The recent Bencher election for the Law Society of Ontario (the “LSO”) was a heated and political affair. Candidates presented themselves for election, publicized platform commitments, communicated with electors by email and pamphlet, and even, controversially, organized themselves into competing slates. It had the look and feel of the kind of election we are all familiar with for federal, provincial, or municipal office. One of the differences, however, is that those other elections all have meaningful campaign finance legislation that regulates money in politics. While By-Law 3 sets out in detail some aspects of LSO elections, it is silent on campaign finance.
We acknowledge that there is an important and ongoing debate on whether elections for the governing body of a professional regulatory entity are appropriate at all. If elections are here to stay, however, then the rules that regulate them need to keep up with the times. In the recent Bencher election, many questions were raised about who was funding candidates, how much money was being contributed and spent, and what role outside groups had. The absence of meaningful campaign finance rules meant that these questions were unanswered, to the detriment of electors who had to cast ballots with incomplete information and the general public in whose interest the LSO serves.
This column sets out briefly why campaign finance rules matter and what values they serve. While there are important scholarly and political debates about which campaign finance rules are best, there is a minimum set of rules necessary to have transparent, accountable and fair elections.
While there is significant variation among Canadian jurisdictions as to the particular content of campaign finance law, as a general matter such rules further three values: transparency, anti-corruption, and levelling the playing field.
Transparency: Common rules that further transparency include public disclosure as to who donates to which candidate/party and in what amount. Such information helps inform voters as to how to cast their ballots. For example, in a Bencher election it may be useful for a voter to know if a slate was funded exclusively, or even substantially, by firms in Toronto or a political interest group. In a context where there are no limits on contributions (as is currently the case), it also especially matters if there is disclosure as to the amount contributed. Disclosure in the service of the value of transparency helps provide voters the necessary information to cast ballots, but also allows for the public to assess the decision-making of elected Benchers.
Anti-corruption: “Corruption” is a strong word and requires some elaboration. In campaign finance law there are two main types of corruption that are in play. One is “quid pro quo” corruption, such as the proverbial brown paper bag filled with cash handed over to the politician to have them vote a certain way. A second form is what Lawrence Lessig calls “dependence corruption,” whereby candidates who need money anticipate the needs of large donors in their policy positions so as to be appealing as potential recipients of their largesse. Campaign finance law operates to minimize corruption of both kinds by setting limits on how much can be contributed to candidates or parties. Take the situation of an individual with resources providing significant funding to a candidate, for example. A reasonable observer might wonder, in the event of a conflict between the contributor’s interests and the public interest, which would be chosen by the Bencher who had received the funding.
The LSO obviously has a narrow mandate in comparison to the House of Commons or Legislative Assembly at Queen’s Park. The LSO’s regulatory mandate includes authority over many matters, however, that have an impact on the bottom line of firms, individual legal professionals, and other private actors. Anti-corruption concerns are relevant for LSO elections since Benchers exercise significant discretion in their decision-making.
In a recent Law360.ca article, LSO Bencher Atrisha Lewis reflected on an example of an “AI tech company who wants to have its tech passed or approved regulatorily by the law society” and which decides to “find a bunch of candidates and throw a lot of money at it”. Lewis observed that it could be “a highly problematic scenario” and noted “similarly, there could be organizations who have special interests, along social values, who could also be contributing and funding campaigns as well.”
Benchers are already governed by a Code of Conduct that prohibits improper uses of their influence and requires them to identify material conflicts of interests. As directors of a board, Benchers also have fiduciary obligations that require them to act in the best interests of the LSO. While these protections are important, they are insufficient given the amount of money that it appears is being spent in Bencher elections. It is likely to be difficult to detect or prove that a Bencher has acted in a conflict of interest because of a campaign donation, except in the most blatant cases. It’s better to avoid the potential for improper influence in the first place by setting a limit on contributions.
Contribution limits must be carefully calibrated. They should be high enough to enable meaningful expression and participation by a contributor, while being low enough that the recipient candidate would not be corrupted by receiving the contribution or dissuaded from going against the interests of a contributor.
Levelling the Playing Field: Limits imposed on spending on campaigning and advertising by candidates, parties, and interest groups are in service of the goal of levelling the electoral playing field. The idea behind spending limits is that for elections to be truly free and fair, the voices of the well-resourced should not be permitted to drown out the voices of the vast majority of individuals and groups that do not have access to large amounts of money. The Supreme Court of Canada has upheld the constitutionality of spending limits as part of the “egalitarian model of elections.” Spending limits on candidates and parties are generally accepted as necessary to have a level playing field not dominated by the wealthiest. The legitimacy of spending limits of all types but specifically with regard to interest groups is challenged by libertarians who view them as inappropriate restrictions on political expression that unduly target particular groups, including the wealthy and corporations, or particular viewpoints.
