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Electoral jurisprudence in the Canadian and U.S. Supreme Courts: evolution and convergence.

An ongoing theme in the study of American and Canadian constitutional law is the difference in the two nations' constitutional traditions and the correspondingly divergent paths taken by the two Supreme Courts when interpreting democratic rights. The authors argue that a convergence in the two nations' judicial thought has occurred in recent Supreme Court decisions dealing with voting rights in particular and with the electoral process in general This convergence is clearly manifested in lines of cases culminating in recent campaign-spending decisions in Canada (Harper v. Canada (A.G)) and the United States (McConnell v. Federal Election Commission and Randall v Sorrell). The two courts sustained campaign-spending restrictions for essentially the same reasons. Yet the dissenters in both courts expressed almost identical fears about the threats that such spending restrictions posed to the integrity of the democratic process. Thus, the complexities of the "political thicket" of election law have drawn the American and Canadian Supreme Courts together. Both courts acknowledge that competitiveness is a key component of a meaningful electoral process and that incumbent political powers may cloak barriers to competition in the mantle of legislation designed to reform the political process or make it fairer. This evolution and convergence in judicial thought has caused both Supreme Courts to reassess their roles as protectors of individual rights and checks upon their legislatures.

Parmi les themes recurrents du domaine du droit constitutionnel americain et canadien, on retrouve celui de la difference entre tes traditions constitutionnelles des deux etats, ainsi que celui des parcours divergents des deux Cours supremes dans leur interpretation des droits democratiques. Les auteurs suggerent que des decisions recentes rendues par ces Cours supremes revelent une convergence au niveau de la pensee juridique en ce qui a trait aux droits de vote en particulier, et au processus electoral en general. Cette convergence se manifeste clairement dans une foulee d'arrets cuhninant avec les decisions recentes traitant des depenses de campagne electorale au Canada (Harper c. Canada (P.G)) et aux etats-Unis (McConnell v. Federal Election Commission et Randall v. Sorrell). Les deux cours ont soutenu des restrictions sur les depenses de campagne electorale. Cependant, dans chacune des cours, la dissidence a exprime des inquietudes quasi identiques quant aux menaces a l'integrite du processus democratique que pourraient poser de telles restrictions. Ainsi, c'est la complexite de la futaie politique du droit electoral qui a su rapprocher les Cours supremes americaine et canadienne. Les deux cours reconnaissent que la competitivite represente un element clef d'un processus electoral convenable et que les titulaires du pouvoir politique peuvent voiler les obstacles a la concurrence par le biais de projets legislatifs axes sur la reforme ou l'equite du processus politique. Cette evolution et convergence de la pensee juridique a precipite un questionnement au sein des deux cours sur leur role au niveau de la protection des droits individuels et sur la necessite de mettre un frein au pouvoir legislatif.
Introduction

 I. Commonalities
 II. Terms of Discourse
III. American Individualism? The Canadian Understanding
 of Buckley v. Valeo
 IV. A Different Canadian Vision? The Egalitarian and Libertarian
 Conceptions of Democracy in Canada
 A. Background: The Egalitarian Mode in the Canadian
 Court
 B. The Development of the Egalitarian Model in the
 Canadian Court
 1. Libman v. Quebec (A. G)
 2. Figueroa v. Canada (A. G)
 3. Harper v. Canada (A.G): The Retreat from the
 Egalitarian Model?
 V. The Dark Side of the Egalitarian Vision? Chief Justice
 McLachlin's Break with the Court
 VI. An American Parallel: The Canadianization of American
 Electoral Law?
 A. Removal of Corrupt Influences
 B. Incumbent Entrenchment
VII. Implications and Conclusion: The Evolution of Chief
 Justice McLachlin's Vision of the Democratic Process
 and the Convergence in American and Canadian
 Judicial Thought


Introduction

An ongoing theme in the study of American and Canadian constitutional law is the difference in the two nations' constitutional traditions and the correspondingly divergent paths taken by their respective Supreme Courts when interpreting democratic rights. (1) American commentators such as Mary Ann Glendon commented early on that the Canadian Charter of Rights and Freedoms (2) "diverges in both letter and spirit from its American counterpart in important respects.... [It] has avoided hard-edged, American-style proclamations of individual rights." (3) As well, she observed that the framers of the Charter, in contrast to their American counterparts, recognized the importance of balancing individual and community interests. (4)

In some respects, the divergence of Canada from the United States is cast in terms of the natural, organic development of law. As the Supreme Court of Canada ("Canadian Court") stated in Law Society of Upper Canada v. Skapinker, "The courts in the United States have had almost two hundred years experience at this task and it is of more than passing interest to those concerned with these new developments in Canada to study the experience of the United States courts." (5) In other respects, however, the divergence represents a conscious attempt to take the jurisprudential road not taken by the United States and thereby establish a unique, Canadian approach to questions of rights in general and the electoral process in particular?

Within this context, scholars of election law have also emphasized the marked contrast of the Canadian experience and that of the United States concerning judicial oversight of laws regulating the electoral process. As John Courtney--one of Canada's leading scholars on election law--notes in much of his work, the differences are a product of the greater acceptance in Canada than in the United States of the responsibility of government to establish electoral practices that are nonpartisan and whose effect will be as widely inclusive of the citizenry as possible. (7)

A good example of the difference in electoral law concerns the approaches taken to "rep by pop" in the two Supreme Courts. In Baker v. Carr (8) and Reynolds v. Sims, (9) the Supreme Court of the United States ("American Court") established the "one person, one vote" standard. In Reynolds, Chief Justice Warren asserted that the American conception of the franchise would be based on the one person, one vote principle: "Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. ... Overweighting and overvaluation of the votes of those living here has the certain effect of dilution and undervaluation of the votes of those living there." (10)

The American Court's adherence to this individually focused principle (at least with regard to congressional districts (11)) has led to intractable, unproductive conflicts concerning the decennial redistricting process. Insofar as the court has endorsed the Justice Department's interpretation of section 2 of the Voting Rights Act of 1965 (12) (requiring states to draw districts in a manner that promotes minority representational opportunities), its adherence to the one person, one vote requirement has necessitated the creation of legislative and congressional districts whose borders can only be described as bizarre. (13) Since minority populations are not always located in geographically compact areas, the state legislatures (which are constitutionally empowered to draw legislative and congressional districts) have had to draw oddly shaped districts that snake around, picking up pockets of minority voters until they are able to construct a district with a "majority-minority" population.

A more moderate, balanced resolution to this conflict between group rights to representation and individual rights to equal voting power is found in the Canadian Court's decision in Reference Re Prov. Electoral Boundaries (Sask.). (14) Justice McLachlin (as she then was) dismissed the American one person, one vote standard for redistribution as "undesirable because it has the effect of detracting from the primary goal of effective representation." (15) She stated:
 Factors like geography, community history, community interests and
 minority representation may need to be taken into account to ensure
 that our legislative assemblies effectively represent the diversity
 of our social mosaic. These are but examples of considerations
 which may justify departure from absolute voter parity in the
 pursuit of more effective representation; the list is not closed.
 (16)


As a result, the Canadian process of drawing legislative district boundaries has been much less contentious and more consciously aimed at balancing individual and group claims to effective representation. (17)

Similarly, in Sauve v. Canada (Chief Electoral Officer), Chief Justice McLachlin distinguished the theoretical conceptions of rights that form the foundations for American and Canadian election law:
 [D]enying penitentiary inmates the right to vote is more likely to
 send messages that undermine respect for the law and democracy than
 messages that enhance those values. The government's novel
 political theory that would permit elected representatives to
 disenfranchise a segment of the population finds no place in a
 democracy built upon principles of inclusiveness, equality, and
 citizen participation. That not all self-proclaimed democracies
 adhere to this conclusion says little about what the Canadian
 vision of democracy embodied in the Charter permits. (18)


Finally, a more recent work on Canadian and American jurisprudence concerning campaign-spending limitations begins: "Opponents of the wholesale importation of U.S. political finance jurisprudence into the U.K. and Canada welcomed the recent decisions of the European Court of Human Rights ... and the Supreme Court of Canada in Bowman v. United Kingdom and Libman v. Quebec, respectively." (19) Janet Hiebert concludes a current piece on the Canadian Court's decision in Harper v. Canada (A.G) (20) with the following statement: "Until the majority Supreme Court ruling in Harper Canadian judges had become alarmingly close to the position taken by the US Supreme Court ruling in Buckley v. Valeo, which held the notion of fairness in elections as foreign to the constitutional values that underlie the political community." (21) The desire to distance Canada from the United States is palpable.

I. Commonalities

Despite these assertions of difference, the recent campaign-spending jurisprudence of both countries share important characteristics that manifest a common struggle to come to grips with intractable questions of electoral fairness. Both Supreme Courts have laboured to set forth a coherent jurisprudence of the electoral process with similarly unsatisfying results.

We argue that both courts are now trapped in what American jurists refer to as the "political thicket" of democratic rights. (22) The complexity of democratic theory strains the capacity of courts to develop clear rules or standards for managing--much less resolving--constitutional controversies concerning the scope and definition of the franchise or the rules by which the electoral process is administered or regulated.

The debates about the American Court's decisions concerning election law are voluminous. For our purposes, perhaps the most useful description of the American Court's decisions is Frederick Schauer's assessment that the court is tom between competing libertarian and egalitarian visions of rights and democracy. (23) Daniel Lowenstein contends that the American Court has no theory of politics--and it's a good thing. (24)

Andrew Geddis characterizes election law in both countries as "ambiguous". (25) Heather MacIvor suggests that the silence of both constitutions regarding the scope and definition of democratic rights has forced courts to navigate the terrain of election law without a compass. (26) Some scholars suggest that the Canadian Court has a bipolar conception of the Charter's subsection 2(b) free-speech guarantee as it pertains to the political process and, specifically, campaign-spending legislation. Jamie Cameron argues that the Canadian Court lacks a system of "rules or principles" and, as a result, subsection 2(b) jurisprudence is "capricious". (27)

Focusing on the Charter's section 3 right to vote, scholars such as Christopher Bredt and Markus Kremer contend that the Canadian Court's broadening of the scope of the franchise to include a right to "effective representation" or "meaningful participation" has come at the expense of doctrinal clarity and an inconsistency in the court's willingness to defer to the legislature's determinations of the scope of the franchise. (28)

In contrast, other scholars such as Colin Feasby, (29) Hiebert, (30) and MacIvor (31) argue that there is indeed a method to the Canadian Court's madness and that the Court has essentially subscribed to what Schauer describes as an "egalitarian" theory of politics. (32)

Thus, while Canadian scholars contend that the two nations' constitutional traditions are quite different, it is equally obvious from the scholarly commentary that election law in both countries is still evolving. We argue that the differences between American and Canadian electoral jurisprudence have been exaggerated. First, Canadian scholars have focused on narrow readings of particular Supreme Court decisions in both countries to construct what appears to be a vast difference in outlook with regard to the scope and definition of individual rights in general and voting rights in particular. We address these concerns more broadly in our more extensive work on this subject. (33) In this article, we focus on the Canadian scholarship concerning the two nations' campaign-spending jurisprudence and the vision of democracy that informs them.

