3. Pre-Registration of Candidates – Meeting New Challenges: Recommendations from the Chief Electoral Officer of Canada following the 43rd and 44th General Elections
The Elections Modernization Act extended the third-party registration requirement to the pre-election period when there is a fixed-date general election. This change reflects the reality that political campaigns are not restricted to the election period. Placing limits on third party spending during the pre-election period prevents third parties from being used during this time to circumvent the spending limits imposed on registered parties.
However, a regulatory gap exists when it comes to potential candidates. A "potential candidate" is a person whose nomination has not been confirmed, but who has been selected in a nomination contest, is a member of Parliament or has the support of a registered party to be a candidate. Potential candidates cannot register (i.e. be nominated) until after the election period begins, and they are explicitly excluded from the definition of "third party."
If a potential candidate subsequently becomes a confirmed candidate, their financial transactions and expenses during the pre-election period (and the election period up until their candidacy is confirmed) are regulated retroactively. If, on the other hand, they do not become a confirmed candidate, there is no transparency or oversight with respect to their financial activities, even if those activities had the purpose of promoting or opposing a political party or candidate. In effect, they will have been able to spend as a third party without any third party rules applying to them.
Allowing candidates to pre-register would provide a solution to this gap in the political financing regime. The opportunity to pre-register would need to be accompanied by a change in the definition of "third party" during the pre-election period. Individuals who do not pre-register as a candidate but carry out financial activities during the pre-election period would be treated as third parties and would be required to register as such if they meet the registration threshold.
In addition to closing a regulatory gap, there would be other important benefits to the pre-registration of candidates, especially for independent candidates or party candidates in electoral districts where there is no active electoral district association. Pre-registered candidates could be allowed to issue tax receipts for contributions from the time they pre-register. This would facilitate the ability of candidates to compete on a level playing field in the period before the issue of the writs.
Pre-registration would also allow Elections Canada to make candidates aware of their obligations and to assist them with compliance earlier in the electoral process. For example, candidates could be informed early on about their obligations to appoint an official agent, open a bank account and issue receipts for all contributions. This would mitigate the possibility of unintentional non-compliance that can occur under the existing rules when an individual is retroactively deemed to be a candidate from the moment of their first financial transaction. In addition, pre-registration could potentially reduce the pressure on campaigns and returning officers in the lead-up to the close of nominations (21 days before election day). Finally, pre-registration would provide assurances that all those engaged in electoral communications are governed by similar obligations and reporting requirements.
At present, once a candidate's nomination papers are accepted, the associated political party cannot withdraw its support. To facilitate pre-registration, parties should be given the option of withdrawing their support for a pre-registered candidate, up to a reasonable point before the close of nominations, and endorsing a different candidate.
Consideration could also be given to allowing a party that has become eligible for registration to become registered on filing its first pre-registration of a candidate. Currently, an eligible party may become registered only once it has nominated a candidate at an election. The benefits of registration include the ability to issue tax receipts, receive the preliminary list of electors and access the allocation of broadcast time by the Broadcasting Arbitrator.
In the year of a fixed-date election, pre-registration could take place during the pre-election period, or it could be extended to a certain time in advance. In other years, the timing for the pre-registration of candidates is less clear; individuals should not be entitled to remain pre-registered for years. The Act could perhaps provide a pre-registration mechanism that would require candidates to renew their pre-registered status after a certain period, absent an election call. This would also allow political parties to renew or repeal their endorsement.
In summary, creating a process for pre-registering candidates, specifically in the pre-election period of a fixed-date general election, would close an existing gap in the electoral communications regime. Other more substantial benefits could flow from a general process allowing candidates to pre-register at any time, such as an extended eligibility period for tax credits for contributions and greater financial flexibility outside the campaign period. Such benefits should be counterbalanced by obligations to ensure transparency (notably, increased reporting obligations). Finally, pre-registration of candidates would assist voters who wish to vote by special ballot to do so earlier in the election campaign and help reduce late mail-in ballots.
- To better ensure reporting of all expenses to promote or oppose a candidate or party during a pre-election and election period, allow a process for candidates to register with Elections Canada before the election period (either only in years of a fixed-date election or at any time with certain conditions). In addition, permit pre-registered candidates to issue tax receipts and make them subject to the regulatory requirements (opening a bank account, appointing an official agent, etc.) that ensure transparency.
- To respond to the possible hesitation of parties to pre-register candidates, allow parties to withdraw their endorsement of a pre-registered candidate up to a reasonable point before the close of nominations and endorse a new candidate for the same electoral district.
- To close a potential gap in the law, repeal the definition of "potential candidate" and amend the definition of "third party" so that "pre-registered candidates" are excluded from the definition.