This text was composed in response to written questions sent to me by Howard Breen of Smart Change, an NGO whose project of informing Canadian voters about issues of current concern I had offered to support. This text has not previously been published.
1. Is it fair to say the Robocall Scandal represents the worst transgression of our electoral institution? (One could argue that there have been worse threats to our democracy i.e. the War Measures Act in October 1970.)
There was undoubtedly a lot of piecemeal corruption (and indeed, outright violence) in Canadian elections during the 19th century. But I believe that Canadian elections were largely free from fraud during the latter half of the twentieth century. Under Stephen Harper's leadership, the Conservative Party has descended to what I believe are unprecedented levels of impropriety and systematic law-breaking.
In 2006, Stephen Harper came to power through the RCMP's mid-campaign intervention with subsequently dismissed accusations of corruption against Finance Minister Ralph Goodale, and through the “in-and-out” campaign finance scandal, which gave the Conservatives some $1.3 million of illegal advertising money. The 2011 electoral fraud that we refer to as the Robocall Scandal was the largest-scale and most systematic instance of electoral fraud in Canadian history—and since it very probably gave the Conservatives their parliamentary majority, it has had a substantial institutional impact: they are now able to implement measures that were beyond their power to push through Parliament when they formed a minority government.
The 1970 use of the War Measures Act was not damaging to democracy in the same way: it was indeed invoked and then given approval by a panicked Parliament on the basis of false and misleading information, but it did receive the support of an overwhelming majority of MPs, and apart from flipping a Montréal municipal election (I believe Jean Drapeau's chief opponents were all in jail) and indirectly inspiring the Québec electorate to vote in René Lévèque's PQ government in 1976, it didn't alter Canadian structures of governance.
2. Are there any obvious Robocall Scandal ties between electoral corruption and inequality and/or poverty (other than the obvious current Fair Elections Act maneuvering to eliminate ‘vouching’ etc.)?
Since the 1980s in the U.S., and during the past decade in Canada, electoral fraud has to an overwhelming degree been practised by right-wing parties (the Republicans in the U.S., and the Conservatives here). These parties have quite consistently pursued policies that are more damaging to the poor and more productive of inequality and increased poverty than the policies advocated by their opponents.
To the extent that electoral fraud has empowered the Conservatives, bringing them into office in 2006 and giving them majority-government status in 2011, it has very obviously enabled them to enact policies that have harmed poor and First Nations people.
3. Where does the Robocall Scandal rank in terms of any international corruption indexes monitoring election fraud (2008-2014)?
I'm not inclined to put much reliance on such indexes, though I don't claim to have studied them closely. I have noted, however, that Transparency.org rates Colombia as being very much less corrupt than Venezuela—a conclusion that is blatantly incorrect and that must result from political bias. (Trade unionists, journalists, and opposition politicians are routinely murdered in Colombia, while Venezuelan elections have repeatedly been pronounced clean by organizations like the Carter Foundation.) Transparency.org also gives a comparatively high score to the United States, a judgment that I know to be false. (I have studied the last four U.S. presidential elections quite closely, and I published several articles on the subject of Republican election fraud in the 2004 election.) A comparison with U.S. practices can tell us something about where we now stand.
U.S. elections are more corrupt than even our 2011 election by a very substantial margin. The electoral system is a two-party duopoly which places serious legal and institutional barriers in front of third-party candidates for office. Thanks to the U.S. Supreme Court's “Citizens United” decision, candidates who have the support of major corporate interests have the overwhelming advantage of unlimited campaign funding. And thanks to the denial of voting rights to prisoners throughout the U.S. and to former felons in many states, as well as to Republican obstruction of voter registration, deliberately dishonest and racially biased purging of voters' lists by Republican state governments, strict identity-document requirements, and polling station challenges (often based on illegal “caging” practices), a substantial proportion of the U.S. electorate which would vote for Democratic Party candidates is regularly disenfranchised. Telephone-fraud vote-suppression tactics of the kind used by the Harper Conservatives were developed by Republican operatives, and continue to be used by them.
