Well, the writ’s been dropped and this Environmental Law Alert post is brought to you by the West Coast Environmental Law Association, sponsor under the Elections Act. You’ll notice a message to that effect on the bottom of all posts for the coming weeks. We’ve registered because of the possibility that environmental and legal commentary by the West Coast Environmental Law Association might be interpreted as election advertising under the broad definition found in BC’s Elections Act. Some other environmental organizations will not be posting fresh content during the election period at all.
I received an email the other day from a long time environmental activist who had only just heard about the third party election advertising rules under the BC Elections Act, and was frantically trying to figure out whether and how it would affect his organization and its work. I realized that perhaps we should have blogged about these provisions – and their impact for public debate – weeks ago, when we at West Coast were trying to figure out ourselves how they applied to us.
What is elections advertising?
The BC Elections Act regulates third party elections advertising – requiring people who pay for elections advertising to disclose the sources of their funding. On one hand this makes total sense. We all recognize that large, moneyed interests shouldn’t be able to purchase elections ads and not say whose interests they’re representing.
But there are at least two problems associated with the BC Elections Act approach for those of us engaged in non-profit work.
First, the definition is so broad that it can capture our regular, non-elections communications. The definition of “Elections Advertising” in the Act reads, in part:
… transmission to the public by any means, … of an advertising message that promotes or opposes, directly or indirectly, a registered political party or the election of a candidate, including an advertising message that takes a position on an issue with which a registered political party or candidate is associated … [Emphasis added]
Read that part in bold. Our sister organization, the West Coast Environmental Law Research Foundation, has been working on tar sands tankers and pipelines issues for years. Relatively recently, it has become a hot issue among BC’s political parties. (The Conservatives are for tar sands pipelines, the Liberals may be for them if certain conditions are met, the NDP is against the Enbridge Pipeline, but undecided in relation to other pipelines, and the Green Party is opposed to them). And now, suddenly, anything that the Research Foundation says about pipelines and tankers is potentially election advertising, even if it is not aimed at influencing the results of the election.
Now there are some important exceptions. The following are not election advertising:
- individuals expressing their personal views (so feel free to discuss the election and important issues of the day with whomever you like);
- the publication of news, opinion, etc. in a “bona fide publication” (including organizational e-newsletters published on their regular schedule during the campaign period);
- transmission of a message to an organization’s “members, employees or shareholders” (however, we understand that Elections BC takes the position that “members” may not include donors or supporters who are not actually members as set out in a society’s by-laws);
- the commercial sale or advertising of a book if the book would have been released even if there were no election; and
- transmitting press releases directly to journalists (although Elections BC apparently feels that posting those releases to a website or making them publicly available may be election advertising).
If an organization fails to register as an advertising sponsor, and does something that is deemed to be elections advertising, it could face as much as a $10,000 fine or 1 year in jail.
And if the organization registers as an advertising sponsor?
Well, there are limits on the amount that can be spent. But the big problem for most non-profit organizations is the fact that the organization is required to disclose the names of everyone who has given a financial contribution (of $250 or more) during the election period and the previous 6 months (a total of 7 months) (unless the organization spends less than $500 on elections advertising). That’s not just donations that were for the purpose of elections advertising – all donations. Needless to say, no organization is anxious to subject their donors such an invasion of their privacy.
For more information on the third party advertising requirements and how they are being interpreted by Elections BC, see Elections BC’s Guide to Election Communications for Third Party Advertising Sponsors. If you are engaged in any activity which might be considered elections advertising, you will want to read this carefully. You may also want to consult with a lawyer, as some the material in the Guide reflects interpretations of the Elections Act that have not been tested by the courts and may ultimately be found to be overly broad.
Why is this a problem?
We do understand the value of regulating advertising that is intended to sway elections.
However, the BC Elections Act is prohibiting communications on broad public issues based not on whether those communications are intended to impact the election, but on whether the parties and candidates have taken positions on those issues. That goes too far. In our view, this is having a chilling effect on public discussion at the very time when we most need public discussion.
But also, the rules favour commercial interests and the wealthy over non-profits and other organizations that receive funding from broad and diverse sources.
This is because commercial interests can put commercial money into elections advertising, often lots of it from each company, and no private information needs to be disclosed. Take, for example, the Vote Mining Site, set up by the Mining industry for the explicit purpose of pressing candidates to promise to support the mining industry. It is authorized by “the Mining Association of British Columbia (MABC), the Mining Suppliers Association of British Columbia (MSABC), the Association for Mineral Exploration British Columbia (AME BC), and the Coal Association of Canada (CAC).”
We suspect that when these commercial organizations disclose their funding sources, it will be made up of mostly (perhaps entirely) BC’s major mining companies – the very companies that benefit from the site.
But a non-profit organization that depends on individual donations is being asked to disclose the names of a lot of individuals, each of who donated a relatively small amount of money ($250 over a 7 month period) with an expectation of privacy.
Furthermore, the Elections Act disclosure rules risk falsely implying that philanthropic foundations and individual donors who made contributions for specific projects or initiatives that have nothing to do with the election are trying to influence election results (since the rules force disclosure of all donors who meet the threshold regardless of whether their funds were actually used for election advertising).
That means that the Act impacts grassroots organizations who rely on donations and grants differently and more than it impacts commercial interests.
Conclusion
Clearly regulating election advertising is a positive goal, but does BC’s Election Act strike the right balance? We don’t think so, but what do you think. Tell us in the comments section, below.
By Andrew Gage, Staff Lawyer
This post is authorized by the West Coast Environmental Law Association, sponsor under the Elections Act, (604)684-7378.