Specifically, we believe that a convergence has occurred. Both Supreme Courts currently find themselves wrestling with the complexities of difficult political questions of democratic theory and engaging in the same debates about electoral fairness concerning spending regulations. While this has led scholars to disagree about whether election law in either country makes sense, we contend that election law has converged to a common point at which both courts may be abandoning a search for a particular theory and, instead, are turning to assess electoral-process problems in a much more pragmatic manner.

II. Terms of Discourse

In asserting that a convergence has occurred between American and Canadian electoral jurisprudence, we do not mean to suggest that the Canadian Court has become more individualistic in its outlook. If anything, we suggest that the American Court has not been as individualistic in its campaign-spending jurisprudence as Canadian scholars have suggested. Canadian scholars who would distinguish the two nations' approaches to election law have tended to place them at opposite ends of a continuum running from what Schauer describes as "egalitarian" to "libertarian" visions of rights. The egalitarian model is based on the assumption that "a state of affairs in which some voices may be more influential than others, or have more power in fact to produce political outcomes than others, is suspect." (34) It therefore endorses state action to balance political power and, if necessary, reallocate political resources. In contrast, the libertarian model "stresses the liberty dimension of democracy more than the equality dimension" and is "more skeptical of attempts to limit individual, organizational, or corporate use of wealth in political campaigns." (35)

While Schauer writes that American election-law jurisprudence embodies a tension between the two visions, Canadian scholars have argued that the United States has taken a clearly libertarian approach to election law (especially concerning campaign spending) and that Canada has taken the egalitarian road. (36) We believe that this characterization overlooks the complexities of both nations' election-law jurisprudence and is based upon correspondingly narrow readings of case law. In the same way as it is inaccurate to describe American voting rights law only in terms of the one person, one vote rule, (37) it is inaccurate to cast American campaign-spending law in terms of a narrow reading of Buckley v. Valeo (38) and to cast Canadian decisions such as Harper in strictly contrasting terms. (39)

The election-law decisions in both courts have in fact been conversations among the justices concerning (1) which of the many values that comprise democratic theory ought to be emphasized or promoted at the expense of others, and (2) how best to balance these values to ensure that voters can participate meaningfully in the political process. The debates within both courts have been essentially the same, and the outcomes, while sometimes different, have become increasingly similar.

We note as well that both courts have begun to discuss the problems of incumbent entrenchment and "lockups" of the political process in the context of campaign-spending cases. This issue has been more of a preoccupation in American election-law scholarship since John Hart Ely published Democracy and Distrust: A Theory of Judicial Review, (40) and it has been a recurrent subject of the writings of Samuel Issacharoff, Richard Pildes, Michael Klarman, (41) and their critics. (42)

These three scholars compare the political marketplace to the economic marketplace and cast incumbent entrenchment in terms of political monopolies and trusts. Issacharoff and Pildes call upon judges and scholars to develop prophylactic rules to get around the "stagnant discourse" (43) and "sterile balancing tests" (44) that they say have characterized American election-law jurisprudence, and to develop a process-based approach to election law that would be premised on the promotion of robust competition among political actors (45) and would establish a firm set of rules for keeping the political process open. While there has been a spirited scholarly debate about process-based theories of judicial review, the threat of a political lockup posed by campaign-spending restrictions was a relatively minor concern for the American Court until its most recent decision in Randall v. Sorrell. (46)

But, we note that the Canadian Court has also evinced an increasing suspicion of legislative attempts to control the political marketplace. This is evident in its decisions in Libman and Figueroa v. Canada (A. G), (47) and especially in Chief Justice McLachlin's dissent in Harper. We take special note of her dissent in Harper because (1) it is the first time in the Canadian Court's nine decisions concerning election law that Chief Justice McLachlin did not vote with the majority, and (2) her dissent is cast in terms similar to those that comprise the entrenchment/lockup discussion in the United States.

We suggest that Chief Justice McLachlin plays a pivotal role in the Court's development of election law because she seems to have seized upon the political marketplace metaphor. Accordingly, we show that she maintained a consistent position in Libman, Figueroa, and Harper, despite the fact that she was not in the majority in the three decisions. In all three cases, she opted to invalidate legislation that, under the guise of enhancing the equality or fairness of the political process, worked to make the process less fair. Thus, while Cameron or Bredt and Kremer suggest that the Court is inconsistent, we observe a consistent evolution of at least Chief Justice McLachlin's approach to election-law issues and deference to the legislature.

Accordingly, an important division now exists within the Canadian Court concerning the role of the government in setting standards for electoral fairness. In our view, Chief Justice McLachlin (joined in Harper by Justices Major and Binnie) now acknowledges that the government may, under the guise of promoting fairness and equality, act surreptitiously to insulate itself from competition and accountability. Accordingly, the Canadian Court has backed away (at least partially) from the egalitarian vision that Feasby had described as informing its campaign-spending decisions. In fact, Feasby has recently qualified his assessment of the Canadian Court's promotion of the egalitarian model, acknowledging that it can be used at the expense of political competition. (48)

The American Court has experienced a similar transformation. We turn now to discuss the American Court's campaign-spending jurisprudence and how Canadian analysts have miscast it. We note that in two of the American Court's recent campaign-spending decisions, a majority endorsed spending restrictions for essentially the same reasons the Canadian Court used to sustain them in Harper. As well, the dissents in McConnell v. Federal Election Commission (49) parallel Chief Justice McLachlin's dissent in Harper and her concerns about entrenchment. In the American Court's most recent campaign-spending decision, Randall v Sorrell, the court struck down several spending restrictions passed by Vermont in part because they posed a threat to electoral competitiveness and government accountability. (50)

III. American Individualism? The Canadian Understanding of Buckley v. Valeo

In the same way that Canadian scholars and jurists defined the Canadian Court's approach to voting rights and felon enfranchisement in terms of the path not taken by the American Court, Canadian analysts of campaign-spending decisions in the two nations have similarly cast the Canadian Court's approach to this issue in terms of another talismanic American decision, Buckley. (51)

In Buckley, the American Court struck down key amendments made in 1974 to the Federal Election Campaign Act of 1971. (52) As amended, FECA placed restrictions on the amount of money that individuals or political action committees could contribute to and spend on behalf of parties or candidates. As well, it restricted the amount of money that parties could contribute toward or spend in support of their own nominees. (53)

An important aspect of Buckley was the court's distinction between restrictions on contributions to political parties or candidates and independent spending by groups or individuals on behalf of, in support of, or against particular candidates or parties. The court noted that whereas contribution limits clearly militated against corruption and the appearance thereof by limiting the extent to which contributors could seek to gainer quid pro quo political favours, limits on spending by third parties or candidates presented no such quid pro quo opportunity and, therefore, could not be sustained. The restrictions had been challenged because plaintiffs regarded them as corresponding restrictions on speech. (54)

The American Court concluded that restrictions on contributions were constitutional because their infringement on political expression was minimal. (55) As well, Congress's desire to prevent corruption, or at least to remove the appearance thereof, outweighed the minimal impairment caused by contribution limits on political expression:
 A contribution serves as a general expression of support for the
 candidate and his views, but does hot communicate the underlying
 basis for the support. The quantity of communication by the
 contributor does hot increase perceptibly with the size of his
 contribution, since the expression rests solely on the
 undifferentiated, symbolic act of contributing. At most, the size
 of the contribution provides a very rough index of the intensity of
 the contributor's support for the candidate. A limitation on the
 amount of money a person may give to a candidate or campaign
 organization thus involves little direct restraint on his political
 communication, for it permits the symbolic expression of support
 evidenced by a contribution but does not in any way infringe the
 contributor's freedom to discuss candidates and issues. (56)


The court regarded restrictions on spending in a different light. "Independent" spending (57) by individuals during an election campaign entailed exercising this same "freedom to discuss candidates and issues." Whereas contributions to a particular candidate can create the appearance of a quid pro quo exchange of influence between the candidate and the contributor, the expression of a political opinion (and spending the money to express it effectively) by an individual do not comprise the same quid pro quo opportunity. (58)

The court's concerns about corruption were therefore somewhat complex. On the one hand, it understood and supported efforts to prevent the unfair promotion of influence peddling. (59) This constituted a violation of the rules of the political marketplace that might be compared to the use and dissemination of insider information in the financial marketplace.

On the other hand, the American Court asserted that the political marketplace should be as open and free as possible so that the conveyance and exchange of political opinion could be maximized. The court's concern about the openness of the political marketplace was manifested in its concern for the threats that independent-spending restrictions posed to the ability of citizens and interest groups to associate (and combine financial resources) for the advocacy of particular interests:
 [T]he independent expenditure ceiling ... fails to serve any
 substantial governmental interest in stemming the reality or
 appearance of corruption in the electoral process, [and] it heavily
 burdens core First Amendment expression. For the First Amendment
 fight to "'speak one's mind ... on all public institutions'"
 includes the right to engage in "'vigorous advocacy' no less than
 "abstract discussion.'" Advocacy of the election or defeat of
 candidates for federal office is no less entitled to protection
 under the First Amendment than the discussion of political policy
 generally or advocacy of the passage or defeat of legislation. (60)


The court thus concluded that restrictions on independent spending qua political speech had to be based on a compelling justification. Insofar as Congress had stated only the desire to control corruption (defined essentially as quid pro quo exchange of influence) as a basis for controlling spending, the court saw no clear connection between using one's financial resources to state or broadcast an opinion and corruption of the political process, so defined. It therefore struck down the spending restrictions. (61)

Buckley may appear at first to be a narrow decision predicated on the unyielding protection of individual speech rights at the expense of a more robust political process. We disagree. If anything, the American Court has constantly sought to balance its desire to defer to the authority of Congress with its goal of protecting the integrity of the political marketplace. In an especially revealing footnote, for example, the court noted: "Democracy depends on a well-informed electorate, not a citizenry legislatively limited in its ability to discuss and debate candidates and issues." (62)

There may be more than one way to promote the civic capacity of the polity. The court wanted Congress to demonstrate that it had sufficient evidence to prove that restricting the right to engage in political speech would enhance the democratic process. In an important passage for our purposes (and for those of critics who seek to distinguish the American and Canadian jurisprudence), the court said that Congress's desire to level the political playing field was insufficient to justify dampening political discussion by restricting political spending:
 It is argued, however, that the ancillary governmental interest
 in equalizing the relative ability of individuals and groups to
 influence the outcome of elections serves to justify the limitation
 on express advocacy of the election or defeat of candidates ... But
 the concept that government may restrict the speech of some
 elements of out society in order to enhance the relative voice of
 others is wholly foreign to the First Amendment, which was designed
 "to secure 'the widest possible dissemination of information from
 diverse and antagonistic sources,'" and "'to assure unfettered
 interchange of ideas for the bringing about of political and social
 changes desired by the people.'" The First Amendment's protection
 against governmental abridgment of free expression cannot properly
 be made to depend on a person's financial ability to engage in
 public discussion. (63)


Thus, the American Court did indeed reject the egalitarian justification for spending restrictions. But it did not do so simply to protect an unfettered individual right to speak. Instead, the court regarded the individual speech right as a vital instrument for the promotion of a more robust democracy. Insofar as the congressional desire to equalize (or, at least, diminish the inequality of) political influence was neither grounded on any reference to limiting quid pro quo corruption nor based in terms of enhancing the collective quality of democratic deliberation, the court saw no reason to sustain this restriction on free speech. (64)

IV. A Different Canadian Vision? The Egalitarian and Libertarian Conceptions of Democracy in Canada

The American Court's decision in Buckley was based on a narrow definition of "corruption". The court regarded corruption simply and narrowly as a quid pro quo exchange of influence. (65) It did not regard inequality of political influence brought about by differences in wealth or political prowess as a "corruption" of the political marketplace.

