Third Party Advertising and 'Affiliation' with Political Parties

I'm going to move this discussion into Blog format, because I'm running into issues dealing with it via Twitter.

One of the UCP's favourite lines of attack is to try to paint the Alberta NDP and the labour movement - all the unions and labour organizations in the Province - as one singular monolith.

Their hands-down favourite target is CUPE Alberta, because Rachel Notley's husband, Lou Arab, is a member of their communications team. So they like to pretend that CUPE is just an extension of the NDP, that all their communications are just Notley's husband advocating for the party - instead of, you know, operating under the oversight and instruction of CUPE's internal management, in service of their membership interests.

Now, the UCP has written to Elections Alberta complaining about political involvement of CUPE, the Alberta Federation of Labour (AFL), and the Alberta Teachers Association (ATA).

The first UCP letter is actually a useful read, because it helps highlight that this WHOLE tempest is driven by legislative amendments made by the UCP: In other words, even on a charitable read, their pitch is along the lines of "We made it illegal for these organizations to engage in election advertising, and therefore they need to be stopped."

Basically, they're making a bunch of assertions:

1. That CUPE, AFL, and ATA are 'affiliated' with the NDP.
2. That, because of this affiliation, these organizations are prohibited from election advertising.
3. That the pre-election disclosures of AFL and CUPE, showing no contributions, means that they're breaking the law by spending money election advertising.
4. That ATA is engaged in improper election advertising despite not being a registered third party advertiser.
5. That Elections Alberta should commence an investigation, announce an investigation, and send a cease-and-desist letter to these organizations.

The first and fourth points are probably wrong. The second, third, and fifth are definitely wrong.

But let's talk for a moment about the framework more generally. Then I'll get into rebutting these various points.

The EFCDA and Third Party Advertisers

This is a SUPER complex framework, and I'm going to try to keep it simple. The policy issues surrounding election advertising restrictions are challenging: How do you keep a level playing field with non-absurd election spending, without unduly limiting the ability of private parties to engage in speech activities in election campaigns?

Many jurisdictions have moved toward regulation of Third Party Advertising, and it's an evolving regulatory area.

So within the Elections Finances and Contributions Disclosure Act, third parties are required to register to engage in political advertising. There are different KINDS of political advertising - 'election advertising', during an election advertising period; 'political advertising', outside an election advertising period. And others. These require different registrations.

Third Party Advertisers, or TPAs, have to maintain specific accounts for their TPA activities, and have to report on the status of those accounts, fundraising, spending, etc.

The UCP modified the EFCDA in a couple of ways, effective March 31, 2022. Firstly, they restricted WHO can make contributions to registered third parties, basically limiting it to individuals. So unions and corporations are no longer able to directly fund TPAs. When the UCP's letter says that "Unions are not permitted to spend their own money on advertising", it's pretty on-the-nose in terms of the change they made (and hints at 'why'), but it's basically correct.

Secondly, they made organizations 'affiliated' with parties, as determined by the Chief Electoral Officer, ineligible for registration as a TPA - for political advertising (but NOT for election advertising). The statute directs the CEO to use a multi-factor analysis to assess affiliation; there's no bright line rule. A non-exhaustive list of factors includes (a) whether or not a person holds a CFO or signing officer role in both organizations [the UCP letter materially mischaracterizes this aspect of the test]; interactions that may indicate control of the TPA by the political party; or - an oddly specific one - "the extent to which the third party participates in the decision-making process of the registered party pursuant to the constitution or founding documents of the registered party."

Are AFL, CUPE, and/or the ATA 'affiliated' with the NDP?

To the best of my knowledge, Elections Alberta has never made a determination of affiliation. So the test set out in the statute is vague and discretionary, and there's no history of case law guiding a determination.

So ANYONE telling you, with confidence, what IS or ISN'T an affiliation within the meaning of the statute, is overplaying their hand.

ATA is a creature of statute - established by the Teaching Professions Act, and it would be super awkward to conclude that they're an 'affiliate' of the NDP, even were there other connections to point to (which seem quite thin). But since they're not actually a registered TPA at all, that's a moot question.

And the other thing I'll say is that the connections relied upon with regard to CUPE are comically sparse. They list three people they claim occupy roles in both CUPE and the NDP, but one of them is actually...not even asserted to have a role in CUPE (probably a proofreading error), and the other two? Lou Arab who is in CUPE's communications staff and maybe(?) a party official; and a Committee Chair in one of the Locals under CUPE Alberta's umbrella is an NDP constituency association president.

So in an organization as large as CUPE Alberta, two people under their umbrella get involved with a political party, and the UCP's position is that this disqualifies the whole organization from political speech.

This is a good time to bring up the Charter of Rights and Freedoms. Restrictions on political advertising are almost certainly infringements of Charter rights, but because it's generally a legitimate area of regulatory interest, some infringements can be justified as reasonable limits under s.1.

I'm doubtful that any adjudicator would interpret CUPE Alberta as an affiliate of the NDP within the meaning of the EFCDA. But if that WAS the interpretation, there's NO WAY it passes s.1 scrutiny.

There are other constitutional questions here, more broadly. Was the purpose of the legislation partisan in the first place? If that's the case, that's almost certainly fatal to a s.1 defence: An even-handed structure to regulate TPAs in good faith is one thing, but measures that deliberately target organizations that are ideologically closer to the opposition? Yeah, no.

So this is a complex question, with no clearly-correct answer one way or the other, that certainly engages constitutional considerations.

Prohibition on Election and Political Advertising

In order to engage in third party advertising, you have to be a registered TPA. Affiliated orgs aren't supposed be be eligible to register as TPAs. SO, the UCP's logic goes, it must be illegal for affiliated orgs to engage in third party advertising, no?

