Bill C-2, the Federal Accountability Act, was introduced in the House of Commons on April 11, 2006 by John Baird, Member of Parliament for Ottawa West-Nepean and President of the Treasury Board in the Harper Cabinet. The full name of the bill is An Act Providing for Conflict of Interest Rules, Restrictions on Election Financing and Measures Respecting Administrative Transparency, Oversight and Accountability.

The bill underwent second reading in the House of Commons from April 25-27, then underwent review by a special legislative committee and was passed on June 21. It received unanimous support as a whole, while various amendments to it were not agreed upon by all parties in the House. The bill passed first reading in the Senate on June 22 and second reading on June 27. It is now under review by the Senate Standing Committee on Legal and Constitutional Affairs which held hearings on the bill from June 27-29 prior to the summer recess. The Committee reconvened on September 5 and will hear testimony from more than 70 witnesses over the next several weeks. Anna Di Carlo, Secretary of the Marxist-Leninist Party of Canada (MLPC), appeared before the Senate Committee on September 7 to discuss the MLPC's views on the proposed changes to the Canada Elections Act contained in the Federal Accountability Act.

According to the Parliamentary Summary of Bill C-2, the 270-page document contains 317 clauses that will amend over 60 existing pieces of legislation. Speaking to the bill at second-reading stage, Baird declared that the Act is "about moving from a culture of entitlement to a culture of accountability. It is about making everyone in government more accountable to Canadians." He further stated that "The goal of the accountability act is to improve the level of trust that Canadians have in their government and in their elected officials. We know that we have a long way to go to rebuild the public trust that was so egregiously violated by a slew of scandals that culminated in the Gomery commission."

Posted below is the brief submitted by the MLPC on Bill C-2 to the Senate Standing Committee on Legal and Constitutional Affairs.

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The Honourable Senator Donald H. Oliver
Chairperson
Senate Standing Committee on Legal and Constitutional Affairs

Mr. Chairperson and Members of the Committee,

Bill C-2, the Federal Accountability Act, has been presented with the stated aim of improving "the level of trust that Canadians have in their government and in their elected officials." The public trust, it is said, has been violated by the scandals that culminated in the Gomery Commission, and Bill C-2 is meant to prevent a repeat of such things.

One of the main concerns of the Federal Accountability Act involves changes to the Canada Elections Act. This brief addresses some of these changes and argues why they will not achieve the stated aim of the Act.

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The background material published by the Harper government on the Federal Accountability Act cites the reform of the financing of political parties as one of its key elements, providing the following context: "The Canada Elections Act governs campaign donations and the financing of political parties and candidates in Canada. The law ensures transparency and regulates the financial relations and operations of political parties and candidates. However, more needs to be done to rebuild public confidence in the integrity of the democratic process, and to ensure that influence cannot be bought through political donations. Donations from corporations, unions and organizations are of particular concern, since they currently allow for a contribution of funds from unknown original sources."

The background material explains that in regards to political financing, the purpose of the Federal Accountability Act is to "toughen the laws around the financing of political parties and candidates to reduce the opportunity to exert influence through large donations." The Harper government presents the changes to the Canada Elections Act as a means "to increase transparency, reduce opportunities to influence politicians with contributions, and help Canadians feel more confident about the integrity of the democratic process." In addition, it is claimed that the changes "will level the playing field among individual contributors, and encourage political parties to engage the electorate more freely."

Surely then, our duty is to look at the proposed changes and see whether they will achieve the stated aim and from that draw warranted conclusions.

Having studied the proposed changes, it is our opinion that they will not achieve the stated aim. One reason may be that there has been no deliberation on what led to the Sponsorship Scandal in the first place. Establishing that wrongdoing took place and even describing some of it and establishing fault in the cases examined is not sufficient. Blame and responsibility are not one and the same. We have the case of the two American pilots who were found to be at fault and blamed for killing four Canadians soldiers in what is called a friendly fire incident but where did the responsibility lie? Why do we have repeated cases of Canadians killed in "friendly fire" incidents?

In the case of the investigation into the Sponsorship Program, while touching upon how public money made its way into Liberal Party coffers, the problem of why such a situation came into being has not been tackled. There was no examination of the desperate need of certain political parties for money in general and no examination of what it was that drove a long-established political party in Canada to steal funds from the public purse. In other words, there was no examination of the crisis in which the party-dominated system of representative democracy is mired or of the electoral process designed to bring political parties to power, why the people feel disempowered or how they are reduced to the status of voting cattle. Instead, the matter has been consigned to the existence of some unscrupulous individuals in the Liberal Party and in the public service, some flaws in the administrative processes, and a lack of adequate policing.