In addition to this widespread disenfranchisement, corrupt vote-counting practices—including the non-counting of “provisional ballots,” the non-counting of “over-” or “under-votes” produced by punch-card voting machines, the use of touch-screen voting machines to flip or discard votes, and massive fraud committed through manipulation of electronic vote-tabulation machines—have given the Republican Party a further advantage of 5 percent or more in each of the last three presidential elections. Corrupt vote-counting turned a 3-percent Kerry victory over Bush in 2004 into a 3-percent Bush victory over Kerry; and turned Obama's complete rout of McCain in 2008 into a decisive but not completely overwhelming victory.
By these (appalling) standards, our 2011 election was only moderately dirty. On the basis of the far-from-adequate available evidence, I would suggest that the Conservatives' telephone fraud (which aimed at disaffiliating and suppressing opposition-party votes) probably increased the Conservatives' vote share by one-half to three-quarters of one percent nation-wide. This may not seem like much—but of course the fraudulent calls were very unequally distributed: they appear to have been concentrated in many cases on swing ridings, and they arguably produced narrow Conservative victories in enough such ridings to make the difference between minority-government status and a parliamentary majority. And as in the U.S., it is a very serious matter when a major political party engages in systematic and nation-wide electoral fraud.
The intention of Bill C-23, the “Fair Elections Act,” is very obviously to move our system towards the kind of corruption that is endemic in the U.S.—by weakening current limitations on campaign spending, by disproportionately disenfranchising poor and First Nations voters, by putting the local administration of elections into the hands of people appointed by the sitting MP, by disempowering still further the Chief Electoral Officer, and by making decisions over the prosecution of electoral fraud subject to the (partisan) authority of the Attorney General.
4. Did the Council of Canadians court case reveal any quotable measurement of the impact and scope of Robocall corruption victimization which the judge in fact validated?
No, it didn't. Federal Court Judge Richard G. Mosley chided the Conservative MPs for waging “trench warfare” designed to prevent the case from being judged on its merits, and found both that widespread electoral fraud had occurred and that the most likely source of the misleading calls placed across the country was the Conservative Party's CIMS database (accessed by persons unknown).
However, Mosley had no adequate notion of the scale of the fraud (he believed that the “vote suppression effort was geographically widespread but, apart from Guelph, thinly scattered”), and he made what I believe are several significant errors in interpreting the evidence.
(1) Judge Mosley dismissed the testimony of the whistleblowing call-centre employee Annette Desgagné, preferring to accept that of a Responsive Marketing Group executive, even though Mosley's own summary reveals a major contradiction in the RMG executive's evidence.
(2) He made an important category error in deciding that the evidence provided by the polling company Ekos Research differed in kind from other sorts of expert evidence and therefore could not be given determinative weight in his decision.
(3) He decided not to use the calculating method that had been applied by the Supreme Court in deciding the Opitz case in favour of the Conservative who had defeated a Liberal incumbent by 18 votes. My analysis shows that had Mosley applied the Supreme Court's calculus to the six seats in question, he would have had to conclude that without fraud two of them would have been won by the Liberal Party, two by the NDP, and two by the Conservatives.
5. With respect to the culture of robocall corruption that has now emerged in the 2008/2011 elections, can any activities be traced to public/private financing, MPs or their campaign teams (worthy of indictment after the Sona trial), or to third party middlemen acting as robocall operatives (possibly with some taint of bribes, patronage or gift-giving), or to the PMO?
I suspect that Conservative operatives in a number of ridings may have had a nodal function in the organization both of the mid-campaign harassment calls (which early reports indicated were directed against Liberal supporters in 22 ridings, most of them in Ontario)1 and also of the end-of-campaign vote-suppression calls (which occurred nation-wide from April 29 to May 2, election day). Julian Fantino should certainly be investigated: in June 2011 three members of his own riding association denounced the fact that his riding organization had an illegal slush fund containing $300,000 to $400,000 dollars.
It seems to me obvious that the fraud must have been organized out of the Conservative Party's headquarters, and I can think of a number of people who should be persons of interest in any serious investigation. It is a sad fact that much of the crucial evidence that could have led to the conviction of such people—I'm thinking of telephone-company records in particular—has almost certainly been irretrievably lost.
But for two reasons—Stephen Harper's known habits as a micro-manager, and the principle of “The Buck Stops Here”—I believe that the person who should most distinctly be held responsible is the Prime Minister.
