The BC Liberals’ gag law is still ravaging this election.

An estimated 53% of me laughed and 47% wanted to scratch my eyes out when I saw a poll about BC’s election advertising law.

Last year, 64% of British Columbians admitted they’d followed discussions about the law only minimally: either “not too closely” or “not closely at all”. Nevertheless, only 22% were “not sure” if it was a good or bad law.

So 42% shouted yay or nay for the new rules, even after admitting they had little clue what they were?? That’s enough opinionated know-nothings to carry a majority government!

Granted then, suggestive advertising could probably sway the votes of such dopes. Little do they know, the Liberals’ “solution” makes things worse.

Our revised Election Act limits the amount any politician or “third party” can spend on “the transmission to the public by any means” of messages directly or indirectly “associated” with a political party or candidate. Third party advertisers must register with Elections BC.

Several unions called that an attack on freedom of speech (see a good summary of concerns here). The Attorney General claimed it protects elections from being unduly influenced by deep pockets. In April, BC Supreme Court Justice Cole weighed these laudable principles. Citing the Liberals’ 2005 platform covering practically every aspect of society, Cole ascertained the definition of election advertising was “overbroad”, because any conceivable topic could be “directly or indirectly associated” with that platform.

Cole argued, though, that “temporal proximity to the election” makes it easier to discern which ads are associated with a party or candidate. He therefore concluded the rules should operate only during the 28-day election campaign rather than for the three months the government wanted.

It was an understandable compromise. Unfortunately, the constraints of the evidence at hand and legal precedents resulted in an extremely limited examination of the real problems.

For example, the case never delved into the different ways ads exert influence. Does TV’s deluge of fancy car ads really have no influence on support for emissions curbs? Does the way sexuality is exploited in advertising have no influence on how people perceive female candidates? The list goes on. Advertising pervasively influences society, from our consciousness about underarm odour to our images of professional behaviour; deliberately or not, subliminally and explicitly, it influences elections enormously. But the advertisers subject to sanctions under this law are those who give their messages straightforwardly and run their ads only at election time, i.e. those too poor to hire sneakier PR firms or run ads year-round.

Even more hypocritically, the law exempts “bona fide” news media. But with media conglomeration and increasingly outspoken, politically partisan owners, news outlets have become far more unfairly influential than any third parties could ever be. By what logic, then, are they and their advertisers exempt, while my YouTube rants wouldn’t escape regulation?

A case before the U.S. Supreme Court highlights a provocative example: A right-wing group raised funds to run a lengthy diatribe attacking a Democrat, and called it a “news documentary”, thereby circumventing U.S. election ad laws. So, what’s your verdict? Keep in mind, most documentaries are largely funded by someone other than TV networks.

My point is, the democratic principles involved are complicated and conflicting. Meanwhile, when they design gag laws, do our leaders actually care about protecting any of these principles? No. It’s all about power.

After all, Campbell also simply cancelled months of legislature sessions. He’s consistently refused to answer to the public, instead throwing rotating ministers out to face most controversies. The NDP, critical of Campbell’s gag law, previously floated a similar one, which Campbell and the opposition Liberals assailed. When a federal gag was enacted, it was attacked in court by National Citizens’ Coalition leader Stephen Harper. Prime Minister Harper has shown no interest in changing that law.

The real principle at work? When you’re in power, gag laws seem more appealing.

This makes tactical sense. Studies show voters favour well-known incumbents over largely unknown candidates. Therefore, laws gagging everyone tilt elections in favour of incumbent parties. Conversely, an opposition’s popularity depends on rallying grassroots public dissatisfaction-a task hampered by laws limiting how much people can work together or spend on communicating. His own former NCC assistant has charged that Harper likes the gag law now for exactly this reason: it helps “silence pesky left-wing groups”.

Our BC law intensifies this effect. The federal law allows spending up to $500 without registering; ours has no minimum. Elections BC confirms that if you give three friends copies of a joke mocking the Liberals environmental record without having registered, you could be fined or imprisoned. Also, you and the Greens could then both come under legal scrutiny for not being “independent”. This spring, I, Rafe Mair and many BC activists received warnings from Elections BC to this effect.

It’s a terrible sledgehammer slamming down non-profit activism and citizen involvement in the election, while strengthening the incumbent, embedded forces that already dominate our media.

Will those parts of the law stand either, once challenged? Herein lies the sinister cleverness of the Liberal strategy. By enacting the law this spring, they muzzled their most influential critics during the crucial, pre-election campaign Throne speech, budget, and legislature sittings, before the courts got around to shrinking the law’s time frame. Now, even if the Liberals lose and must rally grassroots and third party support next election themselves, their draconian law won’t come back to bite them. A court will likely have struck the rest down by then.

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Originally published in Focus, May 2009.