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Navigating Elections Canada's new (and unclear) third-party spending rules

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I don't anticipate removing my Save Canada Post sign from our front door before Oct. 19.

The campaign is far from over and I deeply believe that home mail delivery is an issue of social importance.

When I saw a debate on Facebook about whether or not new election third-party spending rules would require me to remove the sign from the window, I immediately uttered an "oh hell no" and stumbled into the debate that is surely occupying the campaigns and legal staff of unions across Canada.

The Conservatives have gamed the rules of this election in their favour. They changed elections rules to make voting more difficult. Elections Canada can no longer promote how voting works, privileging voters who are more seasoned (or, older). The ultra-long campaign period is good news for the parties with the deepest pockets.

And third-party spending has been severely limited.

I support limiting third-party spending. I think that non-political parties need to be limited in how much they spend to support a political party or candidate, and that they should be accountable to Elections Canada.

But the changes to Elections Canada policies go far beyond limiting donations. Kevin Grandia has a great write-up on what Elections Canada's new policies actually say, and it's required reading for anyone trying to make sense of the new terrain.

What remains unclear though, hinges on this:

"Election advertising is the transmission to the public by any means during an election period of an advertising message that promotes or opposes a registered party or the election of a candidate, including one that takes a position on an issue with which a registered party or candidate is associated."

This means that any campaign that directly confronts Stephen Harper probably falls under the third-party rules. Unions who planned to explicitly promote a candidate will have to register as a third party and report their spending.

What is much less clear is the second half of that paragraph: "including one that takes a position on an issue with which a registered party or candidate is associated." If a union has a campaign that fights to save door-to-door delivery for Canada Post, does this new language require that the campaign be registered and spending be tracked by Elections Canada?

Since the writ dropped three days ago, the parties have made nearly no policy announcements. Harper has promised a home renovation tax credit, maybe, and the Liberals and NDP could make similar announcements before the election is through. But that's it.

How can Elections Canada regulate what exists in the ether already? Is CUPW really responsible for every Save Door-to-Door sign distributed? I printed mine off myself; do I need to report to my local CUPW office? Do I need to keep track of this in case I surpass the $200 limit in my plans to paint our windows with va chier Harper?

And what's the benchmark to determine if an issue is associated with a party? Google mentions? Party bylaws? Branded announcements about a particular policy? In an era of neoliberal campaigns, the Conservatives could easily change direction on a policy that they once supported. In an 11-week campaign, surely all policies are up in the air and up for grabs by all the parties.

Would a non-registered $15 minimum wage campaign be illegal, but a "raise the minimum wage by __%" be legal? What then happens if the Liberals steal the slogan and promise the raise?

None of this has been tested in court so there are no answers to the questions I've posed. There are only better or worse guesses. 

These policy changes are clearly targeted towards social movements and unions. Corporations and the rich have other mechanisms to support political parties and they are not likely to be as worried about these changes as are unions and not-for-profit organizations. The few right-wing not-for-profits that exist could easily sit out the advocacy game for 11 weeks and fill their time with punditry on Canada's national news networks.

Considering this, what's the best course of action for unions to take?

Those unions who are fighting to unseat politicians will probably have to register under third-party regulations.

But these changes offer unions the opportunity to double down on traditional organizing methods, while refusing to be intimidated by terrible laws. This language is intentionally unclear. Unions cannot back down in mobilizing their members to vote by conservatively interpreting these rules.

Union organizers should launch issues-based campaigns that call for all parties to respond to their demands. They should centre their campaigns on the core values of their members and endeavour to speak directly to every single union member about what's at stake during this election. Unions must see this election as an opportunity to engage the grassroots in every workplace across Canada to talk about the kind of government they want.

And, unions have to get creative. They should consider how best to use these exemptions to promote their message:

  • the transmission to the public of an editorial, a debate, a speech, an interview, a column, a letter, a commentary, or news
  • the distribution of a book, or the promotion of the sale of a book, for no less than its commercial value, if the book was planned to be made available to the public regardless of whether there was to be an election
  • the transmission of a document directly by a person or a group to their members, employees or shareholders, as the case may be
  • the transmission by an individual, on a non-commercial basis on the Internet, of that individual's personal political views

Unions must also be ready to confront this legislation in court. If unions are unwilling to challenge unjust laws that are written by unjust rulers, there isn't much hope in saving progressive Canada. Be bold in the interpretation of these laws. Be prepared for fines. Hell, be prepared for jail time.

There is not much the average Canadian can do to confront the bureaucratic attacks waged against them by Stephen Harper. Unions exist to help give power back to the people and democratically represent the desire of their membership.

Harper has long ago declared war on unions. If unions are going to have a chance to win this war, they have to define the rules of engagement on their own terms, not on Harper's.

(Nora Loreto is no lawyer and should always be referred to like that. Circulate this piece, unions! It's not "third-party campaigning" under the act).

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