A Code of Ethics or Code of Conduct for Political Parties as a Potential Tool to Strengthen Electoral Democracy in Canada
2. THE CONTEXT AND BACKGROUND TO THE DISCUSSION
Political parties have always been under pressure to change their organizational design and operational practices in response to changes on a number of levels:
- within society, including shifts in public opinion
- within the economy, including new technologies
- within the political system, including new dynamics and modes of competition for electoral success
Early in the 21st century, the forces driving change appear to be more intense and deeper in their impacts on how political parties conduct their activities. This means that the formal regulatory framework and the informal ethical expectations related to parties are likely to be tested and need updating on a more continuous basis. In the interest of space, four brief examples will have to suffice to support these points.
The first example is a shift in public attitudes toward political parties. Today, the public image and reputation of political parties and politicians are not as positive as we might hope. A 2011 opinion survey found that, of all the institutions involved in elections, political parties were the least trusted, with 56 percent of the respondents saying they had "not very much" or "no" confidence in the federal political parties. In contrast, Elections Canada was the most trusted institution, with 80 percent of respondents saying they had "quite a lot" or "a great deal" of confidence in the agency.Footnote 1 These findings are important to the later discussion of how adoption of a code might strengthen public trust in political parties and confidence in the integrity of the election and the wider political process.
The second example is the fundamental and ongoing changes in computer-based technologies and how these new technologies have driven and enabled new methods of campaigning for public office on both the national and the local levels. Computer technologies have been used increasingly by Elections Canada to deliver election services and by political parties to inform and persuade voters. However, these constantly changing technologies create opportunities to bend or break the rules governing elections or to undertake actions that are problematic on ethical grounds. The recent controversy over the use of computer-assisted misleading messages to voters is an example of the impact of new technologies, which are likely to change faster than the legal framework of the Canada Elections Act can be adapted. Further to this controversy, Bill C-23, the Fair Elections Act, passed by Parliament in 2014, added a series of provisions regulating the operation of voter contact services.
The third example is the continuously changing nature of the campaign process. From the early decades of the country up to the mid-20th century, elections were fought mainly at the local level. Volunteers provided the workforce for campaigns. Gradually, political campaigns became more national in their focus, were centralized in terms of direction and content, relied increasingly on paid professionals, used a changing array of techniques to map the contours of public opinion and, based on such data, developed increasingly sophisticated communications strategies to target their political messages at particular segments of the electorate. All parties began to conduct "opposition research" intended to identify the vulnerabilities of their competitors.
A fourth example involves political financing of campaigns. During the 20th century, campaigns became more expensive, and fundraising became a major form of competition among the parties. In response to this trend, the laws respecting the raising and spending of funds were strengthened to curb undue influence by wealthy donors and to encourage the development of more broad-based financial support for parties and candidates from all citizens. Major changes to campaign finance rules took place in 1974 and 2004 (Mowrey and Pelletier 2002; Spano 2006). The changes made in 2004 extended the coverage of the financing rules beyond parties and candidates to include leadership contests and local party associations. The same changes limited the contribution levels for corporations and trade unions to $1,000, and in 2007, organizational contributions were banned completely and a system of quarterly allowances came into effect, to be paid from the public treasury to registered political parties based on the number of votes they had received in the previous election. In June 2011, as part of the budget document, the government announced that the quarterly allowances paid to political parties would be gradually eliminated, a process that will be completed in 2015 (Jansen and Young 2011).
Under the Canada Elections Act, Elections Canada exists as an independent, impartial agency with a mandate to manage the conduct of the national election process. In addition to election administration, the agency provides education, information and support services to parties, candidates and voters (see Thomas and Gibson 2014).
Since 1920, when it was created, the Office of the Chief Electoral Officer has been responsible for the administrative and support functions involved with elections, together with administering the regulatory and compliance provisions contained in the various sections of the Act.
In 1974, the Office of the Commissioner of Canada Elections was created, with responsibility for enforcing the political finance provisions in the Act. In 1977, the compliance and enforcement authority of the Commissioner was extended to all regulatory provisions of the Act.
While this Office was located within Elections Canada, it operated on an autonomous basis, with its own budget and staff as well as the freedom to decide whether investigations would be conducted and whether prosecutions through the courts would take place. With the passage of the Federal Accountability Act in 2006, the Commissionerís authority has been limited to a recommendation to the Director of Public Prosecutions in the Department of Justice that a prosecution take place.
