Category Archives: Election Advertising

“Brexit: Electoral Commission reopens probe into Vote Leave”

From the UK here is an interesting matter involving election finance limits from the Brexit referendum:

Was the paying of the bills of a third party in accordance with the rules, or did it result in the Leave campaign exceeding the spending limits?

That will be up to the Electoral Commission to decide and then surely for the courts to adjudicate. An interesting set of facts that provides insight into just how much money is involved in elections and the steps that political actors take to spend as much money as possible without running afoul of the election finance laws that seek to limit their influence.

Green Party Sanctioned for Distributing Misleading Polling Data

CBC reports on a compliance agreement entered into on July 22nd by the Green Party of Canada:

In the compliance agreement the Party acknowledged that:

  • deliberate use of unreliable polling data intended for internal use, which use did not meet the informational requirements of the Elections Act—as well as the erroneous presentation of the polling data as being the latest results when subsequent polling data was trending down—was misleading; and
  • It constituted an attempt to induce a person to vote or not to vote for a particular candidate using a pretence or contrivance, and as such, an offence under paragraph 482(b) of the Act.

Here is the notice of the compliance agreement from the Commissioner’s website:

Another reminder of the importance of political parties retaining legal counsel during elections and working closely with them to ensure compliance with the Elections Act!

Was John Oliver’s “Last Week Tonight” Segment Illegal?

Several Canadian news outlets reported on the legality of John Oliver’s “Last Week Tonight” segment on HBO last week:

Globe and Mail:

Winnipeg Free Press:

Toronto Star:

These stories focused on section 331 of the Election Act (Canada), which prohibits persons who do not reside in Canada and who are not citizens or permanent residents from inducing electors to vote or not. The articles cite an Elections Canada spokesperson who notes that sharing an opinion is not considered an inducement, as there is no tangible thing that is being offered. I don’t think that inducements are limited to tangible things, but I agree that the sharing of opinions is not an inducement.

Interestingly, I haven’t seen any analysis of whether Mr. Oliver contravened section 330 of the Act, dealing with the use of a broadcasting station outside Canada. Unlike section 331 which serves a valuable purpose, a prohibition on using broadcasting stations outside Canada to influence (not induce) people to vote or not seems to me as an outdated provision that would be pointless to try to enforce.

I would be interested to see if anyone has looked at whether the segment did contravene section 330 though, just to see whether anyone else thinks it still has a purpose.

Loophole Allows Third Parties to Keep their Backers Secret

Well-prepared third parties may be able to keep the names of their financial backers a secret thanks to a loophole in the Canada Elections Act.

The Elections Act regulates third party election advertising in two ways.

First, the Act places limits on how much third parties can spend on election advertising.

Second, the Act provides some transparency on how third parties are funded by requiring them to file a report if they spend more than $500 on election advertising. This report must include the names and addresses of those who contribute more than $200 for election advertising purposes.

This is where the loophole lies, as third parties do not have to include everyone who contributes more than $200 in their report.

Pursuant to section 359(4), third parties only have to report on contributions for election advertising purposes that were received in the period beginning six months before the issue of the writ and ending on polling day.

Therefore, if a contribution was made to a third party for election advertising purposes more than six months before the start of a campaign period, the name and address of the donor is not required to be disclosed.

Well-organized third parties could use this loophole to collect large donations from contributors who wish to influence the outcome of an election while remaining anonymous.

Will any third parties be able to take advantage of this loophole for this year’s federal election? It is possible, especially if they were soliciting donations for the upcoming election before March. With a fixed election date, there is some certainty as to when the election will be called which makes it quite simple to take advantage of this loophole.

This weakness in election finance transparency is a result of the federal election advertising rules not being updated to reflect the existence of fixed election dates. In order to close this loophole, third parties should be required to report the names and addresses of donors who contribute more than $200 for election advertising purposes regardless of when the contribution was received.

Were Trans Mountain Ads Pulled Because of Third Party Election Advertising Rules?

Laura Kane of the Canadian Press reported yesterday that Kinder Morgan has pulled its advertising for the proposed Trans Mountain pipeline expansion until the federal election campaign is completed:

The article explores why this decision was made, but there are a few unanswered questions and some misleading political speak in it, so I will try to cut through the spin and explain what the key issue is.

The big question is whether the ads meet the definition of election advertising. I don’t know exactly what ads are at issue here, but it is far form clear that Kinder Morgan’s regular ads promoting the project should be considered election advertising. If they are, then Kinder Morgan will have to register with Elections Canada.

Kinder Morgan seems to be taking the position that the ads aren’t election advertising, but they are pulling them anyways. The Commissioner of Elections may not publicly release his opinion on whether the ads are election advertising, but if Kinder Morgan doesn’t register, it is likely that the Commissioner has told them they do not have to register because the ads aren’t election advertising.