Canadian critics of Buckley use a broader definition of corruption. In promoting campaign-spending restrictions, Patrick Monahan argues that a political system in which wealth disparities not only enhanced one's capacity to speak but also to attain political success needed regulation. He does not refer specifically to this situation as one that is "corrupt", but he nevertheless regards it as a corruption of the democratic process. In his view, such legislation "is designed to ensure that no one political perspective is permitted to drown out the competing messages in the electoral marketplace." (66)

While Monahan was among the first to suggest that the Charter embodies an egalitarian spirit, scholars such as Feasby and MacIvor have observed more recently that the Canadian Court has, indeed, adopted the egalitarian approach to constitutional questions concerning the electoral process. (67) This conclusion is too simple. Insofar as Buckley cannot be neatly categorized as "libertarian", out analysis of the three cases comprising the "egalitarian" model (Libman, Figueroa, and Harper) indicates that they are too complex to fit neatly into one "egalitarian" category. Furthermore, the similarity of the Canadian Court's discussion of campaign spending and speech issues in Harper and the American Court's decision in McConnell indicates that the two courts are much more similar in their approach to voting rights and democracy than critics have suggested.

A. Background: The Egalitarian Model in the Canadian Court

Feasby and MacIvor draw upon Schauer's development of the egalitarian-libertarian distinction in "Judicial Review of the Devices of Democracy." (68) According to Schauer, under the egalitarian model, "a state of affairs in which some voices may be more influential than others, or have more power in fact to produce political outcomes than others, is suspect." (69) In contrast, the libertarian model "stresses the liberty dimension of democracy more than the equality dimension" and is "more skeptical of attempts to limit individual, organizational, or corporate use of wealth in political campaigns." (70)

While Schauer casts his discussion in terms of how American campaign-finance jurisprudence had wrestled with these two competing conceptions of democracy, Feasby explains that American campaign-spending electoral law represents "the almost complete triumph" of the libertarian vision:
 Buckley endorses the libertarian view that free speech is the
 pre-eminent concern in a democratic society and allows only the
 limitation of speech where corruption is a demonstrable risk. This
 has had the unfortunate result of precluding meaningful containment
 of the cost of the American democratic process and has contributed
 to the recent controversies over campaign fundraising. (71)


He therefore concludes that Buckley stands for the proposition that "equality is an irrelevant consideration in the limitation of political speech" and that "in the United States, the only justifiable restrictions of political speech are those that go to the heart of the electoral process--namely, corruption." (72)

The theoretical differences between the two visions of democracy are stark. The libertarian model promotes a laissez-faire approach to regulation of the political marketplace of ideas. Feasby writes that this has deleterious effects on political equality and the overall integrity and quality of the democratic process: "The libertarian conception eschews State controls and permits those with greater resources or abilities to express themselves disproportionately in the so-called 'marketplace of ideas.'" (73)

In contrast, "the egalitarian conception of democracy is an extension of the 'one person-one vote' principle which stands for the proposition that each person's voice in the democratic process is of equal worth." (74) Under the egalitarian approach, democracy
 is analogous to other institutional forms of political expression
 where, in order for there to be effective deliberation, it is
 necessary that there be regulation of expression to some degree.
 Implicit in such a view is that some speakers and some subjects are
 more important or relevant than others and should be given
 priority. (75)


Feasby explains that the egalitarian approach to democracy depends on active state regulation and administration of the democratic process. This entails regulating the speech of some individuals in favour or in support of others. Drawing upon the work of Cass Sunstein and John Rawls, Feasby summarizes the basic principles of the egalitarian vision of democracy:

(1) equality of liberty is more important than absolute liberty;

(2) equality of liberty may only be achieved by limiting freedoms of the wealthy; and

(3) this may only be achieved through State action. (76)

He then explains that these premises lead to the following conclusion, previously articulated by Owen Fiss:
 [In some situations] the state may have to act to further the
 robustness of public debate in circumstances where powers outside
 the state are stifling speech. It may have to allocate public
 resources--hand out megaphones--to those whose voices would not
 otherwise be heard in the public square. It may even have to
 silence the voices of some in order to hear the voices of the
 others. Sometimes there is simply no other way. (77)


By contrast, in the libertarian vision, "the citizen as voter has a right to uncontrolled access to information." (78) According to the libertarian model:
 [a]ny manipulation of the flow of information affects the ability
 of the electorate to be sovereign. This is encapsulated by the
 United States Supreme Court in Buckley: "In the free society
 ordained by our Constitution it is not the government, but the
 people--individually as citizens and candidates and collectively as
 associations and political committees who must retain control over
 the quantity and range of debate on public issues in a political
 campaign." Central to this conception of electoral regulation is
 distrust of the government to set rules for the election of future
 governments. (79)


In essence, the libertarian model calls for virtually no regulation of the political marketplace of ideas. It is based on a distrust of the government and a belief that individuals will, through their self-interested behaviour, combine to form a fair and effective political marketplace free of government interference.

We do not challenge the assertion that American political campaigns are expensive. Nonetheless, while interest groups may have taken advantage of the loopholes in Buckley, this does not signify that the American Court dismissed the importance of inequalities in wealth or the sincerity of Congress's desire to constrain them. Inequality of political influence that arises from wealth disparities was simply not a component of the court's definition of corruption--at first. However, as we discuss below, the development of the American Court's campaign-finance decisions after Buckley belies the assertion that it has no appreciation for the corrupting influence of wealth disparities. In fact, the American Court's jurisprudence since Buckley indicates that it is committed to balancing both the libertarian and egalitarian impulses that Feasby describes.

B. The Development of the Egalitarian Model in the Canadian Court

1. Libman v. Quebec (A.G.)

Feasby argues that the Canadian Court developed its "egalitarian theory" of politics in the course of three cases: Libman, Figueroa, and Harper. (80) Libman (81) entailed a challenge to Quebec's decision to hold a referendum on a set of proposed amendments to the Canadian constitution (the Charlottetown Accord) under the auspices of the provincial Referendum Act. (82) Quebec organized two umbrella committees--one in favour of and one against the accord. The act allowed only these "national" (i.e., provincial) committees, or the groups affiliated with them, to incur "regulated expenses" associated with the referendum campaign. (83) Any group wishing to participate in the referendum campaign was, therefore, required to affiliate with either the "oui" or "non" camps. Libman supported abstaining from the referendum vote. But, the Referendum Act did not allow him to incur regulated expenses unless he affiliated with one of the two committees--thereby, he alleged, undermining his abstentionist position.

The Canadian Court was sympathetic to the goals of the Referendum Act. Acknowledging that it was vital for Quebec to promote the appearance of fairness in the referendum process, the Court stated:
 The basic objective of the Act at issue is to guarantee the
 democratic nature of referendums by promoting equality between the
 options submitted by the government and seeking to promote free and
 informed voting. It provides for control of spending by the
 national committees during a referendum campaign, as well as
 control of spending by independent individuals or groups who do not
 wish to or who cannot join or affiliate themselves with either of
 the national committees, in order to promote a certain equality of
 access to media of expression. (84)


In what Feasby describes as a "classic statement" (85) of the notion of fairness as it had come to be understood in the context of both the Canada Elections Act (86) and the Quebec Referendum Act, the Court went on to explain:
 [T]he objective of the Act is, first, egalitarian in that it is
 intended to prevent the most affluent members of society from
 exerting a disproportionate influence by dominating the referendum
 debate through access to greater resources. What is sought is in a
 sense an equality of participation and influence between the
 proponents of each option. Second, from the voters' point of view,
 the system is designed to permit an informed choice to be made by
 ensuring that some positions are not buried by others. Finally, as
 a related point, the system is designed to preserve the confidence
 of the electorate in a democratic process that it knows will not be
 dominated by the power of money. (87)


Despite its support for the goals of the Quebec Referendum Act, the Court upheld Libman's challenge. While supporting the egalitarian spirit of the act, the Court noted that the manner in which the egalitarian model was imposed in this case ended up restricting the freedom of speech of those who would or could not join either side of the debate. Accordingly, the pursuit of systemic political equality imposed too much of an unfair burden on those third parties who did not wish to affiliate with either the yes or no camps regarding the Charlottetown Accord. Thus, the Court explained, as a result of the act's constraints, citizens were forced to align with and support the dissemination of opinions with which they did not agree.

While sympathetic to the goal of balancing political speech and ensuring that both the yes and no camps were able to convey their arguments effectively, the Court explained that limiting voters' options to joining one of two camps limited the number of points of view expressed on the referendum--not the volume with which they were expressed. Accordingly, the Court could not sustain this particular spending limit, even though it was generally supportive of the goal of ensuring equality:
 [L]imits on spending by third parties in addition to the limits
 imposed on the national committees are necessary and must be far
 stricter than those on spending by the national committees in order
 to ensure that the system of limits and a balance in resources is
 effective ... Nonetheless, we are of the view that the limits
 imposed ... cannot meet the minimal impairment test in the case of
 individuals and groups who can neither join the national committees
 nor participate in the affiliation system. (88)


It is important to note that, in this case, the Court cast equality in instrumental terms: equality was not an end in itself. Instead, it is presumed that equality among speakers and spenders would result in the dissemination of more points of view in the political marketplace and, therefore, a better democratic process in which better educated, more informed voters participate and exchange views.

Libman can therefore be regarded as an endorsement of the egalitarian vision. Yet the Court struck down the challenged provisions of the Quebec Referendum Act in order to protect the abstentionists' freedom of speech. Insofar as the decision rectified the unequal treatment afforded the abstentionists, it is unquestionably egalitarian. But the ruling also demonstrates a distrust of governmental attempts to control or channel political debate--even in the name of political equality. In this respect, Libman does not present equality as an end in itself. Instead, it is a means to ensuring a better democratic process and the opportunity to cast a meaningful vote.

