Hiding behind blackout will persist until law is changed

Opinion

Hey there, time traveller!
This article was published 28/05/2024 (500 days ago), so information in it may no longer be current.

Manitoba’s much-maligned election campaign blackout has officially become the cockroach of electoral laws: it’s ugly, persistent and cannot be killed by conventional means.

Case in point: after calling a provincial byelection for June 18 in the riding of Tuxedo, the NDP government decided to keep its budgeted advertising campaign in place despite an election blackout law that requires all government announcements and advertising to be suspended.

You would think the law blacking out government advertising within 60 days of a general election or during the campaign period for a byelection would require the government to take down these promotional spots.

Not so. The NDP government have elected to use the very same loopholes, in the very same way, as the previous Progressive Conservative government. This, despite the fact that just last summer, the then-opposition NDP howled about Tory premier Heather Stefanson exploiting “a loophole” to run government ads in the leadup to the fall provincial election.

The so-called loophole was created by former Tory premier Brian Pallister, who made several changes to the Elections Financing Act in 2020 to shorten the blackout period from 90 days to 60, and to allow governments to make announcements or advertise any matter that was actively being considered by the legislature.

That provision was used by the Tories to allow them to continue announcing anything included in the Budget Implementation and Tax Statutes Act, an omnibus piece of legislation better known in political circles as BITSA.

Although the NDP disputed the Tory strategy, it was reviewed and approved by Elections Manitoba.

Following the June 2022 byelection in Thompson, elections commissioner Bill Bowles reviewed the complaint and the legislation, and determined the government could advertise “about a budget currently before the legislature during a byelection with any review for partisanship under the Elections Financing Act.” Like BITSA.

Based on the number of complaints it filed with Elections Manitoba over violations of the blackout law, you would think the NDP would be primed to overhaul the act when it got back into power. That clearly hasn’t happened.

In fact, a review of past public statements confirms the NDP, even when it was condemning the PC government, stopped short of any promise to change the legislation if and when it became government.

That caveat has allowed the NDP to carry on with the very same practices they criticized when the old government was in power, with the comfort of knowing they never promised to do things differently.

Unfortunately, this gerbil-wheel debate over government advertising immediately before and during campaigns means no political party seems willing to make much needed changes to the law — such as amending the Election Finances Act to ban all budget publicity during election campaigns.

Billboards, bus shelter ads and radio spots that promote highlights of a provincial budget are intrinsically partisan. Governing parties may argue otherwise, but spending hundreds of thousands of dollars to advertise the merits of a budget is largely about gaining a political advantage over opposition parties.

In other words, the law should focus more on specific types of advertising and less on whether a matter is before the legislature.

The law as it exists attempts to do that, in a way.

Along with anything actively being considered by the legislature, the blackout provisions allow government to announce any information about government programs if “it is in continuation of earlier advertisements or publications concerning an ongoing or recurring program or activity.”

That would also seem to be a pretty enormous loophole that would allow for a full array of announcements, but rarely if ever do governing parties walk through it.

Last week, the Manitoba Child Care Association complained the government was using blackout provisions to justify its decision to withhold confirmation about expanding the $10-a-day child-care program to cover non-school days, including in-service days, along with spring and summer breaks.

The association said parents need to make their child-care arrangements now for the summer break but many cannot until they know if the cost will be subsidized. A spokesperson for Early Childhood Learning Minister Nello Altomare said an announcement would violate the blackout law.

Again, it would seem the blackout provisions would allow the government to announce the expansion of this child-care program. The NDP promised to provide subsidized day care in last fall’s election. And there is an additional $2.5 million in the spring budget to cover the costs.

Given that it’s included in BITSA, which is before the legislature, why can’t the NDP confirm its summer child-care plan?

In the past, government lawyers have come up with some absurd and arbitrary interpretations of what can and what cannot be announced during an election period. This seems like another example of erring on the side of caution without any regard to the impact this is having on people.

It would be great if some government, current or future, would muster the courage to fix this horrible law to stop the tradition of hiding behind legislative cockroaches.

» Dan Lett is a Winnipeg Free Press columnist