate for those customers?

17. Corporations are seen as selfish and self-interested. But politicians are too. And that's worse, because politicians can pass laws to benefit themselves. To take just one example: elected members of parliament legislated themselves gold-plated pensions, that kick in after only six years in office. Occasionally a bit of controversy about that will resurface. But, nobody can complain about it during elections, which is when it really matters! In this case, the gag law is in the interests of nobody except the politicians themselves.

18. Generally, it costs a lot of money and publicity to change peoples' minds, whether about race, gay rights, global warming, or -- signficantly -- which candidate to elect. As a result, incumbents win a vast majority of seats, by inertia. The gag law thus confers a huge benefit on the politicians who enacted it, making it that much harder for opponents to convince voters to try someone new. Indeed, the gag law benefits any politician who is ever elected, serving to help protect him or her from losing power.

19. If, in 1981, IBM had been allowed to pass a gag law on Apple, would the world be better or worse today?

20. Not all views are equal. Suppose the government proposes a racist law. Immediately, billions of dollars are raised to oppose it. Only thousands of dollars are raised in favor of it. Is that really bad? Is it really more important to have a "level playing field" between racists and non-racists, that the non-racists shouldn't be allowed to advertise?

21. As it stands now, if you donate money to a political party, you get 75% of it back as a tax credit. If you donate money to a group opposing a government policy, you get 0% of it back as a tax credit. So it takes four times as much money to oppose government policy than to support it. So, if you really want a level playing field, shouldn't third parties be allowed to spend *four times as much* as politicians?

22. Mainstream media are not included in the gag law. So a newspaper, for instance, can editorialize in favor of a certain policy or party, and that goes out, legally, to thousands and thousands of readers on their doorsteps in the morning. Effectively, if you're a rich corporation that owns a newspaper, you get to "advertise." If you're a rich corporation that doesn't, it's illegal.

23. As Gerry Nichols has pointed out, citizens are not "third parties". Citizens are "first parties." It's politicians that are second and third parties, as elected representatives only under the citizens' consent. The right of citizens to speak is MORE important than the rights of politicians to speak, not less.

24. As I mentioned earlier, every taxpayer gives $2, with or without his/her consent, to the party he/she voted for. (BTW, doesn't that create an incentive not to vote? I don't want the party I'm voting for to get my $2. I might decide, I'll stay home, so they'll have to get their money the old fashioned way -- by earning it. But I digress.)

A better law would be to give $2, or even $5 or $10 or $20, to every citizen, to put towards whatever advertising he or she wanted. That way, you'd get a diversity of views, not just what the three parties want to say.

You'd have pro-life ads, and pro-choice ads, and "tax the banks" ads, and "lower corporate taxes" ads. The students would contribute to "lower tuition" ads, and the gay rights and anti-gay rights people would go at it in opposing commercials (and probably the pro-gay ads would seriously outnumber the opponents' ads -- but nothing wrong with that.)

Wouldn't it be amazing? Instead of just having politicians attacking each other's character, you'd have ads actually arguing about issues and legislation. You'd have a real debate.

25. People have a fantasy that the way you get change is by electing the right politician, the one who thinks like they do and will courageously face down the special interests, and heroically make everything right. That doesn't work(as a lot of disappointed people who voted for Obama would agree), and has probably never worked.

The way you get change is by slowly, gradually, moving forward in a dialogue with your fellow citizens. Think about, for instance, gay rights. Thirty years ago, gay marriage was illegal in Ontario. Now, it's legal. What happened?

It wasn't a wise and charismatic leader giving a stirring speech and passing a law. It was a change in attitudes among Ontarians. The legislature and the courts just followed along, taking positions they would not and could not have made until fairly recently. Even if the premier had believed in gay marriage thirty years ago, he wouldn't have had the votes ... and, in any case, it would have been political suicide.

Traditional politicians, and traditional political advertising, do not move the dialog along. Third-party ads do. A gag law against third-party ads is a small-c conservative policy, serving to reinforce the status quo.

If you want to help make the world better, you need to talk about the issues more, not less.

26. And new views just take a lot more persauding than others, even if they're correct. Consider gay rights again. Fifty years ago, could you have convinced a reasonable person that gays should be accepted in society? Maybe. But it would take a lot of arguing, wouldn't it? There are a lot of preconceptions you'd have to overcome.

You can probably think of a public policy position that's well-accepted, plausible-sounding, and politically correct, but just plain wrong. Mine might be, "marijuana use is harmful and should be illegal." Do you agree with me on that one? If not, take a second to come up with one of your own.

I bet that whatever fallacy you're thinking of, it can probably be expressed in just a few words. Now, how many words would it take to rebut them? A lot more. In fact, I bet that you could spend ten or twenty times times as much time and money arguing for your point of view, and that still wouldn't be enough to overcome the plausible-sounding one.

Some positions are complicated (or "nuanced", as some would say), orders of magnitude complicated than the opposing position. In those cases, money makes the playing field *more* level, not less.

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27. Finally, ask yourself this: If candidate X says that blacks are inferior to whites, should blacks have the right to take out ads urging people not to vote for him? What if candidate Y says global warming is a myth, or Jews control the world, or the Muslim head scarf should be banned, or smoking should be allowed in public schools? Should environmental groups, or Jewish groups, or Muslim groups, or the Canadian Cancer Society, not have the right to rebut?

If they don't have that right -- and candidate X and Y win anyway -- I don't see how you really say that the election was fair, or even free.