Modernizing the Electoral Process – Recommendations from the Chief Electoral Officer of Canada following the 37th general election
To live in a democracy is to recognize the sovereign authority of the people. It is also to acknowledge that the people of a nation delegate that authority to a limited group of individuals to exercise on their behalf. These principles are inscribed in Canada's basic law. Canada's electoral history is punctuated by the efforts of succeeding generations to entrench these principles in the daily practice of political governance. Canadian society is not frozen in time. The conditions of democracy must be constantly rethought. At the beginning of a new millennium, one already marked by profound changes and challenges, we must find new civic connections that will ensure greater public participation in collective choices. The time has come to strengthen Canadian democracy.
The great revolutions that led to democratic modernity were, fundamentally, driven by the search for a fair balance between liberty and equality. This balance is difficult to achieve, but its value must always be measured against the ideal of democracy. As Ronald Dworkin points out in Sovereign Virtue: The Theory and Practice of Equality (2001), liberty and equality are not necessarily antithetical values; liberty can be considered a condition of equality. Thus, for example, limiting the freedom to spend on an election campaign promotes equal opportunity for all the participants in the electoral process.
Democracy, the basis of the Canadian political system, recognizes the intrinsic right of all citizens to participate in political governance through elections independent of their origins or social status. Democracy not only promotes respect for human rights, it contributes to their advancement. Notwithstanding American economist Kenneth J. Arrow's theorem that no voting method is capable of mathematically translating the electors' preferences, every electoral reform must be guided by the objective of strengthening democracy so that everyone can exercise their right to vote, and in an enlightened manner. Fair and equitable elections are an essential prerequisite of political legitimacy.
In my report on the 37th general election, tabled in March 2001, I announced that later this year I would be presenting to Parliament my recommendations for amendments to the Canada Elections Act. Those recommendations are the subject of this report. Taken as a whole, they are designed to ensure greater equality among all the participants in an electoral competition, to reinforce citizens' right to stand for office, to encourage electoral participation, to bolster the public's right to know with respect to electoral funding, to guarantee the independence of political parties and to protect privacy. Overall, they seek to clarify certain rules, define the roles of certain participants and modernize electoral administration.
These recommendations must be dealt with as a whole, because they proceed from the same basic principle: the public's right to know. This, in my opinion, is the basis of electoral democracy. Although each recommendation has its intrinsic importance, none of them, taken in isolation, can ensure the satisfactory application of this principle.
Some of these recommendations have been put forward in the past, in the Report of the Royal Commission on Electoral Reform and Party Financing (1992), in Strengthening the Foundation: Annex to the Report of the Chief Electoral Officer of Canada on the 35th General Election (1996), or in the Report of the Chief Electoral Officer of Canada on the 36th General Election (1997). Other recommendations are new. They are the result of various post-electoral consultations conducted with electors, candidates, political parties and returning officers and of comments from members of the House and Senate.1
This report also proposes measures designed to strengthen Canada's electoral democracy in light of certain difficulties encountered during the 37th general election. The recommendations it contains are not definitive, because they do not cover the entire range of reforms that might be considered worthwhile in the wake of that electoral event. This report does not consider a number of current circumstances for which it is not yet possible to formulate recommendations. This is true for issues that the Commissioner of Canada Elections is currently reviewing (such as the publication of election results), or matters that are before the courts (such as third party election advertising or the number of candidates required for a party to maintain its status as a registered political party).
What follows is an invitation to reflect, on a more comprehensive level, on the future of the Canadian political process. The time has come to fortify the inherent principles of Canadian democracy through efforts to:
- increase the effectiveness and accessibility of the electoral process for the electorate, candidates and political parties;
- favour the emergence of a context in which the electoral process will be fully competitive;
- markedly increase the transparency of election financing;
- reflect on the future of political representation in Canada.
Increasing the effectiveness and accessibility of the electoral process for the electorate, candidates and political parties
The right to vote and the right to canvass for votes are an integral part of Canadian citizenship. They are the fruits of long struggles to eradicate from the electoral process undue influence and power based on money. These rights are the basis of Canadian democracy. All those who meet certain minimum requirements, particularly with respect to citizenship and age, can vote freely in elections and run for a seat in the House of Commons.
Under the terms of the Charter, the rights to vote and to stand for office cannot be limited in any way that is not justified in a free and democratic society. Thus, except under exceptional circumstances, electors should encounter no obstacle to the exercise of their right to vote. Similarly, any person who believes that he or she can contribute to the vitality of democracy by running for elected office should encounter the fewest obstacles possible in the process and should receive adequate support from the State. It is in that spirit that the Canadian state, under certain conditions, reimburses part of election spending.
In this report, I am submitting to Parliament's attention measures that would strengthen guarantees for all citizens of the right to vote and to run for office, will fortify the right of electors and candidates to accurate and transparent information, will consolidate the integrity of the electoral process and reinforce the authority and autonomy of Elections Canada and election officers. Essentially, these recommendations are intended to improve the administration of the electoral process by streamlining it, by opening it up to the electorate, candidates and parties, and by making it more flexible and sensitive to a variety of circumstances – in short, by modernizing the electoral system.
Political parties are an essential element of Canadian democracy. They bring together individuals with common political aims who seek to rally the largest possible number of their fellow citizens to those aims. In this way, they contribute to the political education of the public; they offer answers to certain collective questions through their electoral programs; and, they stimulate political debate.
Political parties are better able to carry out their democratic function if they have the administrative capacity to do so, and if access to administrative advantages is equally available to all parties. With that in mind, I am recommending legislative amendments whose objective is to establish fairer rules for the parties and to enhance their ability to express themselves and to act. These measures would produce a certain amount of administrative streamlining and ensure the parties greater access to information.