These arrangements changed as a result of amendments to the Act passed by Parliament in 2014 in the form of the controversial Fair Elections Act . Currently being implemented, the new Act relocated the Office of the Commissioner of Canada Elections to the Office of the Director of Public Prosecutions, which in turn is located within the Department of Justice. As noted later in this paper, the end to a unified, single-agency model for all related election management functions complicates the possible introduction of a code of conduct or ethics.
Another issue arising in the debate over the Fair Elections Act was whether Elections Canada should be granted a broader range of tools to promote and to ensure free and Fair Elections under the changed circumstances described above. Historically, Elections Canada has relied on the detailed, prescriptive rules contained in the Canada Elections Act, which prohibited certain actions. Ensuring compliance with the rules involved negotiation with parties and candidates, and, failing agreement on voluntary compliance, offences under the Act could be brought before the courts.
The Fair Elections Act added some new powers for the agency. For example, it provided Elections Canada with the authority to issue interpretations and opinions on new campaign techniques. However, the predominant approach contained in the revised Canada Elections Act remains legalistic, prescriptive and rigid in terms of limiting innovative approaches by Elections Canada to ensuring electoral integrity in a more complicated, dynamic environment.
A code of conduct or code of ethics for political parties is another policy instrument that might be used to promote integrity in the electoral process. International bodies, like the Organisation for Economic Co-operation and Development and the World Bank, have promoted codes as a mechanism to curb political corruption and to achieve good governance. The International Institute for Democracy and Electoral Assistance, an international think tank, has proposed a model Code of Conduct for Political Parties Campaigning in Democratic Elections. The code is described as "a set of rules of behavior for political parties and their supporters relating to their participation in an electoral process, to which the parties ideally will voluntarily agree; and which may subsequent to that agreement be incorporated in law." Footnote 2
A number of newer democracies have legislated codes of conduct (examples of countries with a code and links to online versions are available in Appendix A). In established democracies, where there is limited corruption of a serious nature as well as generally higher standards of integrity in the election process, there has been less pressure to adopt various types of codes governing political behaviour. Instead, it was assumed that political parties would be self-regulated and the political process would take care of misconduct by denying the offending parties and candidates access to public office. In some instances, political parties have acted without prompting from an electoral authority to adopt a code of conduct for their members. The Green Party of Canada, the Quebec Liberal Party and the Progressive Conservative Association of Alberta are examples of this type of initiative in the Canadian context. There may well be others, but they did not appear from online searches.
Most Western democracies have sought to prevent, detect and correct conflict-of-interest situations in which public office-holders, politicians and public servants act on the basis of private interest, particularly financial interests, rather than serving the public interest. In Canada, both the House of Commons and the Senate, along with all provincial and territorial legislatures, have adopted either a conflict-of-interest statute or a conflict-of-interest code, which is often part of the standing orders of the legislature. Conflict-of-interest commissioners are appointed to oversee the application of such codes and to respond to complaints.
It is worth noting that the commissioner for the House of Commons and the Cabinet has the title of Conflict of Interest and Ethics Commissioner, which implies a mandate that goes beyond legal issues related to conflict of interest to include broader issues of political ethics of office-holders.
Ontario was the first among the provinces to enact a conflict-of-interest statute back in 1989. In 1994, that statute was replaced with the Members' Integrity Act, and in 2010, the Act was amended to widen the range of activities it covered and to grant the commissioner greater authority.
Depending upon the jurisdiction, commissioners may either impose legal sanctions or make recommendations to legislatures or the prime minister in response to proven cases of conflict of interest. In an era of suspicion toward politicians, the reliance upon political remedies to deal with misconduct may not inspire as much public confidence as consequences determined by an impartial officer of the legislature or the courts.
For purposes of this discussion, it is important to note that conflict-of-interest rules seek to regulate the activities of legislators and ministers in order to prevent inappropriate private gain for them, their family or their friends arising from the performance of the duties of public office. This is a different focus from a code that seeks to deal with inappropriate conduct by parties, candidates and their supporters.
In Canada, the concept of a code of conduct for political parties and their supporters during an election period has received limited discussion, and Manitoba is the only jurisdiction that has actually adopted such a code, which is discussed below.
At the national level, back in 1991, as part of a wide-ranging report, the Royal Commission on Electoral Reform and Party Financing (the Lortie Commission) recommended that political parties adopt codes of ethics as a remedy to the concern that "where incidents of misbehaviour arise, parties have been reluctant to assume responsibility for reviewing and revising the practices that gave rise to the allegations."Footnote 3 The commission recommended that each registered party be required to adopt a code and to set up an ethics committee to help promote and ensure adherence to the code. The recommended code would apply only to the official campaign period. In six pages of analysis, the report set out the arguments in favour of such a code. Those arguments reflected a background research paper prepared by Janet Hiebert and the discussions arising out of a symposium on political ethics.Footnote 4 The recommendations for a code were not accepted by government or acted on by Parliament.