2. Figueroa v. Canada (A.G)

In Figueroa, the Court ruled that subsections 24(2), 24(3), and 28(2) of the Canada Elections Act, requiring that parties nominate candidates in at least fifty electoral districts to qualify as a "registered" political party and be able to issue tax receipts for contributions, were an unconstitutional infringement of the right to vote in section 3 of the Charter. (89) The government had justified the restriction by arguing that it wished to preserve the integrity of the political-finance regime by preventing the creation of fictional or fraudulent political parties and to promote the representativeness of the electoral process by fostering the creation of broad-based political parties. (90)

MacIvor and Feasby state that Figueroa clearly manifests the egalitarian theory of politics, (91) embodying what MacIvor describes as "a straightforward clash between the party-equality and two-tier approaches" to laws governing political parties. (92) MacIvor casts Figueroa in terms of a debate between libertarians, who favoured the two-tier approach to political party rights (which treats large and small parties differently), and egalitarians, who did not. The fifty-seat threshold was designed in part to promote the formation of majority governments (by using the threshold to discourage the formation of small parties). In striking the threshold down, Feasby argues that the Court "held that the [egalitarian] quality of the electoral process is more important than the outcome of the process." (93)

While one can look at the holding in Figueroa as an endorsement of the egalitarian position, the decision does not indicate that egalitarianism was the principal emphasis of the Court's decision. Speaking for the majority, Justice Iacobucci dismissed the fifty-candidate threshold because it constituted what might be described as "viewpoint discrimination" against minor parties and those voters who sought to gain representation by voting for them. For Justice Iacobucci, the right to play a meaningful role in the electoral process entailed the right to have one's political views expressed on equal terms with all other political views. This meant, therefore, that the state could not act "to hinder or condemn a political view without ... harming the openness of Canadian democracy ... " (94)

The key element of a fair electoral process was held to be the protection of each citizen's right to meaningful participation. Insofar as the threshold made it more difficult for some parties to campaign and therefore made it correspondingly harder for some voters to express themselves on election day, it unconstitutionally infringed upon "the right of each citizen to play a meaningful role in the electoral process." (95) This right was infringed to the extent that laws such as the fifty-candidate threshold either (1) limited the choices available to voters on election day or (2) correspondingly limited the number of viewpoints upon which a voter could draw in making his or her election-day decision. Thus, the right to a meaningful vote was the principal focus of Figueroa:
 The right to play a meaningful role in the electoral process
 includes the right of each citizen to exercise the right to vote in
 a manner that accurately reflects his or her preferences. In order
 to exercise the right to vote in this manner, citizens must be able
 to assess the relative strengths and weaknesses of each party's
 platform--and in order to assess the relative strengths and
 weaknesses of each party, voters must have access to information
 about each candidate. As a consequence, legislation that
 exacerbates a pre-existing disparity in the capacity of the various
 political parties to communicate their positions to the general
 public is inconsistent with s. 3.... By derogating from the
 capacity of marginal or regional parties to present their ideas and
 opinions to the general public, it undermines the right of each
 citizen to information that might influence the manner in which she
 or he exercises the right to vote. (96)


This passage indicates that, while it may be reasonable to regard Figueroa as an egalitarian decision, the support for the egalitarian vision is, once again, predicated on its instrumentality in furthering the individual right to cast a meaningful vote. (97)

The Figueroa majority placed the integrity of the franchise above other values that the government might seek to foster through electoral regulation. Promoting particular types of political parties or seeking to foster the formation of majority governments might be laudable legislative goals. But, if pursuing those goals diminishes the integrity or meaningful exercise of the franchise, the legislation will be unconstitutional. The majority made this clear when it restated its understanding of the right to vote in section 3 of the Charter. The majority stated:
 [T]he right of each citizen to participate in the political life of
 the country is one that is of fundamental importance in a free and
 democratic society and suggests that s. 3 should be interpreted in
 a manner that ensures that this fight of participation embraces a
 content commensurate with the importance of individual
 participation in the selection of elected representatives in a free
 and democratic state. Defining the purpose of s. 3 with reference
 to the right of each citizen to play a meaningful role in the
 electoral process, rather than the composition of Parliament
 subsequent to an election, better ensures that the right of
 participation that s. 3 explicitly protects is not construed too
 narrowly. (98)


This suggests, however, that the two-tiered treatment of political parties is not, in and of itself, unconstitutional. In fact, as MacIvor discusses in her analysis, while registered parties may qualify for reimbursement of sixty per cent of their declared election expenses, to do so, a party must win two per cent of the national vote or five per cent of the vote in the constituencies in which it runs candidates. As well, parties receive a share of free broadcast airtime equal to their proportion of the vote and seat shares from the previous election. (99) Thus, the two-tiered system remains in place in Canada. While it is true that Figueroa resulted in significant changes to the laws governing political parties, the law still has a disparate impact on the political parties--and this is constitutional, in the majority's opinion, so long as it does not diminish the impact of the individual right to vote.

This aspect of the majority's opinion is especially important because it challenges Justice LeBel's assertion that the franchise can and should be balanced against other collective goals. Justice LeBel argued that the majority had taken an excessively individualistic approach to the franchise that overlooks important collective and communitarian aspects of Canadian jurisprudence. Explaining that section 3 is also concerned with the representation of communities, Justice LeBel maintained that balancing individual and communitarian aspects of the franchise "can render participation more meaningful and result in better representation of communities and of national political preferences." (100)

Justice LeBel relied upon Chief Justice McLachlin's rejection of the strict equality principle in the Saskatchewan Reference. (101) Voter parity, wrote Justice LeBel, is only one of the factors, "albeit a factor of primary importance," to be taken into account in determining whether effective representation has been provided. (102) In response, Justice Iacobucci explained that, while effective representation (or other democratic goals) might justify deviation from strict parity, the individual right to cast a meaningful ballot was not subject to infringement. According to Justice Iacobucci, Chief Justice McLachlin's opinion in the Saskatchewan Reference did not
 indicate that the right of each citizen to play a meaningful role
 in the electoral process is to be balanced against countervailing
 values, such as the collective interest in the aggregation of
 political preferences. Rather, the use of such phrases reflects
 that the purpose of s. 3 is not to protect the fight of each
 citizen to play an unlimited role in the electoral process, but to
 protect the right of each citizen to play a meaningful role in the
 electoral process; the mere fact that the legislation departs from
 absolute voter equality or restricts the capacity of a citizen to
 participate in the electoral process is an insufficient basis on
 which to conclude that it interferes with the right of each citizen
 to play a meaningful role in the electoral process. But if the
 legislation does, in fact, interfere with the capacity of each
 citizen to play a meaningful role in the electoral process, it is
 inconsistent with s. 3. Any corresponding benefits related to
 democratic values other than the right of each citizen to play a
 meaningful role must be considered under s. 1. (103)


Here, a majority of the Court clearly qualifies its support of the egalitarian vision and the role that the state may play in fostering it. Whereas Feasby suggests that Libman, Figueroa (and, later, Happer) manifest the Supreme Court's shift towards the egalitarian model of judicial review, (104) this passage suggests that the meaningful vote takes precedence over strict egalitarianism. It also manifests a conscious refusal to defer to legislative balancing or to give the legislature the benefit of the doubt when it comes to setting electoral regulations. Accordingly, the majority did not, in Justice LeBel's words, reject egalitarianism in favour of an individualistic model of the franchise. Instead, it noted that legislatively imposed egalitarianism could come at the expense of the meaningful exercise of the franchise.

Justice LeBel reasserted what he believed to be the cote holding in the Saskatchewan Reference:
 The Saskatchewan Reference stands for the proposition that
 adverse effects on the capacity of an individual citizen to
 participate are not equivalent, in and of themselves, to a denial
 of meaningful participation or effective representation. In order
 to determine whether such measures conflict with s. 3, their nature
 must be identified and their impact must be weighed in the full
 context of the political system. (105)


Accordingly, Justice LeBel argued that the right to "effective representation" enshrined in section 3 did not speak to one, particular manner in which to balance individual and collective aspects of voting. Speaking to Chief Justice McLachlin's calculus in the Saskatchewan Reference, Justice LeBel continued:
 This Court recognized in the Saskatchewan Reference that some
 diminution of one aspect of effective representation (parity) can
 ultimately result in the provision of more effective
 representation. This acknowledgement suggests that effective
 representation is not reducible to any single value, but consists
 of many different components. Citizens may make political choices
 that represent their interests as individuals, or they may attach
 more importance to being represented as members of communities of
 interest both narrow and broad. The constitutional obligation to
 ensure that this complex matrix of interests is represented
 effectively allows for a fairly wide range of alternatives, each
 combining or prioritizing the various elements at play in a
 different way. For example, if a province were to design its
 electoral districts to be as close to numerical equality as
 practically possible, this arrangement might (depending on the
 particular facts and context) be just as acceptable in terms of s.
 3 as an electoral map designed to enhance the voting power of
 minority communities. (106)


Thus, Justice LeBel regarded the disadvantaged political parties in Figueroa in the same light as the under-represented voters in the Saskatchewan Reference. In both instances, the inequality among individuals (voters or political parties) was justified because it resulted in a better representational scheme. (107) Justice LeBel therefore echoed Justice Frankfurter's call for deference to the legislature's choice among competing representative schema in the American Court's decision in Baker. (108) Justice LeBel chastised the majority in Figueroa for focusing on the "strictly individual aspects of participation in the political process" (109) and for imposing a judicially preferred view of better government at the expense of a competing vision of government advocated by Parliament. (110)

The Figueroa majority's disagreement with Justice LeBel cannot necessarily be cast in terms of a defence of individualism. Figueroa embodies elements of egalitarian and individualistic thinking. But these visions of democracy are ultimately subordinate to the preservation of a meaningful individual right to vote. Of course, restricting some aspects of the individual exercise of the franchise may, in promoting the collective or egalitarian aspects of the franchise, ultimately enhance the meaning of the individual right to vote. This becomes especially clear in the Court's deliberations about campaign-spending restrictions in Harper. As we see in Harper, the Court divided again concerning the manner in which the government promoted equality. In Harper, however, Chief Justice McLachlin dissented--and her reasoning demonstrates that she reconsidered (or, at least, has reformulated) the analysis on which she based her opinion in the Saskatchewan Reference.

3. Harper v. Canada (A.G.): The Retreat from the Egalitarian Model?

Harper (111) entailed a challenge to limits placed on third-party spending by the 2000 Canada Elections Act. (112) The key focus of the case dealt with subsection 350(1) of the act, which stated that no more than $3,000 per constituency and $150,000 nationally could be spent to promote the election or defeat of a particular candidate or candidates. In Harper, the Court contended that the spending limits were too low and therefore violated the rights to freedom of speech and to vote set forth in sections two and three of the Charter.

