political third party funding

What if Working Families and the teachers should win?

 

Downsides of the legalization of politics

 

 

 

Working Families Ontario is a not-for-profit organization, funded by unions, many of them teachers’ unions. It publicises what its clients think ought to happen or what should not be happening. The latter often involves sharp criticisms aimed at political opponents. This makes Working Families Ontario, in electoral politics lingo, a third-party interest entity, that is, a political entity which is not seen as a mainstream political party. It has been in struggle with the Ford government. It won a battle in a court of law which, for a moment, left Ford with egg on his face. The moment was short as the judicial decision was set aside by the legislature. Working Families was bloodied but remains unbowed. It has gone back to court looking for some more eggs to throw at Doug.

 

Good fun. But is it good politics?

 

1. The legal battle turns on an amendment made to financial spending laws by the Ford government. The Wynne government had enacted a limit on spending by third part-party interest groups. The Ford government thought the limits were too generous. It halved the amount third-party interest groups could spend.

 

2. Let me be clear. While the Ford government said it was doing it to advance democratic practices by making them fairer, that was not its motive. It has been on the war path against workers since its arrival at Queen’s Park. It did away with improvements to the Employment Standards Act, got rid of a pilot project on basic income, abandoned unannounced inspections in Long Term Care facilities, ignored workers at risk during the pandemic…One of the targets of its war on workers has been teachers and their unions. The teachers’ vigorous resistance, in part via Working Families, undoubtedly filled the government’s collective bosom with bile. This had much to do with its enactment of legislation which restricted the amount of money Working Families Ontario was going to be allowed to spend. But this is not how the government portrayed its spending limits. It depicted its iniative as a sincere effort to enhance democratic participation.

 

3. There is every reason to believe that teachers, their unions and Working Families Ontario wanted to stick it to Ford and his Minister for Education, Lecce. They hate them as much as they are hated by them. But they did not say that this hate motivated them. They, too, claimed that they were defending democracy. To defend it, they went to a non-elected institution, a court of law.

 

4. A single judge, Mr. Justice Morgan of the Ontario Superior Court, who had been a well-regarded lawyer and law professor, decided the case brought to him in favour of Working Families Ontario.

 

5. Morgan, J., accepted the claim that the Ford restrictions on how much third-party interest groups could spend on elections diminished their right to speak freely without justification. The law, therefore, violated section 2(b) of the Charter of Rights and Freedoms. To Working Families’ delight, Morgan, J., had held that the Ford government, by restricting the amount of money that could be spent on politics by a third-party interest entity, had unjustifiably constrained democratic freedoms.

 

6. Unfazed, Ford and his government rejected the decision. Underlining the fact that the people had given them a majority at the last election, they invoked a section of the Charter of Rights and Freedoms, section 33, the clause known as the ‘notwithstanding clause”, to declare that, despite (notwithstanding) Mr. Justice Morgan’s decision, the law he had held to be unconstitutional was to remain in force.

 

7. The uproar was instant and ferocious. A decision made by an independent, non-partisan judge, relying on non-political reasoning and principles embedded in the document that reflected Canada’s most cherished values, had been cast aside by the malign Ford forces. They had been enabled to indulge their arrogance merely by exercising the power given to them by the people of Ontario. How dare they?

 

8. Underneath all the noisy outrage, there may have been—there certainly ought to have been–some uneasiness. After all, the tricky Ford had used a provision of the very same precious Charter of Rights and Freedoms which, Working Families Ontario and its allies claimed, should have made Justice Morgan’s decision inviolate (except by more senior judges, of course!). Those with knowledge of the history of the birth of the Charter, however, remember that the notwithstanding clause was put in the Charter precisely because it was clear that most governments would not agree to the embedment of the Charter in the new Constitution unless they were given the power to override judgments made by courts which struck down otherwise valid legislation. This, the provinces had argued, protected their sovereignty from rule by unelected officials. It is not to be doubted: the existence of section 33 and its use to overturn judges is, according to the Charter itself, in keeping with electoral democratic principles. This has forced Working Families Ontario and its supporters to try to marginalize this well-known history and logic. They contend that, while it is true that the notwithstanding clause may be there for a good reason, it should only be used in extremis. The self-serving use of it by the Ford government was an abuse, an intolerable tyrannical use. The problem is that there is nothing in the Charter which even hints that this an acceptable interpretation of the notwithstanding clause. In the result, it is the Ford government that insists on using the Charter as intended to promote democratic practices and Working Families that the Charter should be read inventively. This has led to a curious legal and public relations battle.

