The Local Elections Campaign Financing Act has been introduced in the Legislature. When it receives Royal Assent, the Act will impact the manner in which candidates record and report their election expenses. It will also create new reporting requirements for sponsors of election advertising, and give increased powers to BC Elections to monitor and enforce the regulations that surround local government elections in BC.
There are two bills currently in front of the Legislature that impact local government elections – Bill 20, the Local Elections Campaign Financing Act (LECFA), and Bill 21, which contains amendments necessary to make the LECFA consistent with the Local Government Act and other statutes that regulate local government elections.
The LECFA is the result of the Province’s White Paper on Local Government Elections Reform. The White Paper envisages two rounds of reform – one in advance of the upcoming 2014 local government elections, and another to take place before the following election, which will occur in 2018. The LECFA represents the first round of reform, and has the general purpose of clarifying existing campaign financing reporting requirements, and imposing additional registration and reporting requirements, primarily for election advertising sponsorship. The next round of changes is supposed to introduce campaign financing limits, and will likely be a more contentious piece of legislation.
The LECFA is by and large similar to the draft legislation recommended in the White Paper. The changes that the Bills introduce are too numerous to canvas in full here. In fact, the biggest change introduced in the Bills has nothing to do with campaign financing at all. Bill 21 changes the current three year election cycle for local governments to a four year cycle. The Province’s stated purpose for this change is to give local governments more time to plan and achieve community goals.
As mentioned above, the LECFA introduces new requirements relating to election advertising. These advertisements must now contain information identifying the name and contact information of the sponsor. Sponsors must also register with BC Elections and are subject to reporting requirements for the funds used to create their advertisements. Election advertising sponsors will be prohibited from accepting any anonymous sponsorship contributions of more than $50. This restriction will take effect the day after first reading of Bill 21 (March 27, 2014). The Bill removes the concept of “campaign organizer”, which under the current rules is intended to capture any person who “augments” an election campaign, and replaces it with the arguably more precisely defined concepts of “election advertising” and the “sponsor of election advertising”.
Similarly, the Act creates disclosure requirements for the sponsorship of advertising related to what is now referred to as “assent” voting (what is currently known as “other voting”). The sponsorship of advertising espousing a position in relation to an assent voting process now be registered and reported in a manner similar to election advertising. This change was in response to a 2009 UBCM resolution. The advertisements must also contain information disclosing the identity and contact information of the advertisement’s sponsor. Importantly, the disclosure requirements do not apply to amounts spent by the local government of the jurisdiction for which the assent voting is being held.
The Act also changes the test that the courts will apply when determining whether to grant relief from a failure to comply with disclosure requirements. Under the current legislation, candidates can be granted relief if they acted in “good faith”. Under the LECFA, the standard that applies is “due diligence”, which is likely to be interpreted as imposing a stricter standard. Broadly speaking, rather than the candidate satisfying the court that they did not act for an improper purpose, the candidate will have to demonstrate that they exercised all reasonable care in attempting to comply with the disclosure requirements.
The LECFA also creates an enhanced role for Elections B.C., partly by transferring some of the local authority’s responsibilities for overseeing elections to Elections B.C. Disclosure statements will have to be filed with Elections B.C., rather than with the relevant local authority. The LECFA also gives Elections B.C. investigative and auditing powers, the ability to order a supplementary disclosure statement, and to apply for an injunction to assist in enforcement, among other powers. While the LECFA removes some of the local authority’s responsibilities regarding disclosure statements, it creates new responsibilities regarding the transmission of candidate information to B.C. Elections.
While disclosure statements will no longer be filed with the local authority, these statements will be provided to the local authority by Elections B.C. Local authorities will still have a duty to make disclosure statements publicly available at their offices, either via the internet or by hardcopy.
Bill 21 contains provisions intended to ease the transition from the current legislative regime surrounding elections to the new one. It gives the Province the ability to make regulations to address transitional difficulties encountered in bringing the new legislative regime into operation. It also contains provisions stating that most of the new requirements will be fulfilled if a person “exercises best efforts” to comply with the requirements. Precisely what level of compliance will be necessary to constitute “best efforts” is unclear.
One significant difference between the draft bill in the White Paper and the bill that is now in front of the Legislature is the treatment of anonymous donations. Section 87 of the current Local Government Act creates a fifty dollar limit for anonymous donations. The draft bill in the White Paper recommended prohibiting anonymous campaign contributions altogether. However, Bill 20 contains the same fifty dollar limit for anonymous contributions that is currently in the LGA.
