Thursday, September 17, 2015

Conservatives Charge "Tour Media" $12,500 per Week - Is That Legal?

At the outset, let me say that I'm not an expert on electoral law, and so the question posed in the title of this entry is a real question, from my perspective.  I should also highlight that, while there has been media coverage of the CPC practices in this regard, I don't know how long this is going on, and for all I know the other parties might engage in similar practices.

I'd welcome input from more authoritative sources.

Last month, a couple of independent media sources wrote pieces venting about how they're being shut out from the Conservative campaign by the high cost of being 'tour media'.

My attention was caught by this piece, which explains the CPC's cost breakdown in detail:  $3000 per day, or $12,500 for a full week, or $78,000 for the whole campaign.  The week prior, the Tyee wrote a similar article, which oversimplified the billing structure, but the essence of the story was the media's changing role in election coverage.

Vice was upset because, even if they attend Harper's campaign events, they don't get to ask questions:  Harper only takes five questions per appearance: four from 'tour media' and one from 'local media'.  Even where there wasn't a fifth question lined up, Vice still got snubbed.

And one might reasonably be concerned about the approach:  In order to have the right to ask questions of a sitting Prime Minister, a media source needs to shell out big bucks to the party itself.  That seems troubling, from a democratic perspective.

But my concern is somewhat narrower:  I question whether or not this sizeable fee constitutes an impermissible campaign contribution under the Canada Elections Act.

Elections Canada Weighs In

In general, in Canada, corporations are not permitted to make political contributions.  But the Act overall is quite complex, and it was hard for me, as a non-expert in the area of law, to come to any conclusive questions.

So I asked Elections Canada.

And, after a surprising delay, they responded:
...if media are charged for participation on a leader’s tour or other candidate event, the amount charged must not exceed the commercial value of any tangible benefits received by the media person (such as meals, flights, lodging).  Any excess amount would constitute a contribution by the media corporation to the party and thus be impermissible under the Canada Elections Act.
It doesn't really answer the question conclusively, but I never really expected more than this - an explanation of the framework itself.

It still has to be taken with a grain of salt, though, because I'm not entirely sure where the interpretation arises:  For instance, nowhere in the Canada Elections Act does the word "tangible" occur at all.

Of course, there's s.377, which addresses 'ticketed fundraising' events - you know, those $500/plate fundraising dinners for a $50 dinner?  In such events, the difference between the ticket cost and the "fair market value of what the ticket entitles the bearer to obtain" is the contribution.  But that doesn't speak to this, because - inherently - selling tickets to corporate media cannot be a fundraising activity.

So, having looked through the various treatments of 'contributions', I can't find anything that would permit a large cheque from a corporation to a campaign, even if it is the fair market value for goods received.  Perhaps there's a 'flow-through' aspect to such money, that it's not regarded as going to the campaign in the first place (and such that the expenditure also would count against spending limits).  I can only speculate, but that's my best guess here.

Regardless, EC's interpretation is quite sensible, certainly in keeping with the spirit of the Act.  You can require a media source to cover its own share of the costs of touring with you, but you can't go beyond that.

How do we determine "commercial value"?

Happily, the Act does contain a useful definition of "commercial value":
“commercial value”, in relation to property or a service, means the lowest amount charged at the time that it was provided for the same kind and quantity of property or service or for the same usage of property or money, by
(a) the person who provided it, if the person is in the business of providing that property or service; or
(b) another person who provides that property or service on a commercial basis in the area where it was provided, if the person who provided the property or service is not in that business.
In other words, you can't get around contribution rules by setting arbitrarily high values on services provided directly by the campaign.  It's about fair market value.

So What's the Answer:  Are the Tories Breaking the Law?

I'm not in a position to answer this conclusively, even assuming that Elections Canada's answer is correct.  I have no idea what 'tangible benefits' the media personnel receive while touring with the CPC.

But it is really hard for me to see how they could possibly add up to $3000 per day.  Even if we're talking about really nice meals, really nice hotel rooms, and a really nice seat on a really nice bus...that's a tough sell.

And there are other tell-tale signs that something fishy is going on here:  If the 'commercial value' of tangible benefits warrants a $3000 per day fee, then how is it that it's significantly less if you buy in bulk?  While there are sometimes rational explanations for bulk discounts, this doesn't seem to be one of those scenarios.

Likewise, if the money is entirely about cost recovery, why would the party actively incentivize media sources to become tour media, to the detriment of non-tour media?

I would invite commentary from those more familiar than I with campaign practices and campaign laws:  Is this sort of thing normal, and only making headlines now because of the wide dislike for Mr. Harper's media practices?  Or is this generally unheard of?  Or somewhere in between?  Is this something for which there's a clear (or even arguable) legal basis?  Is it somehow conceivable that media personnel might actually receive $12,500 per week in tangible benefits while touring with the Tories?


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation.  If you need legal assistance, please contact him for information on available services and billing.

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