Looks like I'm not the only one...

...to view the whole election financing issue the way I do.

The Tories might have a point ...
John Robson - The Ottawa Citizen
Friday, April 25, 2008

In the battle pitting the federal Conservatives against Elections Canada, the opposition and the press, a typical Ottawa competition to see who can perform most discreditably, my money was on the Tories. Until I made a crucial blunder: I did research.

The key issue is whether the Conservative party, in the last election, could donate money to riding associations to purchase advertisements very similar to national ones without those ads being counted against national campaign spending and putting the party over the national legal spending limit. It was, at least to begin with, a dispute not about facts but about how to interpret the law.

At this point I foolishly read what I hope were all the relevant sections of the 500-plus page Canada Elections Act. Here, in unavoidable legalese, is what I found.

The Act does set separate spending limits for registered parties (clause 422.1) and for their candidates (clauses 440 and 441). But Clause 422 (2) lets parties give money to local candidates and not count it as "an election expense..." So the key question is whether those candidates can spend that or any other money, up to their local limit, on what is essentially national advertising. And the crucial Clause 407 (1) defines an "election expense" as "any cost incurred, or non-monetary contribution received, by a registered party or a candidate, to the extent that the property or service for which the cost was incurred, or the nonmonetary contribution received, is used to directly promote or oppose a registered party, its leader or a candidate during an election period." What in there says local spending must happen locally or concern local issues? I see nothing.

Of course the courts might not agree with my interpretation. Or they may say the Tories did a legal thing but in a carelessly illegal way; one Liberal staffer suggested to me that the central problem was that local candidates did not technically "incur" the costs in question. Even if true, that claim hardly justifies Liberal MP Dominic LeBlanc's reference to "an Enron-style accounting practice" at a Thursday press conference.

If recent allegations of document-tampering are substantiated, it's a whole different matter. But my legal opinion, worth what you paid for it less the cost of this newspaper, is that the Tories are right, even if too clever by half, on the initial issue.

It has been suggested that this dispute reflects hostility between Elections Canada and the prime minister going back to his former life as libertarian head of the National Citizens' Coalition, waging court battles against what the coalition (rightly, in my view) called election "gag laws."

But if so, it doesn't prove the primary fault lies with the Tories. I want a court to rule whether the dramatic police raid on Conservative party headquarters was necessary. And I'd certainly like to know how not only journalists but Liberal staffers heard of it in time to film it.

Especially because former Chief Electoral Officer Jean-Pierre Kingsley took a strangely vocal role in policy debates for the head of an organization that, as part of the executive not the legislative branch of government, is supposed to enforce laws not create them. Liberal MP Ken Dryden wrote in the Toronto Star on Wednesday that the Tory financing scheme "isn't what Elections Canada intended" and that "Elections Canada set national and local limits" because it "intended that national spending be for national purposes, and local spending for local purposes..." as if it, not Parliament, had created the Canada Elections Act. Then Mr. Dryden waved away the Tory position because "Elections Canada has ruled that for advertising to be considered local, it must directly promote that local candidate or oppose his or her opponent...," as if the centuries-old struggle to keep the executive branch from creating law and acting as judge in its own case had recently been quietly and benignly settled in favour of Charles I.

Mr. Dryden in his article and Mr. LeBlanc in his press conference both cited the Canada Elections Act provision that you cannot do indirectly what is expressly prohibited directly. OK. But it cannot be read as a Phantom of the Paradise style "All clauses that are excluded shall be deemed to be included" provision. If the Act does not directly forbid local candidates buying national ads, it does not indirectly forbid it either.

The Tories responded to this ruckus in a manner at once paranoid and juvenile and it worked about as well as you'd expect. But it doesn't mean there's anything scandalous in their challenging a technical Elections Canada ruling in court, even if they ultimately lose.

Besides, on my reading of the law, they might win.

John Robson's column appears weekly.

© The Ottawa Citizen 2008