No. There are a few problems with this.

It's actually a really silly position. With something as vague and discretionary as 'affiliation', you think it's a quasi-criminal offence for an organization to apply for registration, get granted a registration, and then engage in activities authorized by that registration, if maybe it turns out they're actually affiliated?

Anyways, that's not how the EFCDA is set up.

The ineligibility for registration is in the 'application for registration' part of the Act. In theory, at least, Elections Alberta should be screening for affiliation at the application stage. If they refuse registration, then the third party can't engage in advertising.

There's ALSO a vague mechanism that allows a registration to be cancelled if the Chief Electoral Officer comes to the conclusion that the TPA is affiliated with a party. This cancellation is effective three days after the notice is mailed.

That doesn't mean that the organizations have done anything wrong. They operated under a valid registration. They were allowed to. The Act disqualifies them once the CEO has determined them to be affiliated, but - and this is important - it's the determination and not the affiliation that actually triggers the disqualification.

That all applies to 'political' advertising, outside the election period.

But there's a more fundamental problem with the UCP's position here. This limitation only applies the registers under subsections 2(b), (c), or (d).

Election advertising is under subsection 2(a). It contains no comparable 'affiliation' bar.

So, IN THEORY, the best the UCP could hope for would be that Elections Alberta might conclude that these organizations are affiliated, and cancel their registration - as a political TPA.

There's a further issue here, in that the Act doesn't create a clear mechanism for Elections Alberta to review affiliation. No broad investigative/audit powers, etc. So if Elections Alberta did want to review the status of, say, Take Back Alberta, they would find themselves without the necessary tools to compel TBA to provide the information necessary to assess affiliation. It's conceivable that a decision could be made on the basis of publicly available information, but it's a problematic statutory construction.

But the simplest bottom line on this point is this: Whatever arguments you might make about 'affiliation', none of them undermine the validity of the existing registrations. You can't seriously accuse a registered TPA of breaking the law by acting within the scope of that registration.

Where's the Money Coming From?

The UCP wrote: "Each of these NDP-affiliated union organizations have undertaken significant election advertising campaigns but have recorded zero advertising contributions. This is a clear breach of the EFCDA."

I'm going to answer this question with reference to AFL, because Gil McGowan has actually talked publicly about this:

The money's coming from...what was already in their Election TPA account.

They're not reporting contributions during the election period, or the pre-election period, because they weren't receiving contributions. The legislative changes did hamstring their ability to add money to the Election TPA account. But the account pre-dated these legislative changes.

Here's their financial statements from 2022, reflecting $320,000 in contributions. There's a contributor list, too, for large contributions. Presumably, these funds were received in the first quarter, prior to the effective date of the amendment.

So...no, the zero-contribution pre-election returns don't suggest that there's any impropriety here.

What About the ATA?

This is trickier. The ATA is taking the position that they're JUST promoting education in a non-partisan way.

Under other circumstances, I might side with the UCP argument on this one. But the ATA's unique circumstances, and the convoluted web of anti-labour legislation the UCP have enacted, create an odd firestorm.

As mentioned earlier, the ATA is a creature of statute. They have a statutory mandate to engage in public awareness/advocacy to support education. If that's what they're doing ("Stand for Education!"), then it's tough to make a pitch that the EFCDA can prohibit what the TPA requires of them.

On top of that, there's also the Public Education Collective Bargaining Act, which, in another likely-unconstitutional legislative act of genius, creates a firm line - though one that might be hard to exactly locate - between core representational activities of the ATA versus 'political' activities. This makes it impossible to say that their core activities under the TPA might ALSO be political and attract regulation by the EFCDA.

As a result, I'm inclined to think that anything within the TPA mandate, if carried out in a non-partisan manner, falls outside the EFCDA regime.

Also, if the UCP is really taking the position that "Stand for Education" should be clearly understood as telling people to vote NDP...? They're kind of telling on themselves.

Elections Alberta's Recourse

If there WERE an offence here, then it would be appropriate for Elections Alberta to commence an investigation.

But it would NOT be appropriate for Elections Alberta to do either of the things the UCP is actually asking of them - announce that an investigation is ongoing, or send a cease-and-desist. These simply aren't available to Elections Alberta. Section 5.2 of the EFCDA creates significant restrictions on disclosures of information relating to complaints and investigations.

Nor would a cease-and-desist be appropriate. If an offence were found, notice of an adverse finding would be appropriate...but prior to the completion of the investigation? Nothing like that.

There ARE processes available to Elections Alberta where they're satisfied that there appears to be an offence, urgently requiring action during an election period. For example, an injunction application to court is available.

The UCP didn't ask for that. Because they're not really interested in leveraging legal remedies - and they probably recognize that they're overstating their case dramatically anyways - but rather because they want, for political purposes, to publicly allege malfeasance.

Conclusion

The fact that the UCP drafted this letter on the first full day of the election period is telling, and supports an inference that the legislative amendments were, in fact, intended to muzzle specific organizations with ideologies adverse to the UCP.

But the UCP did a stunningly poor job of legislating these amendments.

They failed to extend the affiliation bar to election TPAs; they failed to create a meaningful mechanism for Elections Alberta to apply the affiliation bar; and they failed to account for accrued funds in election accounts.

But looking at their positions, for example, that CUPE should be prohibited from political speech because of some very limited shared personnel with NDP, the clear takeaway is this: They wanted to unconstitutionally muzzle labour organizations, and now they're just mad that their efforts turned out not to work for this election cycle.

*****

Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.

This post does not contain legal advice, but only general legal information.  It does not create a solicitor-client relationship with any readers.  If you have a legal issue or potential issue, please consult a lawyer.