The practice, norm or code of conduct of Ministerial responsibility which prevailed not so long ago as a mechanism to ensure there was accountability was simply discarded. The implications of this on the polity are not even being considered. Individual Canadians, individual members of political parties, political parties themselves, Members of Parliament, civil servants -- all have been put into an untenable situation of not knowing what to expect. New laws are enacted without deliberation worthy of the name and they are railroaded through to further partisan interests on the basis of sophistic, self-serving argument such as the following example: The aim is accountability, transparency, changing the way government works. These changes will accomplish this aim. The changes are good because the aim is good and Canadians want this aim. So anyone who opposes these changes is opposing what Canadians want.

In our opinion, the measures contained in the Act and the manner it is being dealt with show that the aim is not serious. It merely has propaganda value. Who sets the aim and what the aim may be is not discussed or approved but taken as righteous.

The solution to a serious problem is then presented in the form of increased state regulation of political parties and increased surveillance, policing and prosecution of public office holders and public servants.

The Context

The Gomery Inquiry brought out the fact that the Sponsorship Program was conceived during a retreat of the Liberal Party Cabinet on February 1-2, 1996. At that Cabinet retreat, the principal subject of discussion was a report containing recommendations on national unity that Minister of Intergovernmental Affairs Marcel Massé had been assigned to prepare. Among other things, the Report recommended "a substantial strengthening of the organization of the Liberal Party of Canada in Quebec. This means hiring organizers, finding candidates, identifying ridings that are winnable in the next federal election, and using the most modern political techniques of reaching targeted voters." Other recommendations related to "increasing the federal presence in Quebec," which has come to be known as a euphemism for interference in the political affairs of the people of Quebec, some of it illegal, as was the case during the 1995 referendum "unity rally."

The view of the Liberal Cabinet that getting Liberals elected in Quebec was the solution to Canada's constitutional crisis and the decision to do this at all cost, combined with the refusal of the Government of Canada to recognize the right of the people of Quebec to self-determination, up to and including secession if they so desire, led to what is now known as the Sponsorship Scandal. The ensuing activities involved a kick-back scheme through which funds were channelled into the coffers of the Liberal Party and electoral campaigns that were illegally funded.

To this day, the facts related to this have not been fully investigated and nobody has been held to account for violations of the Canada Elections Act. How can we expect politicians to be held accountable in the future in such a situation is a legitimate question. The Liberal Party was absolved by purging some of its members and paying back to the state treasury the money it received through known government contract kick-backs. The fact that it used public money to pay back the taxpayers, money which was given to it according to votes received through fraudulent election campaigns, was not even considered a matter of concern.

The Notion That the Absence of Law Is the Problem

In terms of political financing, the overall approach contained in the Federal Accountability Act according to which the problem is one of law and order, is to increase the laws and restrictions on contributions and to extend the amount of time under which prosecution can be initiated. The key, according to the Prime Minister, is to "toughen the laws." In terms of the functioning of the civil service, a similar approach is taken.

In the opinion of the Marxist-Leninist Party of Canada (MLPC), the notion that the problem is an absence of law is ridiculous. For example, one of the sections of the explanatory notes to the Federal Accountability Act has a headline reading: "Ban Secret Donations to Political Candidates." By definition a "secret donation" is not known, so the notion that such contributions can be banned is ludicrous to say the least. The activities which led to the Sponsorship Scandal were not committed as a result of the absence of law but involved breaking the law and breaking it with impunity for years on end. The facts show that through the Sponsorship Program, the existing laws were violated by officials of the Liberal Party who attempted to fix the results of several elections and by-elections in Quebec by circumventing the electoral laws.

One of the proposed changes to the Canada Elections Act is that cash contributions over $20 will be illegal and all contributions regardless of the form will have to be receipted at the $20.00 point. The picture that remains in everyone's mind in terms of corruption and the Sponsorship Scandal is the bags of money being handed over in restaurants. Members of Parliament and Senators deliberating on this Act cannot be so blind as to suggest that such a prohibition can prevent money from being illicitly used to influence political affairs in the future. In fact, a one-sided approach is being taken which further discriminates against the involvement of ordinary citizens in building political parties. So long as elections remain primarily all about money, not citizen empowerment to exercise control over their choices and elected representatives and governments, all these changes actually facilitate the increasing concentration of power in fewer hands which is in itself one of the factors that facilitates corruption, patronage and cronyism.