6. Is Harper using Bill C-23, the new “Fair Elections Act,” to further subvert our democracy (through vote suppression), or to change channels and cover up the Robocall scandal? Or is it a stretch (& something that shouldn’t be done formally) to directly tie the Robocall Scandal to the vote suppression embedded in Bill C-23?
Bill C-23 is transparently designed to do two things: to further corrupt our electoral process to the advantage of the Conservative Party, and to ensure that any future investigation of electoral fraud cannot take place. A government that was not deeply and unrepentantly stained by electoral fraud could never have formulated such an act. I would suggest re-naming it the Tory Electoral Fraud Enablement Act.
7. What is your assessment of the Canadian mainstream media in covering the Robocall scandal? Who were the worst offenders at spouting yet more CPC propaganda, or minimizing the wrongdoing? Who provided the best coverage?
On the whole, the mainstream coverage of the scandal has been shockingly poor. The Globe and Mail's coverage has been particularly feeble and misleading (especially given its pretensions to be English Canada's national newspaper); the Toronto Star, our largest-circulation daily, has not been a whole lot better. The CBC has given the issue extensive coverage, including some significant investigative reporting. Surprisingly, perhaps, the best coverage has come from the Postmedia group (including the National Post and the Ottawa Citizen). A very large proportion of the best reporting on the scandal has come from Glen McGregor and Stephen Maher of the Ottawa Citizen. Although much of the National Post's political coverage in other areas is biased, and much of the paper's political commentary is fatuous, I have (with some degree of unwillingness) become a regular reader.
8. Ignoring Bill C-23, what should have been the new Elections Canada policy choices, electoral rules, and investigation directions which should have addressed/emerged from the scandal?
In May 2013 Marc Mayrand, Canada's Chief Electoral Officer, published a 44-page report, Preventing Deceptive Communications with Electors: Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election (Ottawa: Elections Canada, 26 March 2013), www.elections.ca/res/rep/off/comm/comm_e.pdf, which offered a detailed outline and justification of the necessary changes to the Canada Elections Act. The Conservatives refused any consultation with Mayrand, and ignored his recommendations. They likewise ignored a private member's bill tabled in October 2012 by Craig Scott, the NDP's critic for parliamentary and democratic reform.
The basic changes that are needed are quite simple. Elections Canada must have full investigative powers and adequate investigative resources. There must be substantially increased penalties for electoral fraud. Elections Canada and the Commissioner for Canada Elections must continue to report to Parliament as a whole, and must remain independent of any control or influence by government ministers. Strict constraints must be placed on the databases built up by the political parties. Measures need to be taken to increase voter turnout, not to suppress the vote (through, for example, photo-ID requirements or a rejection of “vouching”).
9. Are any constitutional structural constraints on electoral corruption now eliminated or minimized by Harper’s latest efforts?
Yes. Bill C-23 is designed to ensure that there can be no future repetition of what happened in late February 2012, when news reports by Glen McGregor and Stephen Maher based on court documents filed by Elections Canada investigators revived public and parliamentary awareness of the election fraud scandal.
Not merely will Bill C-23 make it unlikely that the public could learn about any ongoing investigation; by putting the Commissioner of Canada Elections under the power of the Attorney General, it will ensure that no investigations can even be launched without the approval of the government in power.
10. Given Elections Canada's inability to educate voters under Bill-23, what NGO, public, or governmental actions or changes are needed by 2015 to ensure more ‘informed voters versus uninformed voters’ re: election fraud?
People need to know, first, that the governing party of this country engaged in very large-scale and nation-wide electoral fraud during the last federal election—and that the Conservatives very probably owe their majority in parliament to this fraud. Whatever their political beliefs, most Canadians value decency and honesty; when they realize that there has been systematic cheating, they may well be motivated to learn more about a range of issues, and to withdraw support from the party that cheated.
People who have had no previous experience of telephone-fraud vote-suppression (in the form, for example, of calls impersonating Elections Canada which gave false information about supposed changes in polling-station locations) are vulnerable to being deceived by it. We can draw some comfort from evidence that suggests that people who know about this kind of fraud, or who have actually experienced it, are much less likely to be fooled. Telephone fraud brings diminishing returns.