 

Both sides contend that they want to enhance democratic practices. Both sides use this claim to pursue much less lofty goals: they are in a messy power struggle. The peculiarity is that in the faux “who stands for democracy” contest, the reactionary Ford government occupies as high, if not higher political moral ground than do Working Families Ontario and the teacher unions which fund it. How could this even be possible?

 

9. Working Families Ontario announced that it is going back to court to make another Charter claim. It is intent on making sure that an elected government will not be able to t[T]rump an unelected judge’s decision. In its turn, it intends to use the Charter to advance the cause of democracy.

 

10. What Working Families Ontario will invoke is section 3 of the Charter of Rights and Freedoms. This Charter provision explicitly states that no law may be passed by an elected government if it interferes with any Canadian’s citizen’s right to vote. The argument Working Families Ontario will make is that any law which restricts the right to vote seriously enough to make it less than a full right falls foul of section 3 of the Charter. Section 3 is to be found under a special heading: Democratic Rights. Its role in the safeguarding of democracy is being emphasised by specifying that no government may use the notwithstanding clause to reinstate a law that a court has determined to infringe section 3. That is, nothing can justify tampering with the right to vote. The argument by Working Families Ontario is that curbing the spending limits, as the Ford legislation does, stops voters in Ontario from exercising their right to vote as envisaged by the Charter. Their argument has changed from being one of a violation of the freedom of speech guarantee to one that this particular limitation on spending money for political purposes by the Ford government is an attack on the right to vote. Is it a good legal argument?

 

11. It has been tried before. The Canada Elections Act, had put new limits on third-party election spending. One of the legal challenges made to these restrictions relied, in part, on the application of section 3 of the Charter. In a decision handed down in 2004, the Supreme Court of Canada held that what section 3 envisaged was the right to vote in a meaningful manner. This, in turn, required that citizens should be able, as much as practically possible, to exercise their votes in an informed manner. As some people have more resources than others, this might mean that there may be a need to restrict some use of resources to ensure others a roughly equal opportunity to speak and to be heard. What the Supreme Court of Canada held was that section 3 of the Charter permitted limits to be imposed to ensure reasonable equality to participate in the political discourse. It cautioned, however, that such limitations had to crafted so as to promote fairness. Limitations that, in a judge’s view, did not do so could be struck down. In the specific case before it in 2004, it held that the Canada Elections Act provisions were justified as acceptable limitations on third part election spending. How are Working Families Ontario and its allies likely to fare in 2021?

 

12. It is not clear. While, on its face, the 2004 decision seems to give the Ford government an advantage as it claims that reasonable limits had to be imposed to ensure meaningful voting, there is wiggle-room for any court minded to use it. The 2004 decision leaves it to the judges to determine whether a government has imposed limitations on funding which make the voting rules fairer than they otherwise would be. While the Supreme Court had said that the considerations of whether the Charter provision on freedom of speech had been violated were not the ones that applied to those to be applied when voting rights were to be considered, it does remain true that any court seized with the case being brought by Working Families will know that the Ford government spending law has been ruled to be in breach of freedom of speech. A judge pre-disposed to Working Families’ claims may feel more sanguine than she otherwise might be about holding a law, known to be a Charter violating one, an unfair one . That judges have undeclared predilections is no secret, no matter how lawyers and judges pretend otherwise. Thus, the case in which the Supreme Court of Canada made its decision on the Canada Elections Act in 2004, had arisen in Alberta. A local trial judge and the Alberta Court of Appeal decided that the law violated both freedom of speech and voting rights protected under the Charter. Might this have been connected to the fact that the case was brought by the right-wing National Citizens Committee, whose director of research at the time was one Stephen Harper, all based in Alberta? Judicial bias is a fact of legal life. It is important than to note that any court which is to hear the new case brought by Working Families Ontario will know that 4 judges in Alberta and 3 judges on the Supreme Court of Canada (the 2004 decision was not unanimous) considered restrictions on spending imposed at that time to be unconstitutional. Six Supreme Court of Canada held them to be constitutionally valid. There is plenty of wiggle-room. If that court also senses that the Ford government was really acting in bad faith, in vexation, rather than being motivated to enhance democratic rights of voters as understood by the Charter, it may well make a finding that the Ford limitation on third-party interest spending breaches section 3 of the charter. I hope this turns out to be the case. Given that the case has been initiated, this is the best outcome. More eggs will be splattered on Ford’s visage. More good fun. But what other outcomes will flow from a legal victory?