The majority relied heavily on Libman and the Saskatchewan Reference to sustain the spending restrictions. Focusing on the disparate impact that gross differences in wealth could have on the political process, Justice Bastarache for the majority asserted that the egalitarian model is "an essential component of out democratic society. This model is premised on the notion that individuals should have an equal opportunity to participate in the electoral process." (113)

The majority held that individual speech could be regulated in the interest of enhancing the aggregate volume and diversity of speech. If only a few, powerful voices were able to dominate political discourse, the quality and content of political discourse would surfer, as would the polity. This, in turn, would adversely affect the capacity of individual citizens to participate in the electoral process. Furthermore, Justice Bastarache wrote:
 The current third party election advertising regime is
 Parliament's response to this Court's decision in Libman. The
 regime is clearly structured on the egalitarian model of elections.
 The overarching objective of the regime is to promote electoral
 fairness by creating equality in the political discourse. The
 regime promotes the equal dissemination of points of view by
 limiting the election advertising of third parties who, as this
 Court has recognized, are important and influential participants in
 the electoral process. The advancement of equality and fairness in
 elections ultimately encourages public confidence in the electoral
 system. Thus. broadly speaking, the third party election
 advertising regime is consistent with an egalitarian conception of
 elections and the principles endorsed by this Court in Libman.
 (114)


The majority argued that the unrestrained exercise of individual speech rights--of groups or voters--was less important than the promotion of a collective speech right. That is, the value of individual rights was held to be based on their instrumentality in promoting the quality of the collective discourse of the polity:
 The overarching objective of the third party election advertising
 limits is electoral fairness. Equality in the political discourse
 promotes electoral fairness and is achieved, in part, by
 restricting the participation of those who have access to
 significant financial resources. The more voices that have access
 to the political discourse, the more voters will be empowered to
 exercise their right in a meaningful and informed manner. Canadians
 understandably have greater confidence in an electoral system which
 ultimately encourages increased participation. (115)


Insofar as the franchise embodies a right to effective political participation, Harper defines that effectiveness to include diversity of voter voice and information. Accordingly, Harper stands for the proposition that voters should have access to broad and diverse sources of information prior to casting their ballots for those same election-day choices. An informed voter is, then, the vital building block of Canadian democracy, and the government should take the steps necessary to preserve the free flow of ideas. To the extent that promoting voter equality also enhances the meaningfulness of the franchise, corresponding restrictions on individual speech rights are in keeping with section 3 of the Charter:
 The question, then, is what promotes an informed voter? For
 voters to be able to hear all points of view, the information
 disseminated by third parties, candidates and political parties
 cannot be unlimited. In the absence of spending limits, it is
 possible for the affluent or a number of persons or groups pooling
 their resources and acting in concert to dominate the political
 discourse.... If a few groups are able to flood the electoral
 discourse with their message, it is possible, indeed likely, that
 the voices of some will be drowned out. Where those having access
 to the most resources monopolize the election discourse, their
 opponents will be deprived of a reasonable opportunity to speak and
 be heard. This unequal dissemination of points of view undermines
 the voter's ability to be adequately informed of all views. In this
 way, equality in the political discourse is necessary for
 meaningful participation in the electoral process and ultimately
 enhances the right to vote. (116)


The majority upheld the challenged sections of the Elections Act because they were designed to promote robust political debate by seeking to increase the number of political voices that could be heard (by reducing the impact of those voices that could drown out others). In contrast, the laws in Libman and Figueroa had the opposite effect. Thus, the restrictions on speech in Harper were justified because they promoted the collective capacity to engage in a meaningful democratic debate. (117) The number of voices was not limited (as was the case in Libman and Figueroa). In fact, by limiting essentially the volume with which some overpowering interests might broadcast their message, the majority endorsed the notion that equality could promote diversity and, with it, a more meaningful exercise of the franchise. To do this, the state "can provide a voice to those who might otherwise not be heard" or it "can restrict the voices which dominate the political discourse so that others may be heard as well." (118) By supporting the spending restrictions, the majority endorsed the latter approach.

V. The Dark Side of the Egalitarian Vision? Chief Justice McLachlin's Break with the Court

While the Court's reasoning in Harper, Figueroa, and Libman makes sense in theory, it does not necessarily bring about a more robust democracy in practice. In fact, it could have the opposite effect, despite being cloaked in the garb of promoting equality. One's conclusion in this regard depends on the lens through which competition in the political marketplace is viewed.

Chief Justice McLachlin noted this in her dissent from the Harper majority. In so doing, she echoed comments made by Justices Scalia and Kennedy in their dissents from the American Court's majority decision in McConnell. (119) There, the American Court arrived at the same conclusion and split along the same lines as did the Canadian Court in Harper.

Chief Justice McLachlin maintained in Harper that if the government were to impose restraints on political speech (qua political spending) it would have to demonstrate that the spending restrictions remedied an identifiable harm to the political process that had resulted from unrestricted spending. In her opinion, the government had not done so:
 The dangers posited are wholly hypothetical. The Attorney General
 presented no evidence that wealthier Canadians--alone or in
 concert--will dominate political debate during the electoral period
 absent limits. It offered only the hypothetical possibility that,
 without limits on citizen spending, problems could arise. If, as
 urged by the Attorney General, wealthy Canadians are poised to
 hijack this country's election process, an expectation of some
 evidence to that effect is reasonable. Yet none was presented. This
 minimizes the Attorney General's assertions of necessity and lends
 credence to the argument that the legislation is an overreaction to
 a non-existent problem. (120)


At first blush, it seems that Chief Justice McLachlin would have joined the Harper majority. The opinion echoes the concerns voiced in the opinions she joined in Figueroa and Libman. The right to vote may be limited if it is done so in a manner that promotes its meaningful exercise. (121) The franchise is meaningful to the extent that it is cast in a political environment characterized by diversity of opinions and information. Thus, in the same way that the Court struck down laws in order to promote the proliferation of political parties in Figueroa and the diversity of political expression in Libman, one might have expected the Court to strike down the restriction of speech in Harper. It did not.

The difference in Harper was that all the criteria for justifying an infringement on the franchise seemed to have been addressed. Third-party-spending restrictions were justified because they promoted an equality of political speech and, as a result, ensured that a few speakers would not drown out others--thereby diminishing the diversity of speech and opinion to which voters were exposed. Thus, the campaign-spending limits seemed to promote the meaningful exercise of the franchise that Chief Justice McLachlin had endorsed in her earlier opinions. Yet, she and Justices Binnie and Major dissented.

In Harper, Chief Justice McLachlin saw a more subtle and correspondingly more ominous threat to democracy and the meaningful exercise of the franchise than that posed in earlier cases. To a point, the Harper majority appears to stand for the principle that the more powerful political actors should not be allowed to monopolize the political arena:
 [S]pending limits seek to protect two groups. First, the limits
 seek to protect the Canadian electorate by ensuring that it is
 possible to hear from all groups and thus promote a more informed
 vote. ... Where ... third party advertising seeks to systematically
 manipulate the voter, the Canadian electorate may be seen as more
 vulnerable.

 [T]he second group protected by the legislation are candidates and
 political parties. ... [A]ll political parties, whether large or
 small, are "capable of acting as a vehicle for the participation of
 individual citizens in the public discourse that animates the
 determination of social policy". Thus, regardless of their size,
 political parties are important to the democratic process.
 Nevertheless, neither candidates nor political parties can be said
 to be vulnerable. (122)


However, Chief Justice McLachlin (writing with Justice Major) argued that constraining powerful interest groups actually ends up reducing the political efficacy of all groups in society--including the small, weaker ones--because it strengthens the relative power of the government vis-a-vis all political groups.

Thus, the spending restrictions in Harper compare to the laws challenged in Libman and Figueroa in a vitally important manner: they involved an attempt by incumbent political powers (parties or individuals) to insulate themselves (consciously or unconsciously) from political competition. They constrain the ability of the more powerful or wealthy members of civil society to mount challenges to incumbent entrenchment--all under the guise of promoting equality among all members (big and small) of the broader civil society.

Some observers celebrate such campaign-spending legislation because it seems to give aid to less wealthy or powerful political actors. (123) In fact, it levels political power across civil society--to the benefit of entrenched, incumbent political actors. This was not lost on Chief Justice McLachlin. She argued that the spending limits imposed by the 2000 Canada Elections Act (124) were so low that they prevented citizens "from effectively communicating their views on election issues to their fellow citizens, restricting them instead to minor local communication. As such, they represent a serious incursion on free expression in the political realm." (125) This attack on free expression is as damaging to the effective exercise of the franchise as is the assault on minor parties struck down by the Court in Figueroa. By constraining political voices in the electorate, the spending restrictions diminish the diversity of information and viewpoint that is vital to the effective and meaningful exercise of the franchise. As Chief Justice McLachlin and Justice Major wrote:
 The Canada Elections Act undercuts the right to listen by
 withholding from voters an ingredient that is critical to their
 individual and collective deliberation: substantive analysis and
 commentary on political issues of the day. The spending limits
 impede the ability of citizens to communicate with one another
 through public for a and media during elections and curtail the
 diversity of perspectives heard and assessed by the electorate.
 Because citizens cannot mount effective national television, radio
 and print campaigns, the only sustained messages voters see and
 hear during the course of an election campaign are from political
 parties. (126)


Since section 350 prevented citizens (through their third parties and interest groups) from mounting effective challenges to the government, the spending restrictions enhanced the entrenchment of incumbent powers. Voters were now left with two principal sources of political information: the parties and the mass media. Chief Justice McLachlin argued that this arrangement mutes political opposition and speech in the same way that channelling political discussion through one of the two referendum committees in Libman does:
 It is no answer to say that the citizen can speak through a
 registered political party. The citizen may hold views not espoused
 by a registered party. The citizen has a right to communicate those
 views. The right to do so is essential to the effective debate upon
 which our democracy rests, and lies at the cote of the free
 expression guarantee. (127)


Thus, limiting the capacity of large or wealthy private organizations to use their resources to participate in political debate may enhance the political power of smaller political groups relative to their larger competitors in civil society. In this respect, it may actually diversify the opinion and information to which voters are exposed and, thereby, enhance the meaningful exercise of the franchise. But, as Chief Justice McLachlin and Justice Major pointed out in Harper, it also exacerbates the relative inequalities between incumbent political powers and the rest of civil society, thereby muting the capacity of the electorate as a whole to challenge the government, in this respect, the imposition of equality by the spending restrictions had the same deleterious impact on the exercise of the franchise that it did in Libman because it failed to promote broad political expression. The spending restrictions offer dissenters little if their only avenue of political discourse is through the political parties (or other established political actors) they wish to challenge.

Thus, Chief Justice McLachlin saw two threats to the meaningful exercise of the franchise in all three cases (Libman, Figueroa, and Harper). First, the government attempted to limit diversity of opinion. Second, perhaps more important and more glaringly obvious in Harper, the government was actually insulating itself from political competition under the cover of promoting equality and restricting individual rights. Chief Justice McLachlin thus saw the same threat posed to political liberty that Alexis de Tocqueville described in Democracy in America. (128)

In explaining why (and lamenting that) democracies prefer equality to liberty, de Tocqueville explained that the desire for equality lent itself to despotism. (129) This is not to say that Parliament has despotic aspirations. But, insofar as a government that is less accountable and less subject to popular control is correspondingly less democratic and more despotic, the parallel to de Tocqueville's vision is quite apt. Thus, Chief Justice McLachlin lost her majority in Harper because the other members of the Court did not see that a vote cast in a political environment that was diverse, yet controlled, would be meaningless because the votes would pose less of a threat to the government.