The concept of such a code was also considered in British Columbia in April 2004 within the Elections Advisory Committee of party representatives convened by Elections British Columbia. The Chief Electoral Officer of the election agency raised the possibility of a code as a response to ethical concerns raised by the public. It was agreed that before the 2005 general election, the party leaders would provide the name of a contact person who would be responsible for resolving ethical concerns. It was also agreed that the possibility of developing a code of conduct would be revisited following the 2005 general election. However, the idea was never adopted in the province.
To date, Manitoba is the only Canadian jurisdiction with an actual code. A Shared Code of Ethical Conduct was adopted on a voluntary, all-party basis following the recommendation of a judicial inquiry into a vote-rigging scandal in the 1995 provincial election. Elections Manitoba played a key role in developing the code and securing the commitment of all parties. A draft code was prepared by Elections Manitoba and was reviewed by the parties. Based on their comments, the proposed code was revised. Once one or two parties had agreed to the draft, there was pressure on the others to agree. The code came into effect on a staggered basis, as each political party opted in to its provisions. By consenting to adhere to the code, all parties and a wide range of other actors in the electoral and wider political processes are committed to act in such a manner as to maintain and to enhance "public confidence in the integrity of the political process."Footnote 5
Several passages in the Manitoba code (see Appendix B) imply that its application goes beyond the campaign process to include the more general political process. Such wording might be read to imply that the drafters of the code believed it was artificial in an era of permanent campaigning to draw a line between a campaign and a non-campaign time period. The adoption of fixed-date elections in Manitoba (Canadian jurisdictions, with the exception of Nova Scotia, Nunavut and Yukon, have gone to fixed-date elections) has created an incentive to begin campaigning before the official campaign period begins in order to avoid certain restrictions under elections law that apply during the official campaign periods.
The Manitoba code is administered and enforced by the parties, and there is no public reporting of how they educate members about its provisions, receive complaints or deal with violations. There does not appear to have been any evaluation conducted on the impacts, either positive or detrimental, of the code within the Manitoba political system.
More recently, the concept of a code has been raised again at the national level. In his report to Parliament on the administration of elections, the Chief Electoral Officer of Canada considers not just compliance with legislation but also broader principles of electoral integrity. After the controversy and investigation into the use of robocalls during the 2011 general election, the Chief Electoral Officer raised the possibility of a code in his report titled Preventing Deceptive Communications with Electors, released in March 2013. The concept had been recommended by a panel of experts consulted during the preparation of that report (Elections Canada 2013, 7).
The Chief Electoral Officerís recommendation to Parliament read as follows: "Consideration should be given to the development of codes of conduct applicable to political parties, their officials, candidates, other affiliated entities such as electoral district associations, and active supporters. These codes would be developed by the parties, with Elections Canadaís assistance if required (Elections Canada 2013, 30).
This brief, comparative survey of debates over a code of conduct for political parties suggests that adoption represents a controversial development to which there is likely to be some resistance, particularly from the political parties, their leaders and their supporters. Controversy reflects the fact that such a code has advantages and benefits but also has disadvantages and costs. The next section discusses these issues in the abstract, and later sections discuss operational features of a code that will influence acceptance or rejection of the idea. As mentioned above, codes of conduct and/or codes of ethics are now widely used in various parts of society. Their emergence in the political domain is more recent and controversial. This is not the place to review at length or in depth the debates over codes in the political world. Instead, for purposes of providing a foundation for the subsequent discussion of the issues related to development, content, application and implementation, the advantages and disadvantages of a code will be enumerated in point form without much elaboration.
Return to source of Footnote 1 Institutions included Elections Canada, the legal system, local candidates and federal political parties. See www.elections.ca/content.aspx?section=res&dir=cons/sece&document=p8&lang=e
Return to source of Footnote 2 International IDEA,Code of Conduct for Political Parties Campaigning in Democratic Elections, 1999, 7.
Return to source of Footnote 3 Canada, Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy, vol. 1 of Reforming Electoral Democracy: Final Report (Ottawa: Communications Group, 1991), 285.
Return to source of Footnote 4 Janet Hiebert, ed., Political Ethics: A Canadian Perspective, vol. 12 of Research Studies: Royal Commission on Electoral Reform and Party Financing (Toronto: Dundurn Press, 1991).
Return to source of Footnote 5 Elections Manitoba, "Shared Code of Ethical Conduct," 1999.