Independents could face even tougher battle under new election rules

Few political observers would disagree that independent candidates face a steep uphill electoral battle.

But the Conservative proposal to give parties what would amount to a blank cheque for fundraising between election periods — specifically, making a party's calls, emails and other communications with anyone who has donated $20 within the past five years exempt from campaign spending limits — could make it even more difficult for those not aligned with a political party to keep up with the pack while on the hustings.

In an interview with host Evan Solomon on CBC Radio's The House, Chief Electoral Officer Marc Mayrand warned that such an exemption could raise questions about ensuring a "fair, level playing field" for all electoral contenders.

"That would affect what we call in the business the 'get-out-the-vote,' which is becoming increasingly a significant expenditure for campaign," he told The House.

"We estimate ... based on what we can figure out from the returns we received, that maybe 20, 25 per cent of the total expenditure goes to 'get-out-the-vote' process.

"If I understand the provision correctly, that means that over and above the five per cent (campaign spending increase) mentioned earlier, a party could spend about 20 per cent more as long as it's linked to fundraising," Mayrand said.

That, in turn, could create a built-in advantage for existing parties and incumbent candidates.

"A new party coming in, new candidates coming in would not likely have any contributors from the past, so immediately, they face a gap of not only the spending limit, but 20 per cent more," he said.

Independent candidates would also be affected

Although Mayrand didn't specifically mention independents, that same logic would seem to apply to their campaigns, as they, too, would also have a far smaller — or, in some cases, virtually non-existent — number of previous donors who could be contacted without fear of exceeding the expense cap.

The government's latest attempt to tweak Canada's election laws gave Conservative-turned-Independent MP Brent Rathgeber an opportunity to outline his concerns over what he sees as "an explicit bias towards political parties" that the proposed changes would do nothing to address.

"Most Canadians (over 98 per cent) do not belong to political parties," he noted in a post to his blog entitled "Fairness is in the eye of the beholder."

Yet those parties, along with local riding associations, "have the exclusive right to raise money and issue tax credit receipts outside of an election period," which means they can raise money "52 weeks per year."

Meanwhile, he points out, an independent candidate "can only issue receipts after he or she has been declared a candidate by Elections Canada," which can only take place after an election has been called and the putative candidate has met the necessary criteria to be officially registered. That includes collecting the names, addresses and signatures of at least 100 qualified electors from the riding in which he or she hopes to run, as well as a $1,000 deposit.

The unequal treatment continues even after the race is over, according to Rathgeber.

"A party candidate may transfer any electoral surplus to a riding association or registered party, while an Independent candidate must remit surplus funds to the Receiver General of Canada," he notes.

"Finally, a party-endorsed candidate is eligible to receive 50 per cent reimbursement for qualified election expenses, provided the Candidate received 5 per cent or more of the votes. Independent candidates are not similarly qualified for a refund."

The end result of the above rules, from Rathgeber's perspective: "In the 2015 General Election, the Conservative candidate will be campaigning to unseat me using, in part, funds that I raised or was reimbursed for in 2011!"

Possible court challenge

So, what can Rathgeber do to make sure his voice — and the voice of other independents — is heard during the review of the proposed amendments?

"If I'm invited to present at the committee, I would attend," he told CBC News by email.

"However, I have limited faith in the committee system, where a majority of members take their instructions from PMO."

Those who seek changes, he says, "will have to pursue a different avenue." That could include a court challenge over whether the current rules violates the Canadian Charter of Rights and Freedoms, which guarantees that every Canadian has the right to vote in elections and be qualified for membership in the Commons.

"What about the vast majority of Canadians who choose not to join a registered political party? Certainly they can vote and Independent candidates can seek office," Rathgeber notes on his blog.

"But is doing so on such an unlevelled playing field a violation of their democratic rights?"

Retired MP Bill Casey — who, like Rathgeber was initially elected Conservative but left the party to sit as an Independent and, it's worth noting, was actually re-elected despite a concerted effort by the local Conservatives to unseat him — is also hoping to share his thoughts with the committee.

In a letter to Minister of State for Democratic Reform Pierre Poilievre citing similar issues to those detailed by Rathgeber, Casey also points out that party-affiliated candidates can prepare for an election by buying signs, brochures and other material through the riding association.

"An independent candidate cannot incur any expenses or make any purchases until after the election starts" — and even then, once again, only after being registered as an official candidate.

As for the proposal to give parties a free pass to make fund-raising calls during elections, he, too, fears it will "increase the disadvantage" for independent candidates.

In response to a query from CBC News, a spokesperson for Poilievre stressed that the rules governing candidates — and, more specifically, the power to accept contributions and issue receipts — are applied identically across the board, to independent and party-aligned candidates alike. 

"We encourage the committee to consider and study all these questions," said Gabrielle Renaud-Mattey.  

Opposition parties share concerns

Although neither Rathgeber nor Casey are guaranteed a speaking slot at committee, they may just be able to count on at least one opposition party to make the case for fair play for independents.  

NDP democratic reform critic Craig Scott told CBC News he finds provision exempting fundraising costs "extremely problematic," since he believes it would benefit the Conservative Party over any others, given their extensive database.

Even so, he agreed that independents candidates "would be even more compromised."

"Almost by definition, they don't have pre-existing donor bases going back five years to be able to exclude from expenses," he noted.

"If they're concerned, they have every reason to be."

As for the existing biases in favour of party candidates, he admits that he only recently became aware of those concerns after being alerted to the issue by Rathgeber.

"It's on my radar now," he noted. 

He hopes that independents — both sitting MPs or those who they believe would speak well on the subject — let the committee know that they have something to say.

"They count as the Canadians who would are going to get short shrift under this bill."