VI. An American Parallel: The Canadianization of American Electoral Law?

A. Removal of Corrupt Influences

The Harper decision and Chief Justice McLachlin's dissent embodies a debate almost identical to that in McConnell, (130) in which the American Court used remarkably similar reasoning to uphold various aspects of the Bipartisan Campaign Reform Act of 2002. (131) The court supported congressional efforts to remove the appearance of corruption from the political process. While the BCRA engendered no shortage of controversy, the key provisions for the purposes of this analysis concerned the restrictions on "soft money" (funds to be used for state and local political activities) expenditures made by political parties that are not directly related to candidates' campaigns and electioneering communications. (132)

The court's support for the BCRA's restrictions echoed the reasoning of the Harper majority. The court ruled that unfettered speech could actually cause a palpable harm to the political process:
 Because the electoral process is the very "means through which a
 free society democratically translates political speech into
 concrete governmental action," contribution limits, like other
 measures aimed at protecting the integrity of the process, tangibly
 benefit public participation in political debate. For that reason,
 when reviewing Congress" decision to enact contribution limits,
 "there is no place for a strong presumption against
 constitutionality ..." (133)


The American Court took as deferential a stand towards Congress as its Canadian counterpart would take towards Parliament: "Take away Congress' authority to regulate the appearance of undue influence and 'the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.'" (134)

Thus, the American Court not only supported congressional efforts to purge the electoral system of corruption, it also supported Congress's desire to remove the corrupting influences associated with gross disparity of economic power:
 Many years ago we observed that "[t]o say that Congress is
 without power to pass appropriate legislation to safeguard ... an
 election from the improper use of money to influence the result is
 to deny to the nation in a vital particular the power of self
 protection." We abide by that conviction in considering Congress'
 most recent effort to confine the ill effects of aggregated wealth
 on our political system. (135)


The American Court clearly evolved markedly from the narrow approach it had taken to political corruption in Buckley. A court that had once rejected Congress's desire to equalize political influence now stated:
 [P]laintiffs conceive of corruption too narrowly. Out cases have
 firmly established that Congress' legitimate interest extends
 beyond preventing simple cash-for-votes corruption to curbing
 "undue influence on an officeholder's judgment, and the appearance
 of such influence." Many of the "deeply disturbing examples" of
 corruption cited by this Court in Buckley to justify FECA's
 contribution limits were not episodes of vote buying, but evidence
 that various corporate interests had given substantial donations to
 gain access to high-level government officials. (136)


The American Court's acknowledgment that the appearance of corruption brought about by inequality of political influence will diminish the likelihood of voter participation and therefore diminish the vibrancy of the democratic process was not a deviation. Instead, it represented the continuance of a steady evolution away from the seemingly individualistic stand taken in Buckley.

This is clearly demonstrated in the American Court's decision in Nixon v. Shrink Missouri Government PAC. (137) There, the court sustained several campaign-spending restrictions that Missouri had imposed on its state legislative elections. In his concurrence, Justice Breyer offered a thoughtful explanation of the place Buckley played in the court's campaign-finance decisions. (138) Justice Breyer noted that the case required the court to balance constitutionally protected interests that "lie on both sides of the legal equation." (139) "On the one hand," he argued, "a decision to contribute money to a campaign is a matter of First Amendment concern--not because money is speech (it is not); but because it enables speech." (140) As well, he noted, spending restrictions "protect the integrity of the electoral process--the means through which a free society democratically translates political speech into concrete governmental action." (141) He explained that "by limiting the size of the largest contributions, such restrictions aim to democratize the influence that money itself may bring to bear upon the electoral process." (142)

Justice Breyer's approach to campaign spending is, therefore, cast in terms of what he perceives to be a broader right of voters to participate meaningfully in the political process. Accordingly, he compared spending restrictions to other aspects of the constitution that are designed to regulate and balance political debate:
 I recognize that Buckley used language that could be interpreted to
 the contrary. It said, for example, that it rejected "the concept
 that government may restrict the speech of some elements of our
 society in order to enhance the relative voice of others." But
 those words cannot be taken literally. The Constitution often
 permits restrictions on the speech of some in order to prevent a
 few from drowning out the man--in Congress, for example, where
 constitutionally protected debate, Art. I, [section] 6, is limited
 to provide every Member an equal opportunity to express his or her
 views. Or in elections, where the Constitution tolerates numerous
 restrictions on ballot access, limiting the political rights of
 some so as to make effective the political rights of the entire
 electorate. Regardless, as the result in Buckley made clear, the
 statement does not automatically invalidate a statute that seeks a
 fairer electoral debate through contribution limits, nor should it
 forbid the Court to take account of the competing constitutional
 interests just mentioned.

 In such circumstances--where a law significantly implicates
 competing constitutionally protected interests in complex ways the
 Court has closely scrutinized the statute's impact on those
 interests, but refrained from employing a simple test that
 effectively presumes unconstitutionality. Rather, it has balanced
 interests. And in practice that has meant asking whether the
 statute burdens any one such interest in a manner out of proportion
 to the statute's salutary effects upon the others (perhaps, but not
 necessarily, because of the existence of a clearly superior, less
 restrictive alternative). Where a legislature has significantly
 greater institutional expertise, as, for example, in the field of
 election regulation, the Court in practice defers to empirical
 legislative judgments--at least where that deference does not risk
 such constitutional evils as, say, permitting incumbents to
 insulate themselves from effective electoral challenge. This
 approach is that taken in fact by Buckley for contributions, and is
 found generally where competing constitutional interests are
 implicated, such as privacy ... (143)


Thus, Justice Breyer asserted that the court did not regard the individual-speech right (in terms of campaign spending) as an absolute. Instead, it is an instrument through which the collective speech of the polity and the calibre of the democratic process can be enhanced. In this respect, the McConnell decision is in keeping with the broader spirit of Buckley and the balancing that characterized the evolution of the court's campaign-spending law in the three decades after Buckley was decided.

While McConnell and earlier decisions like Shrink Missouri indicate that the American Court is not the bastion of individualism that some scholars have suggested, (144) the decision to sustain campaign-spending restrictions in McConnell did meet with spirited dissents from Justices Kennedy and Scalia. These were not cast in strictly individualistic terms. (145) Instead, they anticipated Chief Justice McLachlin's Harper dissent.

The dissenters questioned Congress's desire to restrict speech that had no clear potential to corrupt the political process. As Justice Kennedy noted:
 When one recognizes that [section] [section] 323(a), (b), (d),
 and (f) do not serve the interest the anticorruption rationale
 contemplates, Title I's entirety begins to look very much like an
 incumbency protection plan. That impression is worsened by the fact
 that Congress exempted its officeholders from the more stringent
 prohibitions imposed on party officials. (146)


The American dissenters made two points. Justice Kennedy took a very practical approach to the BCRA. He did not believe that the concept of corruption could be expanded beyond the realm of quid pro quo exchanges of favours. Therefore, he was unwilling to extend it to include inequality of political influence. Echoing Chief Justice McLachlin, Justice Kennedy argued that since there was no clear connection between issue advertising and the notion of quid pro quo corruption, there was no basis on which to restrict these advertisements. Justice Kennedy explained:
 In Buckley, the Court held that one, and only one, interest
 justified the significant burden on the right of association
 involved there: eliminating, or preventing, actual corruption or
 the appearance of corruption stemming from contributions to
 candidates.

 Placing Buckley's anticorruption rationale in the context of the
 federal legislative power yields the following rule: Congress'
 interest in preventing corruption provides a basis for regulating
 federal candidates' and officeholders' receipt of quids, whether or
 not the candidate or officeholder corruptly received them.
 Conversely, the rule requires the Court to strike down campaign
 finance regulations when they do not add regulation to "actual or
 apparent quid pro quo arrangements." (147)


Adhering to the standard set in Buckley, Justice Kennedy argued that there is a difference between undue influence that comes with quid pro quo corruption and inequality of influence that may arise because some speakers, interest groups, or lobbyists are simply more adept or effective than others:
 The very aim of Buckley's standard, however, was to define undue
 influence by reference to the presence of quid pro quo involving
 the officeholder. The Court, in contrast, concludes that access,
 without more, proves influence is undue. Access, in the Court's
 view, has the same legal ramifications as actual or apparent
 corruption of officeholders. This new definition of corruption
 sweeps away all protections for speech that lie in its path. (48)


Thus, Justice Kennedy echoed Chief Justice McLachlin--absent any evidence that unfettered spending resulted in corruption or a diminished democratic process, he was unwilling to support spending restrictions.

B. Incumbent Entrenchment

A second basis for dissent addressed a more subtle but equally pernicious threat to democracy--that the spending restrictions forced participants in the political process to channel their speech through preferred routes--routes that were subject to government control. Again echoing Chief Justice McLachlin, Justice Kennedy noted:
 The First Amendment guarantees our citizens the right to judge
 for themselves the most effective means for the expression of
 political views and to decide for themselves which entities to
 trust as reliable speakers. Significant portions of Titles I and II
 of the Bipartisan Campaign Reform Act of 2002 (BCRA or Act)
 constrain that freedom. These new laws force speakers to abandon
 their own preference for speaking through parties and
 organizations. And they provide safe harbor to the mainstream
 press, suggesting that the corporate media alone suffice to
 alleviate the burdens the Act places on the rights and freedoms of
 ordinary citizens. (149)


Justice Scalia was even more critical. In addition to funnelling political speech through preferred channels, the BCRA also quelled dissent and criticism of the government. The restrictions on attack ads in the waning weeks of campaigns were clearly designed to protect incumbents from criticism:
 We are governed by Congress, and this legislation prohibits the
 criticism of Members of Congress by those entities most capable of
 giving such criticism loud voice: national political parties and
 corporations, both of the commercial and the not-for-profit sort.
 It forbids pre-election criticism of incumbents by corporations,
 even not-for-profit corporations, by use of their general funds;
 and forbids national-party use of "soft" money to fund "issue ads"
 that incumbents find so offensive. (150)


Justice Scalia also demonstrated that treating political actors equally is not the same as treating them fairly:
 To be sure, the legislation is evenhanded: It similarly prohibits
 criticism of the candidates who oppose Members of Congress in their
 reelection bids. But as everyone knows, this is an area in which
 evenhandedness is not fairness. If all electioneering were
 evenhandedly prohibited, incumbents would have an enormous
 advantage. Likewise, if incumbents and challengers are limited to
 the same quantity of electioneering, incumbents are favored. In
 other words, any restriction upon a type of campaign speech that is
 equally available to challengers and incumbents tends to favor
 incumbents. (151)


Thus, while the BCRA restrictions levelled the political playing field for actors outside of the government, they also amplified the relative power of governmental officials vis-a-vis the society at large. In this respect, Justices Scalia and Kennedy arrived at the same conclusion that Chief Justice McLachlin would make six months later in her Harper dissent.

