Doug Ford, Elections Finance, and, the Notwithstanding Clause

I never thought that I'd be writing a column defending Doug Ford, but even a stopped watch is right twice a day. So here it goes---.

The media has been all a flutter recently over Ford's announcement that he intends to bring in the Notwithstanding Clause to resurrect Bill 254, or An Act to amend various Acts with respect to elections and members of the Assembly. All the other political parties are upset about this. But I've gone through and read the Elections Finances Act and on the face of it, I don't see anything terribly wrong with either Bill 254 or Ford's decision to bring it back to life from the judicial graveyard.

Could he actually be right?!!! Public Domain image c/o Wiki Commons.

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The key element that people are upset about is the "limits to free speech" that the Tories want to impose upon people. When I looked at the legislation, the key points that deal with this are an expansion of the ban on political advertising from six months to a full year before the fixed election date.

Frankly, I don't have a problem with this. One of the big differences between the Canadian and American electoral system is the shortness of our elections. Do we really want to get into a situation like the US where the moment you get sworn into office you have to start thinking about the next election? If we don't, then we need to have a ban on political advertising that is so long that no matter how effective it might be to influence human behaviour, it will all be totally forgotten by the time the writ is actually dropped. A year sounds just about right.

The second part is the move to limit the amount of money that can be spent on what's call third party advertising. Commentators have made a lot of noise about how this legislation is aimed directly at unions because of things like the following.

But reading the legislation it's clear that the same legislation that will "reel in" Working Families Ontario will also do the same thing to groups like Ontario Proud. And that strikes me as a totally unmitigated good.

I don't think that either the judge, media pundits, or, the opposition parties have really thought through how damaging this sort of third party advertising can be to a democracy. That's because as a general rule political parties tend to be moderating influences on hysteria. For example, hard as it may seem for some of us to believe, Ford has actually purged a couple extremist wingnuts from the PC caucus. 

Here's one, Belinda Karahalios, in question period asking a question that supports the idea that the Covid pandemic is being used to promote a sinister socialist plot. 

And here's another. Randy Hillier has become something of a hero for the anti-lockdown types. Here he is at a stupid ruckus in Peterborough.

Third party advertising dramatically weakens the power of the political parties, because it gives people with no responsibility to anyone but themselves the ability to radicalize citizens. In contrast, political parties are "big tents" with all sorts of different points of view. That means the advertising they support needs to have some sort of broad-ranging appeal if the party is going to have any chance of forming a government. This mitigates against extremism. 

Consider the following two examples. 

I can remember---back when the dinosaurs roamed the earth---that the federal Conservatives under Kim Campbell aired an attack ad that focused on Jean Chretien's partial face paralysis. It went horribly, terribly wrong for them because many people thought it looked like the ads were attacking Chretien because of a minor disability. And because it was an official Progressive Conservative advertisement, the party was punished for airing it. Here's a CBC clip that talks about this incident.

In contrast, consider this third party advert supporting the Conservatives that was aired on line during the last provincial election. Please note, it is a LOT WORSE than focusing on Chretien's Bell's palsy. It is aimed at Kathleen Wynne---and is profoundly sexist and homophobic. And yet, because it was aired by a third party instead of the Tories, none of the sleaze stuck to Doug Ford or his candidates. 

If you put third party advertising on the Web and promote it through social media, the problem becomes far worse. That's because the sorts of folks who would have freaked about the following advert would probably have never seen it anyway because of the way the artificial intelligence isolates people into their own "filter bubbles"---which means this sort of sleaze is even harder to control without formal safeguards of the sort that Bill 254 puts into place.

Political parties with any scrap of self-interest (let alone decency) realize that they damage their brand if they directly associate themselves with this sort of awful public relations. That's why it is important that we not allow wealthy individuals to fund campaigns that whip people into a frenzy of hate while at the same time allowing the party they support to feign ignorance of what is going on. If they want to make a mess---they should have to wear it. As near as I can tell, that's what will happen under Bill 254.   

(The exceptions to this notion prove the rule. When Erin O'Toole took over the leadership of the federal conservatives he clearly stated that he wants to move the party away from things it has done in the past because they will never be able to form a government if they continue to be known as the party that voted against a resolution condemning Islamophobia, passed the Zero Tolerance for Barbaric Practices Act, and, suggested during the 2015 election that they wanted the RCMP to set up a Barbaric Cultural Practices tip line. All of these were far from subtle "dog whistles" to the Islamophobes of Canada that the federal Tories are "their guys"---and in making these signals, they've pushed the party to the brink of irrelevance.)