It's not hard to predict that people who have engaged in electoral fraud in the past will attempt new forms of it in the future. Citizens need to be informed that high-tech voting systems—touch-screen voting machines, electronic ballot counters, electronic vote-tabulators, and on-line voting systems—are highly vulnerable to systematic and large-scale electoral fraud. (In a U.S.-style system, where federal elections are conducted in every county and state by partisan officials rather than by a neutral and arms-length Electoral Commission like Elections Canada, fraud of this kind is inevitable when the technology provides an opening for it.) Citizens need to know that the system that is least vulnerable to fraud is one in which paper ballots are counted and tabulated by hand by well-trained officials, and remain available for possible recounts when the results are close or are disputed. (As computer security experts know well, meaningful recounts are impossible with electronic voting machines or with on-line voting.)
Citizens need to be aware as well that the vote-suppression measures proposed in Bill C-23 are aimed particularly at reducing the turnout of opposition-party supporters. The Conservatives will gain a larger (if less focused) advantage from these measures than they did from their telephone fraud in 2011.
11. What role, if any, do special interests and elite cartels (e.g. Big Oil, Gas and Coal etc.) play in tempting or incentivizing Harper people to embark on illegal election practices?
I have no hard facts to work with on this subject, so can only speculate. Opinion polls regularly show that Canadians are deeply concerned about what they understand of environmental issues—and, in particular, about the accumulating evidence that indicates we are in the midst of processes of probably cataclysmic climate change.
But the Harper Conservatives are committed to unconstrained development of hydrocarbon resources—tar sands, shale gas, and pipeline systems. Political parties committed to unpopular policies are as a matter of course tempted to engage in corrupt practices as a means of frustrating the will of the majority.
12. Many third world countries with petroleum assets are afflicted by petro-corruption. Can we expect much more of the same here given the current Canadian fossil fuel boom?
Yes. Climate scientists indicated several years ago (using figures that accelerating climate change processes have now made out-of-date) that the largest global temperature increase that could be permitted without risking global catastrophe is one or two degrees centigrade above pre-industrial levels. It has been estimated that burning about one-fifth of existing proven reserves of oil, gas, and coal will raise global temperatures up to that two-degree-increase level. There is very good reason to think that burning more than this amount of hydrocarbons will take us past tipping-points (e.g. with a loss of most of the polar ice-caps and massive releases of methane clathrate deposits in the arctic tundra and arctic ocean) that will produce runaway global warming, runaway mass extinctions, and the end of human civilization. This means of course that increased tar sands exploitation amounts, together with shale-gas exploration , amount to a form of eco-suicide.
Oil and gas company executives and the politicians who serve them—and who are engaged in facilitating expanded tar-sands and shale gas production, along with the environmental devastation they produce—are not interested in evidence of this kind. They can be expected to do what they feel necessary in order to preserve and increase corporate profits.
13. Do you think Big Blue Conservative ‘machine politics’ played a significant role in this illegal choice or a few highly-placed individuals?
I assume the question here is about the choice to carry out systematic electoral fraud in our 2011 election. “Highly-placed individuals” make the decisions in machine politics. In party organizations, as in military hierarchies, information about centrally-planned operations is made available to party operatives on a “need-to-know” basis.
14. How significant a role is Harper’s personal overly-paternalistic view of our democracy playing in the ongoing corruption?
Harper's contempt for democracy and for parliamentary procedures is legendary, and he is a micro-manager. I regard him as directly responsible for the 2011 electoral fraud scandal.
15. How much will any provisions of Bill C-23 (or other new CRTC regulation?) practically deter further robocall corruption?
Bill C-23 is designed to enable and facilitate electoral fraud. (One can anticipate that the Conservatives will take action in the near future to corrupt the regulation-enforcement practices of the CRTC. They have been quite heavily fined by the CRTC for robocall violations of CRTC regulations carried out since the 2011 election. The Harper Conservatives do not forget or forgive insults of this kind.)
16. In your view, are there any swing ridings with incumbent Conservatives who should be closely monitored or ranked as the most likely (of any) to consider fraudulent practices in 2015?
All ridings won by any party with a lead of less than about 3,000 votes should be closely monitored.