 

13. Working Families Ontario, acting on behalf of unions, will have endorsed a political principle embraced by the wealthy and their functionaries. It, like Stephen Harper, Doug Ford (who increased the amounts that can be contributed to mainstream parties!), Kathleen Wynne, Mr. Justice Morgan, the courts in Alberta and the Supreme Court of Canada, believes that it is right and proper for people to use their private wealth to gain advantage in the electoral democratic project. While in the Harper/National Citizens Committee instance, the argument mounted by these right-wing challengers was that government should not be allowed to impose any limits on private spending, Harper, as P.M., amended the Canada Elections Act a little but left restrictions on third-party interest spending intact. The ‘principled’ (and principal) ground of disputation, then, is about how much private money should political actors be allowed to spend, not whether any should. To wit: Working Families Ontario and the unions it serves complain that they are not permitted to spend enough. In essence, if they win, they will have won the right to spend $600,000 every 6 months, rather than a mere $300,000.

 

14. The peculiarity of that argument is that it is clear that, from a working class perspective, the less a role private wealth is allowed to play in electoral politics, the better it is for the property-less classes. It is the gradual loosening of rules which allowed wealth owners to get round the laws which limited spending on election campaigns that created the fertile ground in which the seeds for third-party interest politicking could be planted. From the ideal of the one person/one vote model, there has been a strong movement to the one dollar/one vote model. This is something the dominant class has always favoured. To it, being a minority, they need to curb the powers of the subjugated majority acting through legislatures with significant decision-making power. A system that depends on numbers, rather than money, is to be feared and, therefore, constrained. They act accordingly while pretending not to do anything of the kind.

 

15. Once private money is allowed to play a direct role, those with more money are in the box seat. This is uncontroversial. The Ford government’s main defence of its cutting down of the Wynne government’s largesse is that it is going to make it harder for the wealthy to outflank all others. The possible advent of developments akin to the democracy corroding PAC’s in the United States (strongly supported by the judiciary) had to be prevented, argues Ford (no doubt with his forked tongue in both his cheeks). The more private wealth can be used, the Ford government is saying, the more you imperil the one person/one vote regime. If this profoundly anti-democratic Premier can see (and hypocritically say) this, is it wise for any progressive organization to spend actual cash and much political capital to advocate that more, rather than no private money should play a direct and legitimated role in a polity aspiring to be a democratic one?

 

16. The riposte may be TINA. There is no alternative. Money cannot be taken out of politics. We live in a capitalist society. Capitalism uses hard and soft power to manipulate our institutions. The threat of a capital strike teaches our political parties not to cross certain lines; the internalization of the ideology that serves to maintain and perpetuate capital relations of production firms up those lines; politicians are rewarded and punished by the dominant class, causing them, all too often, to ignore the needs and demands of the majorities which elected them; revolving doors between private and public cadres and cronyism and lobbying, all make the notion of reaching for a richer, non-money driven, democracy a fantasy. Practical politics means that we have to accept all these distortions of democracy and just go with the flow.

 

If that is the riposte, what signal does it send to all those activists and progressives, likely including some of the sponsors of Working Families, who advocate democratizing the State and the economy? Are they being told they are not realists, that they are tilting at windmills? Realists use the tools available.