VII. Implications and Conclusion: The Evolution of Chief Justice McLachlin's Vision of the Democratic Process and the Convergence in American and Canadian Judicial Thought

Chief Justice McLachlin's defection (along with Justices Major and Binnie) from the Canadian Court majority in Harper is an especially important event in Canadian jurisprudence. It demonstrates the extent to which Chief Justice McLachlin's jurisprudential vision of the political process has evolved, or at least the extent to which she and the Court majority have never actually understood one another. Her suspicion of the campaign-spending limitations in Harper demonstrates a willingness to engage in more exacting scrutiny of governmental motives than her colleagues.

The Canadian Court is clearly divided concerning the definition of "effective representation" and a "meaningful" vote. To remedy this division, the Court acknowledges that it "must reconcile the right to meaningfully participate in elections under s. 3 with the right to freedom of expression under s. 2(b)" of the Charter. (152) Within this context of uncertainty, Chief Justice McLachlin has identified a challenge to effective expression, effective representation, and meaningful voting: the threat of incumbent entrenchment and the possibility of a "lockup" of the political marketplace posed by government control over political speech and political competition.

Thus, while the Court maintained in the Saskatchewan Reference and its other decisions that a certain amount of deference is due to Parliament when it is balancing competing visions of the collective good and individual assertions of rights, Chief Justice McLachlin made clear in Harper that such deference had to be conditional. The McLachlin Court indicated in Figueroa and Libman that that the Court will not defer to a parliamentary infringement of individual rights simply because it is grounded in a collective vision of equality. Chief Justice McLachlin reiterated this in Harper but did so in dissent.

Feasby acknowledges that a shortcoming of the egalitarian model is that it seems to require "both a deferential approach and strict scrutiny" (153) with regard to democratic rights. The spending decisions in both countries indicate that, whatever we call the two courts' current, common mindset (egalitarian, libertarian, or something in between), the attempt to police the representative process and protect the integrity of the franchise requires courts to be able to pick and choose when to defer and when to invoke strict scrutiny.

Chief Justice McLachlin's writings indicate that her thinking has evolved in a consistent manner despite the fact that the Canadian Court's election-law decisions may appear to be inconsistent. The evolution of her thought is driven by a pragmatism and growing skepticism of legislative motive. It may be acceptable to dilute voting power a little (in terms of redistribution in the Saskatchewan Reference) but not as much when it comes to blunting political competition (in terms of minor political parties in Figueroa) or outright disenfranchisement (Sauve). (154) Competing aspects of democratic theory can be used to defend or challenge any of these decisions. In any event, Chief Justice McLachlin has now asserted that the legislature must provide that a limit on political rights such as speech must be supported by "a clear and convincing demonstration that they are necessary, do not go too far, and enhance more than harm the democratic process." (155)

This very issue pervaded the American Supreme Court's most recent campaign decision, Randall v. Sorrell. In striking down Vermont's contribution and spending restrictions, the court (led by Justice Breyer) held that "contribution limits might sometimes work more harm to protected First Amendment interests than their anticorruption objectives could justify." (156)

Justice Breyer acknowledged on the one hand that "in practice, the legislature is better equipped to make [judgments] related to the costs and nature of running for office." (157) However, Justice Breyer wrote that respect for the legislature's collective expertise was not a carte blanche endorsement of any electoral regulation because
 contribution limits that are too low can also harm the electoral
 process by preventing challengers from mounting effective campaigns
 against incumbent offceholders, thereby reducing democratic
 accountability. Were we to ignore that fact, a statute that seeks
 to regulate campaign contributions could itself prove an obstacle
 to the very electoral fairness it seeks to promote. (158)


Most members of the court addressed the threat of incumbent entrenchment. In fact, Justice Thomas in his concurrence and Justice Souter in his dissent both acknowledged that incumbent protection at the expense of political competition was an important consideration in their analysis of the spending and contribution restrictions.

Insofar as the American and Canadian campaign-spending decisions resonate, it is no longer accurate to say that they lie at opposite extremes of a libertarian-egalitarian dichotomy. Instead of dividing along a libertarian-egalitarian spectrum, the courts of both nations have converged to the extent that members of both (led by Chief Justice McLachlin in Canada and by Justices Kennedy, Scalia, and Breyer in the United States) are now willing to offer only a qualified deference to the legislature when dealing with the regulation of the electoral process. These justices acknowledge that it is no longer clear whether "the legislature" speaks for "the state" or the "collective interest" of the nation, or whether it is simply a temporal governmental majority in "the state's" clothing using an egalitarian cover to disguise attempts to diminish the capacity of the polity to constrain the government.

This does not yet lend itself to a consistent theory of judicial review. What constitutes a "meaningful vote" depends on the relative weight assigned by a particular judge to the diverse aspects of democratic theory. Nonetheless, acknowledging the complexity of a meaningful vote forces both courts to confront the threat to democratic integrity posed by different sorts of barriers to political competition. (159) Distrust of the legislature is grounded in neither an individualistic nor egalitarian conception of the franchise or theory of democracy. Instead, it is based on a desire to protect the right to cast a meaningful vote and otherwise participate meaningfully in a fair and open political market.

To the extent that political incumbents may act out of self-interest and self-preservation, their efforts to tender the political marketplace "more equal" may, in fact, render them less accountable even though they might seem to be promoting more robust political competition. The increased vigilance of both Supreme Courts now demonstrates a common judicial desire to ensure that this enhanced competitiveness among political actors is as real as it is apparent.

To be cited as: (2007) 52 McGill L.J. 457

Mode de reference: (2007) 52 R.D. McGill 457

(1) See e.g. Paul C. Weiler, "Rights and Judges in a Democracy: A New Canadian Version" (1984) 18 U. Mich. J.L. Ref. 51; The Right Honourable Beverley McLachlin, P.C., "Protecting Constitutional Rights: A Comparative View of the United States and Canada" (2nd Canadian Distinguished Annual Address, delivered at the Center for the Study of Canada, Plattsburgh State University, 5 April 2004), online: Supreme Court of Canada <http://www.scc-csc.gc.ca/aboutcourt/judges/speeches/Comparative View_e.asp>.

(2) Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].

(3) Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991) at 167.

(4) Ibid.

(5) [1984] 1 S.C.R. 357 at 367, 9 D.L.R. (4th) 161.

(6) See Weiler, supra note 1. See also Philip L. Bryden, "The Canadian Charter of Rights and Freedoms Is Antidemocratic and Un-Canadian: An Opposing Point of View" in Mark Charlton & Paul Barker, eds., Crosscurrents: Contemporary Political Issues, 4th ed. (Scarborough, Ont.: Nelson, 2002) 103 at 106.

(7) See e.g. John C. Courtney, "The Franchise, Voter Registration and Electoral Districting: Who Says Canada Is Just Like the United States?" (Paper presented at the Annual Meeting of the American Political Science Association, Philadelphia, 28 August 2003 [unpublished]).

(8) 369 U.S. 186 (1962) [Baker].

(9) 377 U.S. 533 (1964) [Reynolds].

(10) Ibid. at 562-63.

(11) It is important to note that the American Court has never applied as stringent a standard to the state legislatures. See e.g. Mahan v. Howell, 410 U.S. 315 at 320-25 (1973). Accordingly, the difference between American and Canadian approaches to "rep by pop" is not really as stark as many observers suggest.

(12) Pub. L. No. 89-110, 79 Stat. 437 (1965) (codified as amended in scattered sections of 42 U.S.C.). Section 2 is codified at 42 U.S.C. 1973 (2000).

(13) See e.g. Justice O'Connor's concurrence in Bush v. Vera, 517 U.S. 952 at 990ff. (1996); Easley v Cromartie, 532 U.S. 234 (2001).

(14) [1991] 2 S.C.R. 158, 81 D.L.R. (4th) 16 [Saskatchewan Reference cited to S.C.R.].

(15) Ibid. at 184.

(16) Ibid.

(17) Undoubtedly, the lack of controversy surrounding the redistribution process in Canada is due in no small part to the use of non-partisan commissions to design legislative district boundaries. See Courtney, supra note 7.

(18) 2002 SCC 68, [2002] 3 S.C.R. 519 at para. 41,294 N.R. 1 [Sauve] [emphasis added].

(19) Colin Feasby, "Issue Advocacy and Third Parties in the United Kingdom and Canada" (2003) 48 McGill L.J. 11 at 13. Feasby is referring to Libman v. Quebec (A.G), [1997] 3 S.C.R. 569, 151 D.L.R. (4th) 385 [Libman cited to S.C.R.] and Bowman v. the Unied Kingdom [GC], no. 141/1996/762/959, [1998] I E.C.H.R. 175, 26 E.H.R.R. 1.

(20) 2004 SCC 33, [2004] 1 S.C.R. 827,239 D.L.R. (4th) 193 [Harper].

(21) Janet L. Hiebert, "Elections, Democracy and Free Speech: More at Stake than an Unfettered Right to Advertise" in Keith Ewing & Samuel Issacharoff, eds., Party Funding and Campaign Financing in International Perspective (Oxford: Hart, 2006) 269 at 287-88 [references omitted].

(22) The reference to the "political thicket" was first employed by Justice Felix Frankfurter in Colegrove v. Green: "To sustain this action would cut very deep into the very being of Congress. Courts ought not to enter this political thicket. The remedy for unfairness in districting is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress" (328 U.S. 549 at 556 (1946)).

(23) "Judicial Review of the Devices of Democracy" (1994) 94 Colum. L. Rev. 1326 at 1340-42.

(24) Daniel H. Lowenstein, "The Supreme Court Has No Theory of Politics--And Be Thankful for Small Favors" in David K. Ryden, ed., The U.S. Supreme Court and the Electoral Process (Washington, D.C.: Georgetown University Press, 2000) 245.

(25) "Liberte, Egalite, Argent: Third Party Election Spending and the Charter" (2004) 42 Alta. L. Rev. 429 at 443.

(26) "Judicial Review and Electoral Democracy: The Contested Status of Political Parties Under the Charter" (2002) 21 Windsor Y.B. Access Just. 479.

(27) "Governance and Anarchy in the S. 2(b) Jurisprudence: A Comment on Vancouver Sun and Harper v. Canada" (2005) 17 N.J.C.L. 71 at 71.

(28) Christopher D. Bredt & Markus F. Kremer, "Section 3 of the Charter: Democratic Rights at the Supreme Court of Canada" (2005) 17 N.J.C.L. 19 at 20.

(29) "Libman v. Quebec (A.G) and the Administration of the Process of Democracy under the Charter: The Emerging Egalitarian Model" (1999) 44 McGill L.J. 5 [Feasby, "Egalitarian Model"]; "The Supreme Court of Canada's Political Theory and the Constitutionality of the Political Finance Regime" in Ewing & Issacharoff, supra note 21, 243 [Feasby, "Political Theory"].

(30) Supra note 21.

(31) Heather MacIvor, "The Charter of Rights and Party Politics: The Impact of the Supreme Court Ruling in Figueroa v. Canada (Attorney General)" (2004) 10:4 Choices 2 [MacIvor, "Party Politics"].

(32) Supra note 23 at 1341.