However, if the Commissioner considers that the ads are election advertising, Kinder Morgan will be required to register as a third party because the expenses for the ads are certainly over $500. If this is this case, the fact that Kinder Morgan spent over $500 on election advertising doesn’t mean they broke the law. They wouldn’t even have to yank the ads as long as they register and stay within the expense limits.

This article is a good illustration of the risks that election advertising laws pose to third parties. Kinder Morgan’s ads may or may not be election advertising, but running them during an election campaign has put them in the news in an unfavorable light.

It is very important for third parties to understand whether any political messaging they do during an election campaign will be considered election advertising or not. This determination will affect whether and how advertising may be conducted during the election campaign where the transmission of any political message will be scrutinized for legal compliance.

New Elections Canada Interpretation Note Marks Seismic Shift in Regulation of Election Advertising on the Internet

Elections Canada has made a change in its interpretation of election advertising on the internet that will have a massive impact on how political advertising is conducted by third parties, especially during elections.

This new interpretation is contained in an interpretation note that was published yesterday, and is available on the Elections Canada website here:

The interpretation is also included in the newest version of the Election advertising handbook for Third Parties, Financial Agents and Auditors, which is available here:

Previously, videos and other content that were posted on the internet without a placement cost could be considered as election advertising. Content posted on youtube, on third parties’ own websites, even tweets and facebook pages were considered to be election advertising. The costs of producing a video or other content (as well as any placement costs) were considered an election advertising expense, limiting the content that third parties could put online. For example if a third party incurred more than $150,000 in production costs to make a video for its website and youtube, the third party may have been required to take it down during the campaign period as it could put the third party over the election advertising expense limit.

Now, Elections Canada will consider that election messages communicated over the Internet are election advertising only if they have, or would normally have, a placement cost and meet the statutory criteria of promoting or opposing a registered party or candidate.

This means that videos and other content that a third party puts on its own website or shares through social media for free (no placement cost) will not be considered election advertising.

One example of the kind of impact this will have is the “Engage Canada” and “Working Canadians” campaigns that made headlines earlier this summer for not being subject to transparency and expense limits. These groups had indicated that they would be taking their websites and youtube videos down once the campaign started, so that they would not incur any election advertising expenses which would require them to disclose who is funding their organizations. However, following Elections Canada’s new interpretation of election advertising on the internet, they can keep their websites and youtube videos up. As long as they don’t pay a placement cost to promote their websites and videos, they will not be incurring any election advertising expenses.

Third parties who are running online political advertising campaigns during the campaign period, whether there is a placement cost or not, are well advised to seek legal advice on whether the campaigns will be considered election advertising or not. This is especially the case for third parties who are receiving contributions from other third parties.

This is a very complex area of the law regarding election communications and the impacts of this change won’t be fully understood until well after the fall election.

What is clear is that it just became much easier to conduct political advertising on the internet during an election campaign. On the other hand, the laws that prohibit colluding to circumvent the third party election advertising limit, and the question of just what is a placement cost, just became a lot murkier and riskier for third parties who may look for ways to maximize the impact on their online campaigns while trying to avoid incurring any election advertising expenses.

One prediction: look for a lot more viral partisan videos, where the strategy for getting the message out is not to pay for placement, but to have followers share it for free.

What impact do you think this new interpretation will have on how third parties use the internet to conduct political campaigns?

Will this new interpretation affect how a third party you are involved with conducts any online political messaging this election?

Here is the Constitutional Roadblock in the way of Limiting Pre-campaign Political Advertising

Proponents of restricting political advertising expenses beyond the official campaign period are faced with overcoming a difficult constitutional issue: can such limits on freedom of expression be justified by section 1 of the Charter?

Pursuant to section 1 of the Charter, the rights and freedoms contained in the Charter (including freedom of expression) can be restricted by “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The issue of whether limitations on political advertising prior to a campaign period are constitutional have been before the BC Court of Appeal twice, with each decision turning on the question of whether the limits on third party election advertising minimally impairs the right to freedom of expression.

In BC, third parties election advertising expenses during a campaign are limited to $150,000 in total, with a $3000 limit for specific electoral districts (plus an inflation factor).

The first attempt by the BC Government to address this issue was to extend the limits on third party election advertising expenses into a 60-day pre-campaign period. This extension was held to be unconstitutional in British Columbia Teachers’ Federation v. British Columbia (Attorney General), 2011 BCCA 408 (CanLII). This ruling focused on the fact that these limits could apply while the BC legislature was in session, limiting the ability of third parties from expressing their views on matters of public policy.

After the 60-day pre-campaign period was held to be unconstitutional, the BC government tried again by amending the 60-day period to a shorter period that would not overlap with a session of the legislature. The BC Court of Appeal held again that this limit on third party election advertising was unconstitutional: Reference re Election Act (BC), 2012 BCCA 394 (CanLII). This time the Court focused on the inclusion of “issue advertising” in the definition of election advertising that was being restricted. According to the Court, “The definition of election advertising is overly broad. It captures virtually all political expression regardless of whether such is intended to influence the election”.

