A few years ago, Michael Adams illuminated the many ways in which the United States and Canada are hardening in their views on civil society, culture, and politics. Entitled “Fire and Ice,” the book marshals an encyclopedic volume of data to show that Canada retains its own distinct identity—one that remains vibrant and strong despite being subject to omnipresent American influences.
But if the book left any doubt that the United States Constitution and the Canadian Charter of Rights and Freedoms are anchored in divergent constitutional values, the recent judgment of the Supreme Court of the United States in Citizens United v. Federal Election Commission should confirm that the United States and Canada orient themselves toward different conceptions of democracy, at least with respect to private expenditures in political elections. Whereas Canada adheres to a model of egalitarianism, the United States appears to adhere to a model that may be best described as libertarian.
Begin with the relevant Canadian case: Harper v. Canada (Attorney General), in which the Supreme Court of Canada upheld a law limiting advertising expenditures by individuals and groups to a maximum of $150,000 nationally and $3,000 in a single electoral district. Writing for the majority, Justice Michel Bastarache outlined the egalitarian foundations of democracy in Canada:
"The Court’s conception of electoral fairness … is consistent with the egalitarian model of elections adopted by Parliament as an essential component of our democratic society. This model is premised on the notion that individuals should have an equal opportunity to participate in the electoral process. Under this model, wealth is the main obstacle to equal participation. Thus, the egalitarian model promotes an electoral process that requires the wealthy to be prevented from controlling the electoral process to the detriment of others with less economic power." [para. 62; internal citations omitted]
In contrast, last week in Citizens United, the Supreme Court of the United States invalidated analogous limits on advertising expenditures in the United States. Henceforth, groups like corporations and unions are no longer subject to restrictions on the amount they may spend independently of political campaigns. The Court’s judgment, delivered by Justice Anthony Kennedy, is revealing in many ways, but most notably in just how sharply it departs from the words of Justice Bastarache:
“Speech,” wrote Justice Kennedy, “is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” [p. 23]
Moreover, “political speech is indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.” [p. 33; internal citations omitted]
All of which, for Justice Kennedy and the majority, suggests that “the appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.” [p. 44]
This is fascinating evidence of the contrast of cultures between the United States and Canada, and also of their conflicting visions of popular participation in the political process.