One benefit of being a regular Slaw columnist is the ability to revisit previous columns. Roughly four years ago, I wrote a column titled “Why Is the Law Society Donating to Political Parties?: Some Answers and Questions” where I explored and questioned the fact that the LSO (then LSUC) made donations totalling $21,000 in 2013 to the provincial Liberal, Conservative and NDP parties, as reported in a Law Times article.
At the time, the Law Society explained, in part, that “[c]ontributions are only made through the purchase of tickets to attend events hosted by the parties and/or elected politicians” and that “[t]he Law Society’s goal in participating in these events is to advance the knowledge of the government and the opposition regarding the agenda of the regulator and justice issues more broadly.”
Notwithstanding that the amount donated in 2013 ($21,000) represented a small portion of the Law Society’s annual budget, I thought that there were troubling questions arising from this practice and concluded the column by asking:
What is gained and what is lost when the Law Society, as an independent regulator, exchanges money for access to politicians? If the implication here is that making donations is simply a cost of doing business for organizations that wish to advance the public interest and/or the interests of their constituents in relation to the legislative agenda, what message is being sent to the public about our legal system?
Given these questions, I suggested that “discussion about the desirability of future political donations [by the Law Society] deserves a place on the agenda.”
Having not seen any further discussion of this practice, I decided to investigate what donations, if any, the Law Society had made to provincial political parties in subsequent years. Luckily, the Elections Ontario website makes this easy with an electronically searchable database (https://www4.elections.on.ca/internetapp/EFSearch.aspx). My search revealed the following for the 2014-2017 period:
A few observations about these numbers:
- One might be inclined to think that the Law Society spontaneously changed its policy regarding political donations in 2017, as there are no donations listed for this year. In fact, the lack of donations in 2017 coincides with legislative reforms (effective January 1, 2017) that ban corporations, unions and other groups not affiliated with political parties from making political donations. In other words, since 2017, it has been illegal for the Law Society to donate to political parties. To be fair, the Law Society has indicated to me that it did not wait until the law was formally amended to change its practice, stating that “[w]hen legislative reforms to restrict political donations became part of the public discourse in 2016, [it] proactively curtailed its attendance at political fundraising events.”
- Save for 2017, the annual amounts of political donations by the Law Society have been significantly higher than those reported in the 2013 Law Times I am not sure if the Law Times article used the same sources that the Elections Ontario electronic searchable database does and, therefore, I am unable to say if the difference in numbers reflects an actual increase.
- The Elections Ontario website breaks down the specific nature of the donations made and it was curious to see that some of the largest donations listed are related to by-elections. For example, in 2016, the Law Society is listed as donating $9,975 each to the Liberals and Conservatives for the Whitby-Oshawa By-Election and, in 2015, the Law Society is listed as donating $3,825 to the Liberals and $720 to the Conservatives for the Simcoe North By-Election. After talking to colleagues who are more well-versed in election finances than I am, I’ve learned that the larger by-election amounts can be attributed to a loophole under the previous legislative regime that permitted donors to exceed otherwise applicable annual limits when there was a by-election (for more details, see here and here). I also understand (although I am prepared to be corrected if wrong or over-simplifying) that it is possible for amounts to be shown through the database as by-election donations even if they were not directly given by the donor for the by-election. Indeed, with respect to the Whitby-Oshawa By-Election, for example, the Law Society indicated to me that it “did not directly donate any money” and that it was their “understanding that the listing of money donated to the by-election was the result of our attendance at an Ontario Liberal Party Heritage dinner.”
Because the Law Society is now legally banned from donating to political parties, I wondered for a moment whether it would be interesting to write about an issue that is now effectively moot. Ultimately, however, I’ve decided that this information is interesting and worth writing about for several reasons:
- Even if the Law Society can no longer donate to political parties, licensees and the public may still be interested to know that the regulator has, in 2014-2016, spent over $120,000 on supporting political parties and, indeed, has given different amounts to different political parties. While this is still a small amount relative to the Law Society’s overall budget, this amount of spending is not insignificant and the differences in the amounts given to different political parties in different years are not nominal. For its part, the Law Society believes that its previous practice was valuable and undertaken with efforts to be even-handed, noting:
In the past, the Law Society of Ontario did purchase tickets to attend political events. The amount donated often fluctuated, depending on the number of events political parties held, and whether attendance at such events was possible for scheduling and other reasons. The objective was to donate even-handedly to all parties. This stemmed from a desire to support the democratic process. It was seen as an opportunity to maintain relationships in pursuit of facilitating access to justice for the people of Ontario and to educate legislators about regulatory functions and mandate.
Readers will have to decide for themselves whether they think that the Law Society acted effectively and appropriately in making these donations in the past. For me, the concerns that I raised in my previous column about a regulator participating in cash-for-access fundraisers continue to apply to these subsequent donations and I am glad that the province has reformed its electoral finance laws.
- More broadly, the fact that (based on my informal polling) not many people know that the Law Society has donated to political parties raises questions regarding a broader systemic reality about our knowledge of Law Society financial activity. With an organization as large as the Law Society (both in terms of budget and bureaucracy) there are likely to be many spending decisions that members, the public and even Benchers are not aware of. To its credit, the Law Society takes a lot of steps to be a transparent organization, including publishing its financial statements (see, here, for example). However, the details of many spending decisions are not published and, indeed, are not necessarily accessible even upon request given that the Law Society is not covered by provincial freedom of information legislation (unlike some other statutorily established regulators such as, for example, the Ontario Securities Commission). Perhaps it would be more consistent with the Law Society’s public interest mandate to implement an access to information regime that was equivalent, if not even more open and responsive, than what is provided under provincial counterparts?
- Also on a broader note, and as I alluded to in my previous column, these donations raise questions about the Law Society acting as an advocate for the legal profession in Ontario while also acting as an independent regulator of this same profession. Even though the specific form of advocacy via political donations is now banned, this advocate-regulator tension remains. Perhaps it is time to formally and clearly separate these advocacy and regulatory functions, similar to what has been done in England and Wales?
So, to answer the question that titles this column: “No, the Law Society of Ontario is not still donating to political parties.” But, as the discussion above hopefully makes clear, important questions remain even though this practice has now ended.
At least when the attack ads come out for the upcoming June 2018 provincial elections, we won’t have to fret about any role of Law Society money in Ontario’s electoral finance regime? I’ll count this as a win for the public interest and democracy.