The Effect of Bill C-2 on Political Formations: Violation of the Right to Freedom of Association

When Bill C-24, An Act to Amend the Canada Elections Act and the Income Tax Act (Political Financing), was introduced by the Liberals, the MLPC argued that limits on contributions to registered political parties constituted a violation of the right to freedom of association. Freedom of association is generally understood to mean that no one can be penalized for forming any association they choose so long as the aims of the association are not to break the law. The reality of Bill C-2 is that one of the elements of freedom of association -- fund-raising to build that association -- has itself become a criminal act. An individual who contributes more than $1,000 to a registered political party will be breaking the law. An individual who makes a $21 cash contribution or accepts a $21 cash contribution will be breaking the law. A monthly political dues system, a tradition in workers' parties, at any level above $83.33 per month will be illegal.

The reform will bar individuals from getting together and raising money amongst themselves for a common political aim on their own terms, if they participate in elections as a registered party. For example, if a political party wants to carry out a special project that requires large sums of money, such as building an educational institute, it could not directly appeal to the people to make large contributions to carry this out. At a time when the role of political parties in Canada is in disrepute and one of the reasons for this is that they are seen as crass election machines, Bill C-2 will further entrench the conception of a political party as an organization that functions only as a machine to solicit and deliver the vote and then be paid for each vote from the federal treasury. The media are currently carrying complaints about the Conservative nomination process where increasing evidence points to problems which emerge when forces that control a party run roughshod over party members and their expectations.

Furthermore, Bill C-2's limits on contributions, like those in Bill C-24, make illegal the very means through which the political parties in the House of Commons established themselves. A new political party would not be able to raise large political contributions such as those that the Conservative (Reform) Party solicited from the oil industry in Alberta, or those that the New Democratic Party solicited from the trade unions. In this regard, it is of interest to note that in the period before the limits on trade union and corporate contributions came into effect, while the Liberals were waxing eloquent about large donations creating at least the perception of undue influence, and about the need for transparency, it accepted a donation of $2,974,341.20 from a numbered corporation. At the same time the New Democratic Party more than doubled the contributions from its top-ten union contributors from the year before. This shows the self-serving character of such electoral reforms which among other things will serve to stifle the formation of political opposition to the established parties in the House of Commons and lead to further fighting within these parties and between these parties. The parties in Parliament have secured for themselves, in the form of dollars for votes, a multi-million dollar source of perpetual state-financing, which in turn is routinely used as collateral for bank loans. And for some strange reason this practice is not considered a corrupt form of corporate funding.

The Difference Between Regulating Elections and Regulating Political Parties

In the course of the Senate Hearings on Bill C-2, a dispute has emerged about the Conservatives not reporting, as contributions to the party, registration fees to the March 2005 Conservative Party Policy Convention. This incident highlighted a significant political development in Canada, one which is manifest in Bill C-2 and in Bill C-24 before it. As more and more regulations are introduced governing what a registered political party can and cannot do, the distinction between the role of the state in conducting elections and the role of the state in controlling political parties is being obliterated. The former is justifiable, necessary and in need of democratic renewal. The latter is unacceptable, anti-democratic and making a mockery of any conception of political freedom.

It is a dangerous road that is being paved because the development of such broad state power over the internal affairs of political parties constitutes a police-state in the making. The dispute over convention registration fees certainly brought to the fore the extent to which the internal affairs of political parties have been brought under state regulation and how even the most routine political affair can be turned into a suspected, potential or real crime.

Elections are a legitimate target of legislation. The state has the duty and responsibility to guarantee that all citizens, regardless of their economic status, can exercise their right to elect and to be elected. It has the duty to guarantee that elections are conducted in conditions that enable citizens to deliberate on the future of their society, to select and elect candidates from amongst their peers, to set the agenda to be discussed, and consequently elect their government. Such laws should be enacted in Canada and the exclusive domain that political parties have over elections and government should be ended.

