Bill 307, which the Doug Ford government passed last spring by using the notwithstanding clause to override constitutional concerns, is a bad law. And the use of the notwithstanding clause isn’t the reason why.
Let’s dispense with the elephant in the room first: the law, which seeks to limit third-party spending before elections, is very broad; that’s why there were concerns about its constitutionality. It treats the entire 12 months before an election as a pre-election period, and the spending limit at which point an individual or entity must register as a third party engaging in advertising is very, very low — only $500. The law, though, is seeking to respond to a real problem. We do not live in an era where nuance is particularly valued by anyone, but some is called for here: Bill 307 is a bad law to address a genuine issue. Well-capitalized third parties (including simply wealthy individuals) funding large advertising campaigns can absolutely skew our democracy, especially when campaigns and personal and corporate donations are already tightly regulated. Loopholes will always exist, but they should be aggressively closed when possible. The fact that the provincial government had to use the notwithstanding clause to ram its law through doesn’t in and of itself make it a bad law — if it were a well-crafted effort to address a real, pressing problem, well, that’s what the notwithstanding clause is for, no?
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So let’s consider the two points above as granted: third-party election spending is an issue that requires oversight and regulation, and the use of the notwithstanding clause in and of itself does not mean that Bill 307 is a bad law.
No, the problem with Bill 307 is that it’s sloppy, vague, and obviously open to abuse, as a report published this weekend by the Toronto Star makes clear.
The Star describes how two community groups opposing a new jail in Kemptville were reported to Elections Ontario by Municipal Affairs and Housing Minister Steve Clark for having possibly violated the law, on the basis that their mailers and lawn signs were pre-election advertising in excess of $500. Elections Ontario cleared both organizations, finding no merit to Clark’s complaint.
This all seems rather banal, and it would be easy to shrug and move on without giving this matter a second thought. But this is actually a point that needs making: it takes a whole hell of a lot to get me on the side of NIMBYs, normally one of the more irritating groups of people in our society, but this is outrageous. Sending out mailers and putting up lawn signs are utterly routine parts of living in a democracy. The construction of a new correctional facility — sigh, I really resent being on the NIMBYs’ side — is also a textbook definition of a matter of local concern. Let’s be absolutely clear what happened here: a bunch of people got together to mobilize about an issue in their community. And they have every right, or should have every right, to do this, because this kind of grassroots mobilizing is the absolute lowest rung on the ladder of civic engagement.
All of us understand the danger big money can pose to democracy. It’s a multi-partisan issue, and I can prove that in just a few sentences. Hey, lefties? Do you want well-funded corporate interests to write huge cheques for advertising that will influence elections? No? Didn’t think so. Hey, righties? Do you want organized labour to be able to take mandatory union dues and write huge cheques for advertising that will influence elections? No? Didn’t think so.
See? This isn’t a left or right issue; this is a basic issue of any viable democracy needing a level playing field with clear rules.
Rules aren’t perfect! Even with the most exquisitely crafted law, there are always going to be borderline, marginal cases where making the right call will be tough, messy, and imperfect. It’s possible we’ll get some of those calls wrong!
But a good law keeps those messy marginal cases to the absolute minimum. A bad law … does not. More specifically, a bad law lets a sitting cabinet minister go after community groups doing the literal almost bare minimum level of civic engagement — barely above the rock-bottom level of sending a tweet or liking a Facebook post — and then lose. That’s maybe the most absurd part. The minister lost!
A law this vague and broad is a bad law, and the Progressive Conservatives should fix it and feel shame for having passed it in the first place. Not because it needed the notwithstanding clause, but because it sucks. The issue of maintaining a functional democracy is too important to be left to laws as bad as Bill 307.