By: Ed Morgan
This commentary was first published in the Globe and Mail on Thursday, April 7, 2011.
The issue of public subsidies for political parties resurfaced Friday, with Stephen Harper promising to eliminate funding if he achieves a parliamentary majority. Those with a three-year memory span will recall that the Tories were nearly defeated by the combined opposition when they proposed this move in 2008.
Those with a longer memory will recall that electoral finances and spending were pet issues of Mr. Harper before he entered federal politics. As head of the National Citizens Coalition, he brought a court action challenging election spending limits imposed on third-party interest groups. The Canada Elections Act, 2002, restricted spending during an election campaign by non-political parties to $150,000 nationally – roughly the cost of several full-page newspaper ads.
That case helps recall that Mr. Harper has long thought that a free-market economy and free-market democracy go hand in hand. The Supreme Court of Canada, however, rejected his challenge, ruling that spending limits are a justifiable limitation on individual rights. The court gave notice that, in Canada, political expression can be adjusted, and controlled, without concern that the Constitution requires this to be an area that government keep its hands off.
By coincidence, the question of electoral finance was before the U.S. Supreme Court last week. The justices heard a challenge aimed at striking down an Arizona law that provides matching funds to political candidates who accept public financing, allowing them to keep pace with those who privately finance their campaigns. The challenger, a political action committee, asked the court to rule that subsidies, like spending restrictions, infringe the First Amendment guarantee of free speech.
The U.S. court had already ruled in 2009 that the government can restrict campaign fundraising only for certain limited purposes, such as combatting corruption. What government in the U.S. can’t do is play social engineer, and use its legislative power to adjust the voice of parties whose access to the marketplace of dollars and ideas is too little or too great.
In one intriguing exchange, Chief Justice John Roberts told lawyers for Arizona that he had visited the website of the state’s electoral commission. As reported by The New York Times, he pointed out that Arizona claims its legislation “was passed to, quote, ‘level the playing field’ when it comes to running for office.” He then asked, “Why isn’t that clear evidence that it’s unconstitutional?”
The Supreme Court of Canada used the same phrase in its 2004 decision in the Harper case. Here, government intervention was ruled a constitutionally supportable act. As the court put it, creating “a level playing field for those who wish to engage in electoral discourse” is a perfectly valid objective. Where the U.S. Constitution demands increased speech during election time, the Canadian Charter of Rights justifies government’s levelling the competitive speech arena.
All of which illustrates that the 49th is not always so parallel. Indeed, the liberal social equation is made up of two vacillating halves: The U.S. constitutional system inclines toward liberty, while the Canadian system inclines toward equality.
Neither position, of course, is set in stone. Whether the Constitution increases the political freedom of those with the means to speak, or helps level off our freedoms for the sake of those who are only faintly heard, is always up for grabs.
