Geoff Plant was British Columbia's Liberal attorney-general from 2001 to 2005. He practises law with Gall Legge Grant Zwack in Vancouver
Once the celebration and critique have faded, the acid test of all legislation is whether it will solve the problem it is intended to address. That's the lens through which the NDP's election finance reform bill must be seen.
There's no doubt about the goal: to limit the influence of money on politics. There's a lot more room for doubt about whether it will do so.
The bill's problems start with its most basic feature, the $1,200 annual contribution limit. For a well-off married couple with adult children who happen to share their parents' political views, there's an opportunity to donate thousands of dollars a year, easily affordable for the well-to-do, but entirely out of reach for most citizens. The $1,200 is better than no limit, but those with money will still have more influence than those who do not.
The bill also proposes two new public subsidies for political parties and election campaigns. Parties will receive a taxpayer-funded annual allowance and half of their election expenses will be refunded by government. The answer for the problem of too much private money in politics is not more public money. Elections ought to be about giving citizens the right to choose their politicians; this bill instead turns them into a highly regulated state-subsidy scheme.
But there's a deeper problem. The NDP say its legislation will take $65-million in private money out of politics. That begs the question: where will the money go? The answer is that it will find other pathways to influence.
In the United States, the law limits the amounts that can be contributed to the campaigns of candidates for federal public office. No one would seriously suggest that big money has no influence over U.S. politics. In part, this is because there are loopholes in U.S. regulations. For example, while there are limits on contributions made directly to specific candidates, there are no limits on contributions made for party building in general. Money spent on advertising that supports a party platform or idea as opposed to a specific candidate is not caught by the restrictions.
But in addition to these loopholes – some of which are already addressed in our elections legislation and will be further tightened in the NDP bill – there is a more powerful way in which money influences U.S. politics. That is through the use of what are called political action committees – PACs – and in particular, super PACs. These are organizations that can raise and spend money without limit, as long as they do so independently of campaigns.
In addition, so-called "social welfare" organizations may also participate in political campaigns and elections as long as that is not their sole activity. These include such well-known fixtures of the U.S. political landscape as Planned Parenthood and the National Rifle Association. These organizations are hugely successful and influential, they raise and spend hundreds of millions of dollars and here's the important fact: they are not required to publish donor lists.
Readers of Jane Mayer's 2016 book Dark Money will be well-schooled in the strategies wealthy Americans have developed to influence politics in that country. Mayer's research focuses on rich conservatives such as the Koch brothers, who have spent hundreds of millions of dollars over the years to support conservative ideas and politicians. Similar stories might also be told about fund raising to support liberal causes. It's called dark money because there are no disclosure requirements. It's sobering stuff.
Here in British Columbia, our election campaigns are already highly regulated.
During elections, campaign spending is limited and donations must be accounted for. Third-party election advertising is also highly regulated. Between elections, however, there is no limit on what citizens, corporations or organizations may say or do or spend to disseminate their views, whether in private conversation or on billboards or TV screens. Not only is there no restriction on how much may be spent, there is no requirement to disclose where the money came from.
The complex regulations introduced by the NDP's bill do not touch this activity. But the effect of their scheme will be to drive private money away from publicly transparent donations to parties, campaigns and candidates and into the invisibly funded advocacy organizations who will be increasingly able to influence our political discourse.
Their influence may be less obvious during the three or four months of an election campaign, but public opinion and political action can be profoundly affected during the months and years in between elections.
Some of this already happens, of course. So what will this bill change, apart from increasing the public cost of elections? Will it end cash for access? There will be changes, but the truly powerful have never needed an event ticket to get an audience with a politician. That won't change, even though British Columbia will become the only place I know of that regulates dinner parties.
More fundamentally, will money disappear from politics? No, but we will know less than we do now about where it comes from and how it is being spent.
The best tonic for the ailment of too much money in politics is not the unwieldy (and expensive) hand of the regulator, it is the disinfectant of disclosure and the ballot box.
Tell voters who is donating and to whom, and let voters decide what to do about it. The outrage over the fundraising practices of the former governing party is a big reason they are no longer in government.
That's democracy doing what it does best.