The Distinction Between Funding Political Parties and Candidates and Funding Elections

Just as the distinction between regulating political parties and regulating elections is being obliterated, so too the distinction between funding the electoral process and funding political parties is being obscured.

In Canada, the existing body of law is said to create "free and fair" elections through a regime of election spending limits and more recently political contribution limits. This regime is out of control and anathema to political freedom because (1) election campaigning has no beginning and no end; (2) the amount of money required to compete in an election, even with "spending limits," is out of reach for anybody who is not independently wealthy or connected to the power brokers in one of the political parties of the establishment; (3) the inherent competition drives the parties of the establishment to constantly try to outdo each other especially by finding loop-holes and ways to circumvent the law; and (4) the only way to control the money spent by political parties during elections becomes a battle cry to control the political parties themselves and to control who contributes to them. While failing to provide "an even playing field" as professed, the party-dominated system of representative democracy has created a conundrum which is endangering the very notion of freedom of political association and related political rights and freedoms. This is seen in the restrictions on "third party" spending which effectively discourages organized participation in the elections.

Public Funds Should Be Used to Fund the Selection and Election of Candidates by the Electors

It is one of the anomalies of the development of Canada's electoral laws that the more the rights of every member of the polity to elect and be elected were said to be recognized, the more the electoral law has strengthened the role of political parties as "primary political organizations" rather than enabling all citizens to exercise political rights. The electoral law has thus become legislation enabling privileged political parties, not all members of the polity, to participate in governance. An extension of the problem is rule by executive decree. Neither the House of Commons nor the Senate can calmly and responsibly deliberate on draft legislation. For their part, MPs have no power to set government agenda and members of parties have less and less power over their own parties.

It is the opinion of the MLPC that the state should finance no one and instead should finance the process of selection of candidates. All those people, whosoever wishes to present himself or herself as a candidate for election, first presents himself or herself for selection and the state must fund the entire process. This means that it would be the responsibility of non-partisan constituency committees, established under the control of an electoral commission, to ensure that the selection process is carried out properly.

These committees would be responsible for making information available about every prospective candidate to everyone in the constituency. A constituency committee would be responsible for organizing debates and meetings in which every candidate for selection is free to participate. Should the workers in a factory or other place of work wish to select someone from their own ranks to represent them in the election, this too must be facilitated. Those who are chosen by their own political parties would also present themselves at this stage in the electoral process for selection. The people in the constituency would then select no more than three people to run as candidates in the election. The members of a political party would be on an equal footing with everyone else who seeks to present himself or herself for election.

The next stage of the election would be held in a similar manner, with public funds being used to provide the electors with all the information required to cast an informed vote. Whether a candidate has money or not, whether he or she agrees or disagrees with the views of a particular political party, the candidate has an equal opportunity to present himself or herself for election. Only if the process of selection is funded through public funds and no public funds are made available to special interest groups, including political parties, can this become a reality.

There would be no need to have legislation that intrudes into the functioning of political parties if public funds were used to fund the election process. For example, one of the justifications given for regulating and controlling the leadership contests of political parties is the fact that the leader of a political party could eventually end up being the prime minister of the country because of the role played by political parties in the system. If citizens were empowered to exercise their right to select, elect and be elected, the government would be formed by members of Parliament who have been entrusted to govern the country according to the will of the majority, with the prime minister and other ministers elected by them from amongst the elected members.

Conclusion

Just over two and a half years ago, the current political financing regime was put into place with per-vote subsidies introduced for the first time along with limits on contributions. The different regime has not improved the perception of Canadians as to the integrity and honesty of the system because it has not changed in any substantive way the relationship between electors and political parties, their role in the polity, and the marginalization of the electors by the system of party government. Is the key found in $4,000, the difference between the limits imposed by the Liberals and the limits now being proposed by the Conservatives? To suggest that changing the contribution limits by $4,000 and eliminating corporate and trade union contributions (when it is already known that the ways to circumvent these prohibitions are many), is to make a mockery of the very concept of reform. Real democratic reform begins with the suggestion of the MLPC for the government to fund the electoral process and not political parties.

As the MLPC pointed out when Bill C-24 was passed, each reform to the Canada Elections Act has merely exacerbated the crisis of the system of party government. This will clearly be the case with the Federal Accountability Act and its changes to the Canada Elections Act. These changes are yet another example of changes which will further the concentration of power in fewer and fewer hands. The outcome will be the opposite of what Canadians want.