"As to the evil which results from a censorship, it is impossible to measure it, for it is impossible to tell where it ends." -- Philosopher Jeremy Bentham 1748-1832
Does freedom of speech end when an election starts?
Is it permissible to impose censorship on public debate for the entire province when by-elections are held in just two of 85 ridings?
And is a penalty of $3.2 million and a ban on running any advertising in the 2013 provincial election a fair way to punish even an inadvertent, momentary transgression of highly debatable rules that are inconsistently applied?
Those are the questions a B.C. Supreme Court justice will have to answer after Elections BC imposed a shocking $3.2 million fine on the B.C. Government and Service Employees Union for allegedly violating rules severely limiting advertising, during two recent by-elections.
The case is far more important than for just its potentially devastating financial impact on the BCGEU, which is appealing the decision in court, because it could seriously censor all organizations' ability to communicate with the public during the next election.
The facts behind Elections BC's decision to levy a massive fine make no sense at all.
The BCGEU was running television ads this spring to support its bargaining for a new contract with its employer, the provincial government. Watch one at the top of this article.
When B.C. Liberal Premier Christy Clark called two by-elections on March 22, the BCGEU contacted Elections BC to ask if the independent body would regard ads already being broadcast as "election ads" under legislation that severely restricts advertising during a vote.
Yes indeed they would, came the word back via email from Elections BC just before 5 p.m. on Friday, March 23. It was overlooked until Tuesday, at which point BCGEU pulled all advertising across B.C.
The ads are straightforward and do not mention any political party. In them, BCGEU members telling viewers that: "a decade of falling behind from government cuts and wage freezes has hurt us and the services you rely on."
But under B.C.'s ridiculously punitive Election Act, elections ads are those that "...promote or oppose, directly or indirectly, a registered political party or the election of a candidate, including an advertising message that takes a position on an issue with which a registered political party or candidate is associated."
That pretty much means anything worth talking about!
And the limits on spending are extraordinary: a maximum of $3,000 in one riding and $150,000 across the province in total.
A limit of $3,000 during the election campaign period would mean a business, union, non-profit or group of citizens could maybe buy a small ad in a newspaper at the most -- leaving all other advertising to political parties.
The penalties are extraordinary as well: a fine of 10 times the amount overspent by any advertiser.
Elections BC also bizarrely ruled that even though there were by-elections in just two ridings, with the entire BCGEU ad budget at $280,000 for the whole campaign, the union overspent the $3,000 limit by over $159,000 in each riding. The $318,000 total is more than the actual campaign cost.
So take $159,000 times two, then multiply it by ten and presto -- you owe us $3.2 million!
Calling it absurd doesn't even begin to describe this case.
BCGEU spokesperson Chris Bradshaw said in a Sunday interview that the union will argue in court that Elections BC erred in calling the campaign "elections ads," was wrong in calculating the fine and imposing it despite BCGEU consulting them and withdrawing the ads promptly.
"It means essentially that our ability to communicate with our members, the public and taxpayers is severely limited," if the legislation and fine are upheld, Bradshaw said.
One doesn't have to be a union supporter to see that businesses, non-profits or citizens who want to speak their mind during the next election would also be silenced if this draconian law and ruling aren't tossed out.
Could Mothers Against Drunk Driving ads be subject to these rules?
Why not? Elections BC could easily argue that since the B.C. Liberals introduced tougher laws on drinking drivers, the ads promote "a position on an issue with which a registered political party or candidate is associated."
Highly selective prosecution
But don't expect any changes from the B.C. Liberal government to return some sanity to election advertising.
When the B.C. Liberals desperately wanted the Harmonized Sales Tax to pass a binding referendum last year, they exempted that vote from not only any spending limits but even basic financial disclosure rules.
The government spent at least $6 million and big business supporters in the Smart Tax Alliance an untold amount of millions more, knowing that Fight HST -- the group I helped create -- had a budget of less than $300,000 by comparison.
And on the BCGEU case, Chilliwack backbench B.C. Liberal MLA John Les not only pilloried the union but couldn't resist a little prevarication too.
"The BCGEU had a choice to pull their ads in support of the NDP. Instead, they decided the rules didn't apply to them," Les said, ignoring the fact that the ads were about their contract negotiations, that the union consulted Elections BC about those rules and did pull the ads shortly thereafter.
The BCGEU points out that its ads were already on air when the by-elections were called.
"We don't know when they're calling a by-election -- we pulled the ads as soon as we read the Elections BC email," Bradshaw says. "But you can't just flip a switch and them off air -- it takes awhile."
And even former Elections BC chief electoral officer Harry Neufeld admitted when the advertising rules were introduced that "in some cases it can be difficult to determine if an activity is election advertising."
The next question is who else will be investigated and fined by Elections BC, because the BCGEU wasn't the only organization running advocacy advertising during the same period, just the only one being punished.
Read more: Politics, BC Election 2013
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