(33) Christopher Manfredi & Mark Rush, Judging Democracy (Toronto: Broadview) [forthcoming in 2008].

(34) Schauer, supra note 23 at 1341.

(35) Ibid.

(36) See ibid.; Feasby, "Egalitarian Model", supra note 29; Feasby, "Political Theory", supra note 29: MacIvor, "Party Politics", supra note 31.

(37) See Weiler, supra note 1 ; McLachlin, supra note 1.

(38) 424 U.S. 1 (1976) [Buckley].

(39) For an example of such narrow reading, see Hiebert, supra note 21 at 287-88.

(40) (Cambridge: Harvard University Press, 1980).

(41) Samuel Issacharoff & Richard H. Pildes, "Politics as Markets: Partisan Lockups of the Democratic Process" (1998) 50 Stan. L. Rev. 643; Samuel Issacharoff, "Gerrymandering and Political Cartels" (2002) 116 Harv. L. Rev. 593; Michael J. Klarman, "The Puzzling Resistance to Political Process Theory" (1991) 77 Va. L. Rev. 747.

(42) See Richard L. Hasen, "The 'Political Market' Metaphor and Election Law: A Comment On Issacharoff and Pildes" (1998) 50 Stan. L. Rev. 719; Lowenstein, supra note 24 at 258-63. See also Nathaniel Persily, "In Defense of Foxes Guarding Henhouses: The Case for Judicial Acquiescence to Incumbent-Protecting Gerrymanders" (2002) 116 Harv L. Rev. 649. Regarding Ely's work, see e.g. Laurence H. Tribe, "The Puzzling Persistence of Process-Based Constitutional Theories" (1980) 89 Yale L.J. 1063.

(43) Issacharoff & Pildes, supra note 41 at 717.

(44) Ibid. at 645.

(45) Ibid. at 646.

(46) 126 S. Ct. 2479. The American Court dismissed the third/minor party complaint as purely hypothetical in both Buckley, supra note 38 at 33-35 and McConnell v. Federal Election Commission, 540 U.S. 93 at 158-59 (2003) [McConnell]. But in Randall v. Sorrell, a majority of the court was compelled to address the issue--if only to dismiss it.

(47) 2003 SCC 37, [2003] 1 S.C.R. 912, 227 D.L.R. (4th) 1 [Figueroa].

(48) "Political Theory", supra note 29 at 266.

(49) Supra note 46.

(50) Supra note 46.

(51) Supra note 38.

(52) Pub. L. No. 92-225, 86 Stat. 3 (codified as amended at scattered sections of 2, 18, and 47 U.S.C.) [FECA].

(53) See Buckley, supra note 38 at 39-59.

(54) Ibid. at 24-29, 44-59.

(55) Ibid. at 20-21, 24-29.

(56) Ibid. at 21 [references omitted].

(57) To clarify, the Canadian Court refers to such spending as "third-party spending" (Harper, supra note 20 at para. 50). We will try to avoid using this term whenever possible to avoid confusing it with spending by what Americans tend to refer to as "third parties", which, in the Canadian context, would be referred to as "minor parties".

(58) See Buckley, supra note 38 at 24-29, 44-59.

(59) Ibid. at 25-27.

(60) Ibid. at 47-48 [references omitted].

(61) Ibid. at 39-59.

(62) Ibid. at 49, n. 55.

(63) Ibid. at 48-49 [references omitted].

(64) The court did, however, ignore an important problem with the contribution restrictions. Insofar as the campaign-finance scheme in FECA, supra note 52 gave the Democrats and Republicans privileged access to campaign funds in advance of an election (nascent third parties had to wait until after the election and would receive reimbursement only if they garnered at least five per cent of the presidential vote), it did indeed limit the potential diversity of political debate that the court seemed to value so highly. As the court noted:
 Third parties have been completely incapable of matching the major
 parties' ability to raise money and win elections. Congress was, of
 course, aware of this fact of American life, and thus was justified
 in providing both major parties full funding and all other parties
 only a percentage of the major-party entitlement. Identical
 treatment of all parties, on the other hand, "would not only make
 it easy to raid the United States Treasury, it would also
 artificially foster the proliferation of splinter parties." The
 Constitution does not require the Government to "'finance the
 efforts of every nascent political group," merely because Congress
 chose to finance the efforts of the major parties (Buckley, supra
 note 38 at 98 [references omitted]).


As we discuss below, this theme arose in later cases and was a key aspect of Chief Justice McLachlin's dissent in Harper, supra note 20.

(65) Ibid. at 26-27, 47, 246.

(66) Politics and the Constitution: The Charter. Federalism and the Supreme Court of Canada (Toronto: Carswell, 1987) at 134.

(67) Feasby, "Egalitarian Model", supra note 29: Feasby, "Political Theory", supra note 29; MacIvor, "Party Politics", supra note 31.

(68) Supra note 23.

(69) Ibid. at 1341.

(70) Ibid.

(71) "Egalitarian Model", supra note 29 at 20.

(72) Ibid. at 21.

(73) Ibid. at 7-8.

(74) Ibid. at 8.

(75) Ibid.

(76) Ibid. at 10.

(77) Ibid. at 11, citing Owen M. Fiss, The Irony of Free Speech (Cambridge: Haward University Press, 1996) at 3-4 [text inserted by Feasby]. See also Cass R. Sunstein, Democracy and the Problem of Free Speech (Toronto: Maxwell Macmillan, 1993); Owen M. Fiss, "Money and Politics" (1997) 97 Colum. L. Rev. 2470.

(78) Feasby, ibid. at 19.

(79) Ibid. [footnotes omitted].

(80) "Egalitarian Model", supra note 29 at 7; "Political Theory", supra note 29 at 248-53.

(81) Supra note 19.

(82) R.S.Q. c. C-64.1. The impugned provisions in Libman, supra note 19 were ss. 402, 403, 404, 406(3), 413, 414, 416, and 417 of the Quebec Election Act, R.S.Q. c. E-3.3., as am. by Referendum Act, ibid., app. 2, in accordance with Referendum Act, ibid., s. 45.

(83) Election Act, ibid., as am. by Referendum Act, ibid., app. 2, s. 413.

(84) Libman, supra note 19 at para. 40.

(85) "Egalitarian Model", supra note 29 at 31.

(86) R.S.C. 1985, c. E-2, as rep. by Canada Elections Act, S.C. 2000, c. 9.

(87) Lihman, supra note 19 at para. 41.

(88) Ibid. at para. 77.

(89) Supra note 47.

(90) See Figueroa, ibid. (Factum of the Respondent), cited in MacIvor, "Party Politics", supra note 31 at 11, 13.

(91) MacIvor, ibid. at 5; Feasby, "Political Theory", supra note 29 at 251-53. In fact, MacIvor states that "Libman demonstrated that the libertarian approach was a nonstarter at the Supreme Court of Canada" (ibid. at 13).

(92) Ibid. at 13.

(93) "Political Theory", supra note 29 at 252.

(94) Figueroa, supra note 47 at para. 28, citing R. v. Keegstra, [1990] 3 S.C.R. 697 at 764, 114 A.R. 81.

(95) Figuero, ibid. at para. 30.

(96) Ibid. at para. 54.

(97) See Bredt & Kremer, supra note 28.

(98) Supra note 47 at para. 26.

(99) "Party Politics", supra note 31 at 7.

(100) Supra note 47 at para. 101.

(101) Supra note 14.

(102) Figueroa, supra note 47 at para. 108.

(103) Ibid. at para. 36 [emphasis in original].

(104) "Political Theory", supra note 29.

(105) Figueroa, supra note 47 at para. 114.

(106) Ibid. at para. 117.

(107) Cf. Bredt & Kremer, supra note 28 at 65-67 (questioning why the Court allows dilution of voting power in some cases (urban voters in the Saskatchewan Reference, supra note 14) but not others (minor party supporters in Figueroa, supra note 47)).

(108) Supra note 8 at 266-330. In dissent, Justice Frankfurter asserted that the legislature was better equipped than the courts to weigh competing theories of democracy.

(109) Figueroa, supra note 47 at para. 101.

(110) Ibid. at para. 181.

(111) Supra note 20.

(112) S.C. 2000, c. 9.

(113) Harper, supra note 20 at para. 62.

(114) Ibid. at para. 63.

(115) Ibid. at para. 91.

(116) Ibid. at para. 72 [references omitted].

(117) Ibid, at para. 118.

(118) Ibid. at para. 62.

(119) Supra note 46 at 247, Scalia J., dissenting: ibid. at 286, Kennedy J., dissenting.

(120) Supra note 20 at para 34.

(121) See Figueroa, supra note 47 at paras. 33-37.

(122) Supra note 20 at paras. 80-81, Bastarache J. [references omitted].

(123) See e.g. "Victory for Democracy," Editorial, Toronto Star (20 May 2004) A28; Allan Hutchison, "The Court Shushes the Rich" The Globe and Mail (19 May 2004) A21.

(124) Supra note 112.

(125) Harper, supra note 20 at para. 9.

(126) Ibid. at para. 19.

(127) Ibid. at para. 21.

(128) Ed. & trans, by Harvey C. Mansfield & Delba Winthrop (Chicago: University of Chicago Press, 2000).

(129) Ibid. vol. 2, part 2, c. 1-4.

(130) Supra note 46.

(136) Ibid. at 150 [references omitted].

(137) 528 U.S. 377 (2000) [Shrink Missouri].

(138) Ibid. at 399-405, concurring.

(139) Ibid. at 400.

(140) Ibid [emphasis in original].

(141) Ibid. at 401.

(142) Ibid.

(143) Ibid. at 401-403 [references omitted].

(144) See Part IV. A, above.

(145) McConnell, supra note 46 at 247, Scalia J., dissenting; ibid. at 286, Kennedy J., dissenting.

(146) Ibid. at 306 [references omitted].

(147) Ibid. at 291-94 [references omitted].

(148) Ibid. at 294.

(149) Ibid. at 286.

(150) Ibid. at 248.

(151) Ibid. at 249 [emphasis in original].

(152) Harper, supra note 20 at para. 50.

(153) "Political Theory", supra note 29 at 266.

(154) Supra note 18.

(155) Harper, supra note 20 at para. 21 [emphasis added].

(156) Randall v. Sorrell, supra note 46 at 2491-92 [emphasis in original].

(157) Ibid. at 2492.

(158) Ibid.

(159) See generally Issacharoff & Pildes, supra note 41; Klarman, supra note 41; Ely, supra note 40; Lowenstein, supra note 24; Hasen, supra note 42; Persily, supra note 42; Tribe, supra note 42.

Christopher Manfredi and Mark Rush *

* Christopher Manffedi, Dean of Arts, McGill University; Mark Rush, Robert G. Brown Professor of Law and Politics, Director of the Program in International Finance and Commerce, Williams School of Commerce, Economics and Politics, Washington and Lee University. We gratefully acknowledge the support of the Social Science and Humanities Research Council of Canada and the Canadian Studies Grant Program of the Embassy of Canada in the United States.

[c] Christopher Manfredi and Mark Rush 2007
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