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I'm a little annoyed with the legacy media and the opposition parties because I haven't seen the issues I raise in this article in anything I've read or heard. This is part of why I publish "The Guelph-Back-Grounder". It's a lot of work though, and like everyone else I can use a bit more money than I already have. So if you can afford it, why not subscribe through Patreon or Pay Pal?

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This feeds into another complaint raised about Bill 254. People are concerned about increases to the amount of money individuals can donate to official campaigns. While I'm not a great fan of this sort of thing, I'm not too upset that wealthy people can donate $3,300 to the party and the same amount to a Constituency Association or campaign every year. I did gag when I read that candidates can donate $10,000 of their own money to their campaigns and $50,000 for a party leadership bid. But I am reconciled to the idea that I will never get all I want from just about anything. 

Moreover, we need to remember how much of our elections are financed by tax payer's money. 

• Corporate and Union money is banned. 
• There is a subsidy based upon the votes a party receives at the rate 63 cents for every vote cast.
• There is a substantive tax rebate for donations to a party.
  
• 75 per cent on the first $427 of donations in 2021
• 50 per cent on the portion of your donation between $427 and $1,423 in 2021
• 33.33 per cent on the portion between $1,423 and $3,238 in 2021.
•  If a candidate gets over 5% of the vote, the Constituency Association gets back 20% of what was spent in the election plus 20% of the maximum that it could have spent under the rules.

Readers might be tempted to think that it would be more democratic if donation limits were kept low and you had to raise your money in small individual amounts from lots of individuals. Unfortunately, parties have found that the best way to do it that way is by scaring the bejesus out of people. And this has gone a long way to create the dangerous polarization we already see. (I wrote one of my most popular articles on this subject: Fundraising is Making Us Angry.) I'm not so sure that we really want to encourage the political parties to raise an even higher fraction of their money through "rage giving".

There are a lot of other things in the bill---such as new significant fines levied against people who break the rules. But I think the above is enough to show that I think Ford has a good argument. Of course, all of my opinions are provisional and I'm willing to listen to good reasoned, factual opinions that differ.

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One thing that doesn't butter my parsnips at all are the dire warnings about the use of the Notwithstanding Clause, or, Section 33 of the Canadian Charter of Rights and Freedoms. As of writing this article, I have yet to see any pundit or reporter explain exactly how this works. I suspect that that's because if the average reader knew it, they'd be a lot less vulnerable to the out-cry that 'the sky is falling'. 

The first thing to understand is that our Charter of Rights and Freedoms is interpreted by judges, and judges are fallible human beings. They make mistakes. If you look South of the border, where judicial review of laws based on a charter of rights has existed far, far longer than here, you will find numerous examples where the Supreme Court has rendered terrible judgements. For example, it recently ruled that states could refuse the medicaid expansion promised under Obamacare. This basically hamstrung the program in a great many Republican states and denied millions of people access to health insurance.

Because the US has no Notwithstanding Clause, there wasn't a lot Obama could do. In contrast, if this had happened here, Trudeau could have used Section 33 to temporarily over-rule the Court and force states to insure the poor. And after a few years of having health insurance, the odds are that the millions affected would have been willing to do whatever necessary to ensure that their coverage wouldn't be taken away. Moreover, with the threat of a Notwithstanding Clause hanging over their heads, the odds are the Supreme Court wouldn't have made such a ridiculous decision in the first place.  

Note that word "temporarily" in the above paragraph. Section 33 doesn't give Ford the right to just ignore the Charter, he can only postpone the judge's ruling. At that point there is the option of invoking the clause to temporarily ignore the ruling again, for another five years, and, so-on. This can go on indefinitely until a new government decides to give up, finds a work around, or, some new development renders the judicial ruling irrelevant.

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One of the ideas I hear from the mainstream media is that if Ontario uses Section 33 once, it will be so much easier to do the next time that the Charter will becomes fundamentally worthless. This is the old "slippery slope" argument. Here's a little secret that I will share with you: the slippery slope argument is invalid. 

Human beings and institutions have the ability to set limits on how often something gets used. How much do you believe in the following slippery slope arguments?

• once you try smoking cannabis you've "opened the gate" to harder drugs, like heroin
• if we legalize gay marriage, what's next? People marrying their dogs? sex dolls?
• once you stop doing what the church says, eventually all sense of right and wrong disappears

These are all slippery slope arguments---and they are idiotic. Drinking a glass of water doesn't lead to drowning. And using the notwithstanding clause doesn't lead to North Korea. 

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Moreover I say unto you, the Climate Emergency must be dealt with!