17. Will ‘third party [illegal] robocalling’ likely become a greater concern in 2015 due to competitive factional conflict and political malfeasance?
The Harper Conservatives have in the past (e.g. in the Saanich-Gulf Islands riding in 2008) gotten away with flagrant violations of the spending limits governing 'third-party' advertising in federal elections. They may well try to do so again.
High levels of voter turnout tend strongly to favour parties of the left and centre. Vote suppression will no doubt continue to be of interest to Conservative Party strategists. Negative, dirty campaigns are known to produce lower overall turnout, and political tacticians always hope that if enough of the mud they sling through attack ads sticks, the reduced-turnout effect will be greater among supporters of opposition parties. Attack ads (whether paid for by political parties or by supposed 'third-party' agencies) are legal, even when they are seriously misleading in content—but one can assume that a party which has developed a culture of cheating will also make use of whatever illegal means its decision-makers think they can get away with.
I can't predict whether other political parties will also decide to make use of telephone fraud. Except in one minor and isolated instance involving a single robocalled message in the riding of Guelph during the 2011 election, the Liberals have not used illegal robocalls. The NDP stupidly used improper robocalls against one of their Québec MPs who defected to the Liberals after the 2011 election (they were duly fined for this transgression by the CRTC). I am not aware of any evidence suggesting improper use of robocalls by the Green Party or the Bloc Québécois.
18. Crony capitalism is alive and well under Harper. What undemocratic transgressions may come from Bill C-23 contribution cap removals for fundraising etc.?
I think I've answered this in responding to questions 9, 10, and 15 above.
19. Does Bill C-23 and the new separation of powers for Elections Canada have any as yet undiscussed implications for political electoral accountability in 2015?
The Advisory Committee of Political Parties provided for in section 21.1 is clearly designed to hamstring the Chief Electoral Officer (any “guidelines” or “interpretation notes” s/he issues are automatically delayed by that committee for at least a month [section 16.2]).
I have not yet had time to do an adequate comparative study of the previous text of the Canada Elections Act and the revisions proposed in Bill C-23. However, I believe that the changes have the effect of increasing the input of the incumbent party into the process of selecting the people who administer the election in each riding.
20. Does ‘robocalling’ have any use in CPC ‘political advertising’ (and GOTV campaigning) which they may employ in 2015 that we should be monitoring?
It will be heavily used in both functions, as it was in 2011. It is important for opposition political parties to monitor this kind of stuff, and to be in a position to counter the falsehoods and smears that will no doubt figure in Conservative Party advertising robocalls.
Given that other kinds of fraud (beyond vote-suppression phone calls) are likely to figure in future elections, it may be necessary to start thinking about monitoring existing media-conducted exit polls—and organizing citizen-conducted exit polls as well.
In the 2004 US presidential election, I monitored exit-poll results of three kinds: the national exit poll, and the state exit polls in the key swing states of Florida and Ohio—and found conclusive evidence that the results were fraudulently altered during the night following the election. Parallel monitoring of all of the state exit polls was done by only two researchers in all of the U.S., Jonathan Simon and Steven Freeman. (That evidence turned out to be quite important in assessing the scale of the fraud in the official vote-tally—though one would never know that from the reporting of the mainstream US media.)
21. Does Bill C-23 have any new bearing on expenditure auditing for auto-dialing campaigns?
I need to do further study here. I believe that Bill C-23 will facilitate certain kinds of unregulated campaign expenses.
22. If there is any robocalling in 2015, any breaches will regrettably have the new Commissioner report to government, not parliament. What changes might we demand in the hopes of amending the bill before passage?
The Commissioner of Canada Elections, and the power to recommend prosecutions of violations of the Canada Elections Act, must remain within Elections Canada. Transferring this power into the hands of a member of the government (the Attorney General/Minister of Justice) is completely unacceptable.
1 Commissioner of Canada Elections Yves Côté's Summary Investigation Report on Robocalls, published on April 24, 2014, revealed that 51 percent of the 2,448 documented complaints about which Elections Canada preserved records were complaints about harassment calls. Given that the recorded complaints came from 261 ridings across Canada, it is clear that harassment calls, even if they were concentrated in certain ridings, must have occurred in a large majority of the ridings from which complaints were recorded.