Careful what you wish for, Prof. Mendes

Colby Cosh on how we might as well go ahead and hold the funeral if democracy is so easily buyable
Rebecca W/Flickr

Political newspaper iPolitics.ca accidentally unearths a breaking story, as liberal law professor Errol Mendes uses its electronic pages to praise the U.S. Supreme Court’s Citizens United decision. In Citizens United SCOTUS ruled that campaign-finance law must treat corporations, unions, and other groups as though they have the same speech rights as the individual people of which they are made up. The American left cannot mention this heinous act of pro-corporate radicalism without ejecting a fount of furious spittle; the “repeal” of corporate personhood is, for example, the first and foremost demand of the Occupy Wall Street protesters and their allies elsewhere. President Obama memorably denounced Citizens United from the podium, staring the nine justices right in the eyes, in his 2010 State of the Union address. But Mendes apparently thinks corporate speech is an “important form of political expression” and that it may be protected by our Charter. Damn, Canada really is moving rightward!

Mendes argues that the public per-vote subsidy to Canadian political parties is a “trade-off” necessitated by the Chretien government’s cutoff of corporate and union donations. He thinks that the Harper government is moving slowly on eliminating the subsidy in order to avoid a constitutional challenge. It is not clear to me, from his argument, how that would help. When the money eventually runs out, anybody with standing will still be free to sue—though that would be a hard thing for a political party as such to do, since they do not enjoy the same kind of corporate legal existence as a company, a partnership, or labour union. (Parties are very quick to avail themselves of this elusive quality when someone tries to sue them.) It is not even clear how it was really a “trade-off” to quash the speech rights of corporate beings and give a bunch of money to political parties: what did the corporations and the unions receive in exchange for their loss of political power?

The most revealing part of Mendes’ argument comes at the end, where he treats the Conservative power to fund-raise among individuals as some inherent, unearned endowment of the party, as opposed to an actual expression of democracy:

The introduction by stealth of the phased reduction could be an attempt to undermine […] a constitutional challenge. However, if the lower levels of the subsidy result in a grossly unbalanced Canadian democracy, where the much deeper war chests of the Conservative Party amounts to buying successive elections through saturation levels of attack and other ads, the ending of the constitutional trade-off even with the phased reduction could well be litigated in the courts. Democracy in Canada could die a slow death as a result of the actions taken by Stephen Harper to financially suffocate the main opposition parties that could topple his government.

He offers no evidence that elections can be “bought” by sheer volume of media purchasing, for the very good reason that the whole idea is demonstrable nonsense. But even if it were true, wouldn’t the natural answer be for the non-Conservative parties to go out and hunt for the same individual donations that the Conservatives gather in such overwhelming quantities? It’s not a structural problem with our democracy that lots of people give small amounts of money to the Conservatives, and don’t like to give it to the Liberals, at all, or to the New Democrats, quite as much. Things could change as sentiment changes and the Conservatives bear the burdens of power. Given time, they are certain to change.

I’m confident Mendes does not really believe that Canadian democracy is in danger of a “slow death”. That is merely the kind of thing hysterical Liberals say when what they’re really concerned about is their party going the way of the British Liberals. (Democracy in the UK survived, somehow.) If democracy really has the slow-moving, predictable, easily buyable character Mendes ascribes to it, we might as well go ahead and hold the funeral.

The funniest response to his concerns, of course, would be for the Conservatives to accept his “tradeoff” theory and let corporations back into the funding of federal electioneering, precisely in accord with Citizens United. Does he suppose corporate Canada would go running back to the Liberals now? Or would the individual-donor advantage that the Tories now enjoy be enormously magnified?