Election advertising law doesn’t just limit big spenders – small spenders get tangled in complicated rules that undermine democratic debate.
Instead of re-introducing controversial “pre-campaign” limits, the provincial government should focus on fixing other problems in BC’s third party election advertising rules – problems that created a chill effect in the lead-up to the 2009 election. A research study conducted after the election found these problems led to widespread confusion, self-censorship and wasted resources among organizations that spend little or nothing at all on advertising.
“The third party advertising rules enacted in 2008 cast an extremely wide net,” says study author Shannon Daub. “The definition of election advertising is incredibly broad, and third parties must register with Elections BC before doing any so-called advertising, even if what they’re doing doesn’t cost a cent (such as posting information about a public policy issue on Facebook). As a result, dozens of small organizations got tangled up in the rules, which are difficult to interpret and label all kinds of non-partisan public interest communication as ‘advertising.'” More than half the 232 organizations registered as advertising sponsors for the 2009 election spent less than $500, and three quarters spent less than $3,000.”
“Other parts of Canada with third party spending laws don’t require registration unless you have spent a minimum amount,” says Vincent Gogolek, Executive Director of the BC Freedom of Information and Protection of Privacy Association, which co-published the study. “This requirement that people register before they express themselves during an election is probably unconstitutional,” he adds.
The inclusion of a pre-campaign period – initially 120 days, later reduced to 60 and then struck down by the BC Supreme Court – also created a chill climate, says Daub. “Many organizations interpreted the rules as an attempt by the government to monitor critics. Bringing back the pre-campaign period now, even shortened to 40 days, is likely to re-ignite those fears.”
Changes that would make the rules easier to understand and more effective include:
- Establish minimum spending thresholds of $1,000 in a single constituency and $5,000 province-wide before the requirement to register as an advertising sponsor kicks in.
- Revise the definition of election advertising so it is easier to interpret and adequately deals with the realities of online communication.
- Exempt volunteer labour from the definition of an election advertising expense (as is the case for political party and candidate expenses).
- Exempt charities from the rules altogether, as they must already demonstrate they are non-partisan and make a contribution to the public good in order to achieve and keep registered charity status.
“As currently designed, the negative consequences of these rules far outweigh the benefit of limiting big spenders,” says Daub. “If the government government isn’t prepared to fix the third party rules, it should scrap them altogether.”
Election Chill Effect: The Impact of BC’s New Third Party Advertising Rules on Social Movement Groups was published in October 2010 by the Canadian Centre for Policy Alternatives, the BC Freedom of Information and Privacy Association, and the BC Civil Liberties Association. It is available here.