The BC government wants you to shut up during the next election.

That’s the message that emerges when you read between the lines of its proposed amendments to the Election Act.

The Premier claims she is trying to prevent Big Money from buying provincial elections. Her government has re-introduced a controversial measure to limit “third party election advertising” prior to the start of a provincial election campaign. But what the Premier doesn’t mention is that the Election Act requires third parties to register with Elections BC before they are even allowed to speak up. Given the extremely broad definition of election advertising in the Act, this is a serious problem. Here is that definition (from s.228 of the Act):

“the transmission to the public by any means, during the period beginning 60 days before a campaign period and ending at the end of the campaign period, of an advertising message that promotes or opposes, directly or indirectly, a registered political party or the election of a candidate, including an advertising message that takes a position on an issue with which a registered political party or candidate is associated…”

In other words, just about any public communication on any provincial issue under the sun. Failure to register as an ‘election advertising sponsor’ means you will have committed an offence, and will be liable to up to a year in jail and a $10,000 fine.

It gets worse. You don’t have to spend a single cent to be caught by a law that claims to be about reducing the influence of Big Money.

According to Elections BC’s website, “Election advertising sponsors must be registered with the Chief Electoral Officer, even if the election advertising they are conducting does not cost any money.”

This law poses a real danger to engaged citizens and small organizations who may spend a few dollars (or even no dollars) communicating with their neighbours or the wider public. Want to put a sign in your window about an issue you have an opinion about? Better register with Elections BC first. A community organization wants to talk about its concerns on Facebook? Register first.

Research we conducted with social movement groups after the 2009 provincial election found:

  • The prospect of being publicly labelled as a “third party advertising sponsor” created anxiety for many non-profits, charities and other organizations that are careful to remain non-partisan, with some simply choosing to opt-out of public engagement during the election entirely.
  • One in four of the groups that participated in our study self-censored as a result of the rules. Six groups censored public communication activities specifically to avoid having to register as advertising sponsors. Others self-censored due to confusion and/or concerns about the risks of inadvertently breaking the rules.
  • Most of the activities groups censored had little to do with commercial advertising. For example, nine groups did not post new material on their websites; four removed existing material from their websites; and four refrained from issuing or endorsing a call for changes to government policy.
  • Particularly troubling is the revelation that five groups avoided commenting in the mainstream media due to confusion about the rules (media commentary is one of a few exemptions from the definition of advertising).

Other parts of Canada with third party spending limits don’t require registration until you spend at least a minimum amount. Usually this minimum amount is $500; in Alberta it is $1000. Having a minimum spending threshold reduces the risk to small groups or individuals who just want to speak out about an issue that is important to them. Without a minimum threshold, in practice BC’s rules focus mainly on these small spenders. Of the 232 organizations registered as third party sponsors during the 2009 BC election, more than half (59%) spent less than $500, and three quarters spent less than $3,000.

The requirement to register before you spend a dime targets the involved, active citizen that every democracy is supposed to be encouraging. And it targets small organizations, many of which represent the least powerful people in our society, whose voices are already marginalized. At a time when voter participation is falling, this law is not only unjustifiable, it is also profoundly destructive to democracy.

In his 2010 report to the Legislature, the Chief Electoral Officer noted the problem of not having a minimum spending threshold given the sweeping definition of election advertising. He suggested legislators consider making changes. Apparently the government either forgot about his report, or decided to ignore it.

In all likelihood, the current rules are an unconstitutional restriction on freedom of speech, and likely also of freedom of association. Instead of resurrecting the controversial “pre-campaign period,” the provincial government should set a reasonable minimum registration threshold so that the rules no longer target small spenders. If the government is unwilling to do so, then it should at least seek an opinion from the BC Court of Appeal on the constitutionality of requiring third parties to register before they can even speak up. After all, the small spenders can’t afford to launch a costly court challenge.

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Vincent Gogolek is Executive Director of BC’s Freedom of Information and Privacy Association, Shannon Daub is Communications Director with the CCPA-BC, and Micheal Vonn is the BC Civil Liberties Association’s Policy Director. Together they co-published the 2010 study Election Chill Effect: The Impact of BC’s New Third Party Advertising Rules on Social Movement Groups.