In these two decisions the BC Court of Appeal never really addressed the question of how the exact amount of the expense limit (which is the part of the measure that restricts expression) failed to meet the minimum impairment test. In addition, the Court made no effort to interpret in any depth how “issue advertising” was captured in the definition of election advertising; this is a far more complex and nuanced issue from how the Court considered it.

While the judgments of the BC Court of Appeal can be criticized, and circumstances can change in the years since these decisions, these judgments still represent the constitutional challenges that any limit on third party election advertising outside of a campaign period must overcome. Whether it is a change in the definition of election advertising, higher limits, or just more evidence of the harm caused by dark money, more will be required for these limits to pass a constitutional challenge, at least in the BC Court of Appeal.

Montreal Gazette: “Spending caps should cover run-up to elections”

The Montreal Gazette editorial board has called for election expense limits to be extended “well beyond” the campaign period:

“Loophole in fixed-date election law allows for questionable spending, observers say”

In today’s article in the Globe and Mail, Elections Canada CEO Marc Mayrand comments on the issue of dark money and third party election advertising rules:

Many commentators continue to consider this a loophole in the fixed election date law, but that isn’t really the case. The loophole is in the third party election advertising law. The loophole has been exacerbated by the fixed election date law, but it was there before fixed election dates, and would have been exploited even without a fixed election date.

In its post-election recommendations Elections Canada will be expected to tackle the issue of dark money by closing the loopholes that allow unlimited spending without transparency before the issue of the writ, and the ability to shield contributors from disclosure in third party election advertising reports.

Proposed Municipal Election Expense Limits in BC Would Stifle Third Parties

A Special Committee of the British Columbia legislature has recommended election advertising limits for municipal elections that would effectively prohibit political advertising by third parties during election campaigns in smaller communities.

The Special Committee on Local Elections Expense Limits published its final report on June 26th. The Committee was appointed to examine, inquire into and make recommendations to the Legislative Assembly on expense limit amounts for candidates and third party advertisers in local elections.

In summary, the Committee recommended that there be a single expense limit for jurisdictions with a population less than 10,000, a limit based on population for jurisdictions with a population over 10,000, and a limit on third parties set at 5% of the limit for mayoral candidates, as follows:

– in jurisdictions with a population less than 10,000, mayoral candidates have an expense limit of $10,000 and candidates for all other locally elected offices have an expense limit of $5,000;

– in jurisdictions with a population of 10,000 or more, mayoral candidates have an expense limit of $1 per capita for the first 15,000 population, $0.55 per capita for 15,000 to 150,000 population, $0.60 per capita for 150,000 to 250,000 and $0.15 per capita thereafter;

– in jurisdictions with a population of 10,000 or more, candidates for all other locally elected offices have an expense limit of: $0.50 per capita for the first 15,000 population, $0.28 per capita for 15,000 to 150,000 population, $0.30 per capita for 150,000 to 250,000 population and $0.08 per capita thereafter; and

– third party advertisers have an expense limit of 5 percent of the expense limit of a mayoral candidate in municipal elections or 5 percent of the expense limit of a candidate in those races
where there is no mayoral candidate (e.g., for school trustee or regional electoral area director)
and that $150,000 be an overarching, cumulative limit.

It is now up to the BC legislature whether to accept, modify or reject these recommendations for the 2018 local government elections.

The greatest concern I have with these recommendations is the expense limit proposed for third parties in small communities. The limit is so low that it effectively prevents third parties from being involved in the political discourse in a meaningful way.

In my view there is a high risk that a court would rule that the proposed limits on third parties are an unconstitutional restriction on freedom of expression.

Here is what the Committee had to say about its recommendation for third party election expense limits being set at 5% of the mayoral limits:

“The Committee concluded that 5 percent was a reasonable expense limit amount for third party advertisers. It would permit third parties to effectively communicate their views on elections issues to the electorate but not in such a way that the voices of candidates could not also be heard.”

In a jurisdiction with a population of less than 10,000, the limit for third parties will be $500. That might not be even enough to purchase one ad in the local paper, let alone be anywhere near enough to effectively communicate their views. You can barely buy a single printed banner for that amount.

In a community with a population of 15,000, the third party limit rises to a meager $750.

In the larger communities, at least third parties can place at least one single ad in a local newspaper, but the limits (based on 2011 data) are still very stingy:

Kamloops, population 89,417: mayoral limit $55,929.35, third party limit $2,796.47
Burnaby, population 233,734: mayoral limit $139,490.40, third party limit $6,974.55
Surrey, population 513,322: mayoral limit $188,748.30, third party limit $9,437.42

Whether the BC legislature adopts the proposed limits on third parties is something that I will be watching closely.

What do you think about the proposed expense limits for local government elections in BC? Are the limits needed? Are they too high, too low, or just right? Share your views in the comments section below.