Favouring the Emergence of a Context in Which the Electoral Process Will Be Fully Competitive
Electoral democracy is based on freedom of expression. Parties must be able to present their political objectives clearly and electors must be able to make an informed choice on election day. In this respect, greater political coverage – in particular, by an increasing number of radio and television stations, as well as the advent of the Internet – has strengthened Canadian democracy. Such diversified sources have created a much richer discursive political environment in which electors may exercise their right to information about political issues and process.
Not all political parties necessarily have the same resources and, consequently, not all have access to the means of communication that would allow them to explain and promote their programs. This adversely affects the public's right to know the range of ideas being offered by the parties – especially small parties with limited resources. Furthermore, participants other than parties and candidates enliven electoral campaigns with their ideas. These participants must be subject to the same rules as the parties, insofar as they too, have the ability to influence the vote.
In that spirit, I am presenting a number of recommendations intended to ensure fair electoral competition, to strengthen the ability of political parties to act and express themselves, and to enhance the public's right to know. These recommendations involve greater access to communication media for all parties and greater authority for the Broadcasting Arbitrator.
Markedly Increasing the Transparency of Election Financing
The State's participation in the financing of election campaigns reflects the desire to limit the influence of money on the outcome of the vote, a concern that has deep roots in Canadian electoral history. The advent of the secret ballot, more than a century ago, did a great deal to free the will of the people from the undue influence of money. Electors were, from that time forward, able to express their choices without fear of reprisal. Since then, a good number of related changes have been made to the electoral process to better reflect the evolution of Canadian society.
The public funding of election campaigns helps strengthen Canadian democracy by reinforcing the citizen's right to run for office. The possibility of canvassing for votes is no longer a privilege reserved for the well off, but a right guaranteed to all Canadians who believe they have something to contribute to political governance. The result is a wider range of candidates and ideas, thus guaranteeing real electoral competition.
Public financing of election campaigns also helps put political parties on an even footing, in particular by offering greater support to political entities whose means are more modest and whose electoral challenges are sometimes greater. In an electoral democracy, all political participants, regardless of the size of their organization, must be able to present and promote their ideas and their plans for governing.
In controlling the role of money, it is important not to impair freedom of expression or privacy. Thus, the existence of public financing in no way excludes private contributions from individual or organizational members of society. Donations of this type are important, when all is said and done, because they contribute to democratic vitality. They not only encourage wide and diversified public participation in the political process, they also contribute to the sense of belonging to Canadian society.
However, Canadian electoral democracy would benefit from greater control over contributions to election campaigns in the same way it benefits from limiting election spending. Some participants should not be more able, by reason of their financial capacity, to influence the outcome of a vote or the public decisions made. This is a desire shared by a clear majority of the population. Nearly two-thirds of some 3 600 people interviewed during the Canadian Election Study 2000 felt there should be a limit on how much one person or organization could contribute to a candidate or party. As well, elected officials must be protected from the power that money could exercise over their freedom of thought, decision and action. However, limitations on financial contributions to election campaigns must also respect the right to privacy. It is in that spirit that I am presenting not only recommendations aimed at enhancing the right to vote and the right to privacy, but also a number of recommendations intended to increase certain authorities and tighten certain controls.
Financial transparency is a basic criterion for measuring the health of the entire electoral democracy. The public has the right to know how candidates and parties are financing their electoral activities. For parties and candidates, transparency means the obligation to render account, and for the public it means having access to that information. This is a widely accepted principle among the electorate. According to the Election Study 2000, 94.2% of Canadians feel that the public has the right to know how political participants are financing their election campaigns.
Over the past 25 years, a number of measures have been adopted to improve the transparency of election financing. However, the Canadian political process is not static; changing circumstances have produced new challenges. In a society that aspires to the highest standard of democracy, the supervision of election financing cannot be limited strictly to election campaigns. It must be seen as a comprehensive system that involves all political participants and covers all phases of the electoral process.
At present, the financial operations of riding associations, which are distinct entities in the electoral process, and which make a significant contribution to the overall financial resources of political parties, are shielded from public scrutiny. These riding associations choose the candidates in federal elections. The public currently has no right to scrutinize the nomination campaigns of these candidates, some of whom will eventually sit in the House of Commons. The same is true of party leadership contests, which are major events in electoral democracy and yet are shielded from public scrutiny. Another area that currently escapes public scrutiny is the trust funds set up by parties, which are not covered by the provisions of the Canada Elections Act. Eliminating these historically opaque elements of the electoral process is a requirement for streamlining, modernizing, and thus improving the performance of that process.
Ensuring the transparency of election financing is a constant challenge in a democracy. The public has the right to know who has given to whom and how much in order to eliminate any doubt about the role that money plays in politics. Divulging the sources of financing can help restore confidence in the electoral process, particularly in a period in which the Canadian public is looking more critically at its representative institutions.
In closing, I want to thank in particular the members of my staff who worked closely on the writing and production of this report for their professionalism and their unwavering support during this process. I also want to thank Manon Tremblay (University of Ottawa) and James Sprague (Senior Counsel, Elections Canada Legal Services) for their invaluable co-operation in the preparation of this report and the following people for their helpful comments on an earlier version: Jerome Black (McGill University), André Blais (Université de Montréal), John Courtney (University of Saskatchewan), William Cross (Mount Allison University), Donald Desserud (University of New Brunswick), Joanna Harrington (University of Western Ontario), Michael Kinnear (University of Manitoba), Jonathan Malloy (Carleton University), Louis Massicotte (Université de Montréal), Réjean Pelletier (Université Laval), Donald Savoie (Université de Moncton), Alan Siaroff (Lethbridge University), Brian Schwartz (University of Manitoba), Jennifer Smith (Dalhousie University) and Hugh Thorburn (Queen's University).