From limiting big spenders to silencing small spenders

How BC’s third party election advertising rules missed the mark
October 25, 2010

The idea that everyone should be able to speak freely and that citizens should have access to a broad range of viewpoints are two fundamental principles of a democracy — and never are they more important than during an election. Yet many BC non-profit groups experienced a very different reality in the lead-up to the 2009 provincial election.
The culprit? Bill 42, enacted in 2008, introduced new rules governing third party election advertising – meaning advertising by individuals and groups other than political parties and candidates. The rules capped third party spending at $150,000 province-wide, and $3,000 within a single constituency.
According to then-Attorney General Wally Oppal, these rules were needed to create a more level election playing field, to prevent “the hijacking of the process by wealthy participants.” Bill 42 set off a storm of controversy, most of which focused on the implications for “big spenders” – those groups most likely to spend money on election ads, such as corporate interests and large unions.
In the lead-up to the election, however, we heard from several small charities and non-profits that they were struggling to figure out how the new rules would affect them, and in some cases were self-censoring as a result.
The problem is twofold. First, Bill 42’s definition of election advertising captures all kinds of activities most people would not likely think of as advertising, such as free or low-cost tools like websites, social media, email, petitions or public forums.
The definition of advertising also includes public communication that takes a position on any issue associated with a political party or candidate. Which in practice means just about anything under the sun.
Second, there is no minimum threshold below which a third party need not register with Elections BC. Even if a group plans to engage only in free or very low-cost activities, it must first register and be publicly listed on Elections BC’s website as a third party advertiser.
In practice, this means that in the lead-up to a provincial election, a group of citizens concerned about any number of public policy issues is required to register with Elections BC before it starts a Facebook group or distributes leaflets to neighbours, for example. And for non-profits, charities, coalitions and social service agencies, it means information and analysis of government policies long posted on their websites is suddenly redefined as election advertising when an election draws near.
In late 2009 and early 2010, we conducted research with 60 non-profits, charities, coalitions, unions and citizen’s groups to find out if the problems we heard about leading up to the election were more widespread.
Of the organizations that took part, about one third self-censored during the election campaign directly as a result of the third party rules, and not because they’d spent anywhere near the limits.
In six cases, groups kept their heads down because they did not want to be labeled as “advertising sponsors,” which they felt posed a serious risk to their non-partisan reputations or charity status. In other cases, groups had difficulty interpreting the rules and decided to err on the side of caution.
The activities these groups censored had little to do with commercial advertising. For example, nine groups did not post new materials on their websites during the campaign, and four went so far as to remove previously posted materials. Four refrained from issuing or endorsing a call for changes to government policy or legislation. Five avoided commenting in media stories. Four cancelled or decided not to proceed with public events (in two cases, these were all-candidates forums). The list goes on.
Other organizations did not self-censor, but diverted extensive time and energy to figuring out the new rules and second-guessing their actions. For groups with only one or two staff members, or no staff at all, this was a waste of precious resources.
The clearest indication that these rules missed the mark, however, comes from the 232 disclosure reports filed by organizations registered as third party sponsors for the 2009 election. It turns out that more than half of them spent a paltry $500 or less during the campaign, and more than three quarters spent less than $2,000.
The citizens of British Columbia were deprived of the full range of voices that would normally be heard during an election as a result of the new third party rules. Yet the groups most impacted by them – the small spenders – are also the least able to mount a costly court challenge. We need the provincial government to fix the law, and soon.
Shannon Daub and Heather Whiteside are co-authors of “Election Chill Effect,” released by the Canadian Centre for Policy Alternatives, BC’s Freedom of Information and Privacy Association, and the BC Civil Liberties Association.