Careful what you wish for, Prof. Mendes -

Careful what you wish for, Prof. Mendes

Colby Cosh on how we might as well go ahead and hold the funeral if democracy is so easily buyable


Rebecca W/Flickr

Political newspaper accidentally unearths a breaking story, as liberal law professor Errol Mendes uses its electronic pages to praise the U.S. Supreme Court’s Citizens United decision. In Citizens United SCOTUS ruled that campaign-finance law must treat corporations, unions, and other groups as though they have the same speech rights as the individual people of which they are made up. The American left cannot mention this heinous act of pro-corporate radicalism without ejecting a fount of furious spittle; the “repeal” of corporate personhood is, for example, the first and foremost demand of the Occupy Wall Street protesters and their allies elsewhere. President Obama memorably denounced Citizens United from the podium, staring the nine justices right in the eyes, in his 2010 State of the Union address. But Mendes apparently thinks corporate speech is an “important form of political expression” and that it may be protected by our Charter. Damn, Canada really is moving rightward!

Mendes argues that the public per-vote subsidy to Canadian political parties is a “trade-off” necessitated by the Chretien government’s cutoff of corporate and union donations. He thinks that the Harper government is moving slowly on eliminating the subsidy in order to avoid a constitutional challenge. It is not clear to me, from his argument, how that would help. When the money eventually runs out, anybody with standing will still be free to sue—though that would be a hard thing for a political party as such to do, since they do not enjoy the same kind of corporate legal existence as a company, a partnership, or labour union. (Parties are very quick to avail themselves of this elusive quality when someone tries to sue them.) It is not even clear how it was really a “trade-off” to quash the speech rights of corporate beings and give a bunch of money to political parties: what did the corporations and the unions receive in exchange for their loss of political power?

The most revealing part of Mendes’ argument comes at the end, where he treats the Conservative power to fund-raise among individuals as some inherent, unearned endowment of the party, as opposed to an actual expression of democracy:

The introduction by stealth of the phased reduction could be an attempt to undermine […] a constitutional challenge. However, if the lower levels of the subsidy result in a grossly unbalanced Canadian democracy, where the much deeper war chests of the Conservative Party amounts to buying successive elections through saturation levels of attack and other ads, the ending of the constitutional trade-off even with the phased reduction could well be litigated in the courts. Democracy in Canada could die a slow death as a result of the actions taken by Stephen Harper to financially suffocate the main opposition parties that could topple his government.

He offers no evidence that elections can be “bought” by sheer volume of media purchasing, for the very good reason that the whole idea is demonstrable nonsense. But even if it were true, wouldn’t the natural answer be for the non-Conservative parties to go out and hunt for the same individual donations that the Conservatives gather in such overwhelming quantities? It’s not a structural problem with our democracy that lots of people give small amounts of money to the Conservatives, and don’t like to give it to the Liberals, at all, or to the New Democrats, quite as much. Things could change as sentiment changes and the Conservatives bear the burdens of power. Given time, they are certain to change.

I’m confident Mendes does not really believe that Canadian democracy is in danger of a “slow death”. That is merely the kind of thing hysterical Liberals say when what they’re really concerned about is their party going the way of the British Liberals. (Democracy in the UK survived, somehow.) If democracy really has the slow-moving, predictable, easily buyable character Mendes ascribes to it, we might as well go ahead and hold the funeral.

The funniest response to his concerns, of course, would be for the Conservatives to accept his “tradeoff” theory and let corporations back into the funding of federal electioneering, precisely in accord with Citizens United. Does he suppose corporate Canada would go running back to the Liberals now? Or would the individual-donor advantage that the Tories now enjoy be enormously magnified?


Careful what you wish for, Prof. Mendes

  1. ‘is, for example, the first and foremost demand of the Occupy Wall Street protesters’?

    Mmmm noop. They have made no demands…this is a deliberate policy of the Occupy movement.

    So there’s no sense listening to people who just make up demands and attribute it to the protestors. 

  2. Anyone know the percentage of the Cons donations that are made anonymously? 

  3. Can you read Cosh? I think that the Citizens United decision is the terrible result that the full public subsidy was designed to avoid. The piece argues that the two year phase out is too short for the opposition parties to be on even level with the Harper conservatives. This is where the unfairness and possible constitutional issue may arise. 

    • The piece argues that the rights upheld by Citizens United are genuine, substantial, and widely protected elsewhere. I can’t find anything against Citizens United, by implication or otherwise, in there.

  4. The important thing to remember is that if the Conservative Party of Canada is doing well, then there must be something wrong with the system.

    • If it ain’t gonna make them broke, don’t fix it.

  5. “The introduction by stealth of the phased reduction could be an attempt to undermine such a constitutional challenge.”

    I read article earlier today and thought it was moronic. Since when is it ok to break constitutional law if you do it ‘by stealth’ and slowly over the course of a couple of years? 

    I assumed Harper phase it in over two years to give parties a chance to get financial affairs in order – a lot of money to lose suddenly. Maybe parties used political subsidy as collateral to borrow money for elections and need time to pay back loans.

    Maybe Liberal and NDP supporters should try to identify what exactly is stopping them from supporting their party and why aren’t Con supporters affected in same way. 

    I have read a few rumours over the years about a supposed conversation between Layton and Harper way back when about how to replace the Libs. If plan exists, I assumed they use UK as example of where it goes back and forth between Cons and Labour and Libs = snobs and other oddballs who don’t fit in anywhere.

  6. Yep, hysterical Liberals, lol.   Don’t see corporations ever getting back into the funding of federal electioneering with this government.   
    Democracy at work with our neighbours to the south:
    “They might not be among the jobless protesting against Wall Street, but the rich are angry, too. Furious over U.S. government gridlock, the wealthy have their own form of protest: Refusing to make political contributions.”