 

17. The quest by Working Families Ontario and its sponsoring unions to protect democracy from the reprehensible, but elected, Ford government’s tyrannical cut-back in allowable political spending, has caused them to take their battle to the unelected courts. It is the courts who are charged with interpreting and applying the Charter of Rights and Freedoms. They are staffed by people appointed by the State and it is their central task to maintain that State. They are chosen from the ranks of those who have always be unwavering in their support of the status quo. The history of the judiciary, therefore, is one of conservation of the dominant system of social relations. In a capitalist political economy they have to protect the structures and ideology of capitalism. Democracy has always had to take a back seat. Such democratic rights that have evolved had to be won by extra-legal struggle. The right to speak freely, to associate, to assemble, to free thought were necessary for the working class to get the franchise. They were not won in courts. The history of the judiciary is that it has stood for the privileging of private property right over all other rights; for preferring individual rights over collective rights. It has stoutly defended the structures and bolstered the ideology needed by the capitalist class. Workers’ needs have been subjugated to this broad mandate the judiciary has taken on. Three illustrations should suffice to make the point.

 

18. First: even though the Charter of Rights and Freedoms protects the freedom to assemble and the freedom to associate, it took the courts nigh on 25 years to acknowledge that the right to associate did include the right to bargain collectively and that, in turn, this does include the right to strike to a limited extent. While workers had won the right to unionize well before the birth of the Charter and had had them endorsed by elected governments a long time ago, the judiciary, true to its history, has been slow to accord those hard-won victories respect, precisely because they facilitate collectives and may harm private property owners.

 

19. Second: the Charter is only aimed at curbing governmental powers. It is an instrument designed to protect minorities against the potential excesses of elected politicians. Precisely because the judiciary is devoted to the defence of private property owners it will facilitate and legitimate the selfish use of property, it will allow economic coercion by private property owners to thrive. There is no need to spell out how this works itself out. The number of workers forced to compete with each other for jobs just so that they can feed, shelter and clothe themselves is a testament that daily economic coercion is legalized and legitimated every day. The Charter provides no protection. The common law administered by the courts provides no protection. Workers are forced into both extra-legal action and into using their numbers to win protective legislation, such as anti-discriminatory laws, minimum wages, limits on the hours of work.

 

20. Three: courts are assumed to be a stand-alone, non-partisan instituions where all will be treated equally. They determine whether one party has been wronged by another according to the way they see the law. The judiciary is not an institution where policy is to be made. Judges cannot, for instance, order that money should be spent on creating a public transport system or to provide shelters for the homeless, or order that rent controls be imposed. In short, they cannot give the working class what it needs most. The best that may be hoped-for is that some people will get some relief from wrongful actions or government oppressions which are held to be unconstitutional. Things are different on the other side of the fence. Remember here that the truly wealthy, those with the most economic and political power in the country, are a minority. As such they, too, are in a position to claim that governments have overreached and robbed them of their Charter rights. A significant point comes into view. What the courts can do is to say that governments have overreached when they impose some restrictions on private actors. This is what Working Families Ontario is claiming in respect of the third-party interest law. It wants the law that inhibits its use of property struck down. It is also what capitalists do when they challenge a government law that protects health and safety at work, or the public against toxic emissions or against the pollution of water basins by miners, etc. They are not asking the courts to give them something. What they want is a ruling which strikes down schemes that favour the non-capitalists. This the courts may do and often do with zeal, usually arguing that there has been an unnecessary fettering of the right to enjoy private property ownership to the fullest extent.

 

 How comforting is it that progressive activists are engaging in a politics that depends on this institution which is structured to advance the interests of the wealthy at the expense of all others? How comforting is it that progressive activists are relying on, and legitimating, reasoning which suits private property owners all too well?

 

            Summation

 

As I said, now that the action has been launched, I do hope Working Families Ontario and its allies win in court. It will be nice to see one of the more reprehensible governments we have had squirm a little. And it will be pleasing to have proved that nastiness and malice sometimes gets its ‘come uppance’. Good fun. But good politics? Not so much. A legal victory will re-enforce the very structures and ideas that keep the bad guys in command. The winners and losers in this legal battle will be seen to agree on the fact that private wealth and electoral democratic politics are compatible and that it must be left to unelected anti-working class courts to determine the scope and range of our democratic aspirations. A victory will also serve to heighten the respect that Working Families’ supporters will accord to the unelected judiciary which gave them what they wanted. This respect, in turn, will aid the judiciary as it pursues its historic role of protecting of individualism at the expense of collectives.

 

Harry Glasbeek

Toronto

19 July, 2021