  7. My name, Blair T. LONGLEY, appears on this list twice:

    Major Court Cases Relating to the Federal Electoral Legislation

    My current work on the political tax credit potential is here:





    The SCC and USA SC have very different precedents on political funding issues.

  8. When large numbers of people made small donations to the Obama campaign in 2008 it was seen as a positive sign for democracy in America. When the same thing happens for the Conservative Party of Canada it is seen as part of some nefarious plan.

    With that sort of thought process, I can see why the Liberal Party of Canada is in dire straits. They’d be better off looking in the mirror and asking themselves why almost 80% of Canadians rejected their platform and why even fewer feel inspired to offer their hard earned money to the cause.

    Forcing the Canadian tax payer to subsidize political parties is not a right guaranteed to political parties in the Charter of Rights and Freedoms. Mendes’ suggestion that it is a Charter issue is absurd.

    • Fine. Let us also remove the tax credits for donations. See how Steve likes that.

      • Exactly. If we’re not going to subsidize the poor’s involvement, why in the hell would we subsidize the affluent?

        Makes no bloody sense at all.

        • Careful what you wish for? While this would hurt the Cons in total money earned, it would prevent the Libs from ever raising enough to compete or even stay afloat. Right now, NDP and Libs need to keep the total pie as big as possible even if Cons are getting a big chunk of it.

    • While I actually think it’s a positive sign that the Conservatives have managed to engage so many people, I still don’t like the fact that the government so heavily subsidizes those donations.
      I mean it’s quite convenient that they kept the subsidy that benefits them most relative to their competition wouldn’t you say?
      From my perspective the per-vote subsidy was a way to equalize the playing field for that portion of society that cannot reasonably be expected to be able to donate even $100 to a political party. This was the only money representing them in this aspect of politics.
      Basing party strength strictly on affluence doesn’t seem balanced to me, so I would’ve preferred if they kept the per-vote and ditched the donation subsidy.
      I think that would’ve been a more fair balance all in all.

  9. “He offers no evidence that elections can be “bought” by sheer volume of media purchasing, for the very good reason that the whole idea is demonstrable nonsense.”

    Ah, the liberation of single data-point science.
    Smoking and lung cancer?  Demonstrable nonsense.

    • Wow, what an amazing analogy.

      How about peanut butter and chocolate?   If Reese’s Pieces taste so good, it must be possible to buy an election.  Obviously.

      • For your sake I hope that your comment reflects only a lack of sobriety.

        But I can provide you with a “Reese’s Pieces” analogy (in the form of a the kind of question that might appear on an IQ test):

        That I don’t like “Reese’s Pieces” proves that I don’t like the combination of peanut butter and chocolate.
        True or false?

        • All we know is that you’re an idiot.

  10. One would have thought that Errol would have learned his lesson after his outrage at the “Taliban Shoe Clubbing Incident”.

    At that juncture he felt that there was some neferious plot to deprive the Liberals of sufficient information on the “War Crimes’ committed by our troops.

    Best that Errol be described as Allen Rock’s go to boy when the libs are slipping in the polls, and based on the last election he’s gonna be horrified for decades.

  11. The answer is to also eliminate the 75% tax write-off for political donations.  Why should taxpayers subsidize political parties at all? If people want to give to a political party, that’s fine, but they shouldn’t get 75% back on their tax sheet.

    • That’s not going to happen – this isn’t about principle, it’s about destroying the enemy.The tax deduction benefits the Cons the most. 

    “The phased reduction, rather than the total elimination of the public subsidy in Bill C-13, could be the realization that limited forms of financial contributions to political parties by trade unions and corporations are a form of political expression that may be protected by our own Charter of Rights and Freedoms — and indeed by other entrenched rights documents around the world. In January 2010, the U.S. Supreme Court in the Citizens United decision ruled that “political speech is indispensable to a democracy, which is no less true because the speech comes from a corporation,” thereby allowing corporations to engage in unlimited third party political spending in elections.”

    Aren’t you being a little obtuse here CC, although EMs could have been a little more transparent in what a “constitutional trade off” is and who is meant to be the beneficiary, not soley or directly the corp/unions as you imply. If the libs and dippers were previously receiving much of their funding from corprate and union donations, and if as EMs clearly argues both parties were way behind Alliance/Reform/CPC interms of raising individual donations, it must follow that an immediate switch to an ID funded system would heavily favour the cons and to some degree deprive corps/unions of their right to express themselves via donated funds. The trade off is here. The subsidy was a way to make sure opposition voices were not immediately unduly restricted – at least in the short term. The trade off was for the body politic not something that simply conpensated corps/unions for loss of political influence; admittedly it is a bit of a tenous arguement as EM puts it, but the aim was fine – to provide some sort of democratic financial compensation to the opposition parties who weren’t great a raising private monies.
    To use a simplistic illustration: Would you feel comfortable with a scenario down the road where the opposition parties continue to not be anywhere near as effective at raising funds as the incumbents[ which does play a part]? Let us say they fail to match 50% or more of the CPC funding. Do we now equate that with simply the fact that their ideas failed to catch on and you can’t fault the tories for being successful? So hard cheese. Have  we then finally come full circle and simply reconflated money and politcs? I raised more bucks then you therefore i must be more politcally legit, and get to exercise my right to grind you into the ground by outspending massively during and before any election.
    EM’s main point as far as i read it seems to be the subsidy was meant to be at the vey least a breathing period for the libs/ndp to catch up to the Tories in fundraising. It is possiblle to argue that the phase out will by setting a deadline spur the opposition parties on, or that the transition period is just too short given the Alliance/refrom/CPC’s long lead time; in which case there might well be a charter challenge.