Concerns about access to money driving an unlevel playing field in Bencher elections have existed for some years now. Although the amounts that individuals spend on Bencher election campaigns vary considerably and there are no disclosure requirements, it has been anecdotally and repeatedly reported that it is not uncommon for some candidates to spend over $50,000 on their campaigns (see, here and here, for example). Following equity concerns being raised about unequal access to campaign funding, the LSO’s Equity and Aboriginal Issues Committee studied this issue and, in 2007, tabled a report in Convocation. The report called for, among other things, campaign spending limits on the basis that this would “enhance transparency, accountability and fairness in bencher elections.” At that time, Convocation voted to refer the matter back to the Committee for further consideration and no changes were made.
It is important to note how interconnected the rules on spending applicable to different political entities are. For example, capping candidate spending means little if parties/slates can spend an unlimited amount. Money will predictably flow to the least regulated entity. This fact is one of the truisms of campaign finance law in all jurisdictions.
If the LSO chooses the egalitarian model and wants to cap spending by candidates, slates, and perhaps outside groups engaging in advertising, then the exact amount of the permitted spending will require serious thought. The calculation is similar as with contribution limits. The goal should be to set an amount that is significant enough to allow meaningful expression and participation, while not so high as to permit amounts of spending that would facilitate an unequal playing field.
What is to be Done?
While there is significant academic and political debate about the ideal campaign finance system, the idea that some rules are required should not be controversial.
Basic and widely accepted rules include disclosure as to the source and the amount of donations and a limit on the maximum donation permitted. In the LSO Bencher election context, such measures would further transparency and anti-corruption values. An additional consideration is who should be permitted to donate. For example, should donations only be permitted from individuals and not corporations or law partnerships? And what about non-licensee donations? Should only lawyers and paralegals be entitled to donate to lawyer Bencher and paralegal Bencher elections, respectively?
The Benchers should also give serious consideration to whether to impose spending limits on candidates and slates and to whether or not interest groups advertising or campaigning should have their spending regulated. Regulation of interest groups could include a registration requirement and spending limits.
For the LSO, any Bencher campaign finance reform proposals will, of course, have to consider the practicality and cost of enforcing such reforms. It is true that the LSO doesn’t have the same staff and financial resources that Elections Canada has to govern election campaigns. That said, smaller municipalities regularly hold elections with financing rules in place, as do students’ unions across Canada.
The LSO is also not without resources. In 2022, its annual fee revenue was $90.9 million. We recognize that this revenue is already being used to fund important functions and programming – our point is simply that the LSO is a large, well-resourced organization that could, presumably, find funds to implement campaign finance rules if it is recognized as a priority. Such rules, and their enforcement, should be tailored to the law society context. The need for tailored rules, however, does not mean that there should be no rules.
We also note that, although campaign finance rules are not common among professional regulators, some precedent exists. Before the Ontario College of Teachers moved to a competency-based application and selection process for its Council, the regulations that applied to its elections required that those elected to the Council report, within 30 days post-election: (a) the amount of money received in relation to the election; (b) the value of goods or services received in relation to the election; and (c) the sources of the money, goods or services referred to in clauses (a) and (b). Another example is that the Council Elections Guide for Professional Engineers Ontario explicitly prohibits “fundraising requests” in a candidate’s material.
Exactly ten years ago on June 27, 2013, an LSO Bencher Election Working Group published a report proposing certain Bencher election reforms. The proposed reforms included relatively narrow measures such as reducing the number of nominators required from at least ten to at least five and requiring that a candidate’s biographical information in their nomination form include their e-mail address. Campaign spending limits were reported to have been considered by the Working Group but ultimately rejected because of “(a) the problem with defining an appropriate limit; (b) the lack of any real mischief; and (c) the cost of ensuring compliance.”
Whether this was the correct policy approach in 2013 is perhaps debatable. It is clear, however, that times have changed. The 2023 Bencher election was radically distinct in its dynamics from previous elections. In our view, these dynamics – which included the use of slates, growing questions about the source of Bencher election donations and continued concerns about access to money leading to an uneven playing field – make the need for campaign finance reform at the LSO undeniable. If elections are to continue and to be so hotly contested, then reform is essential, especially given the important mandate of the LSO to operate in the public interest. We hope that the Benchers that were elected will take up the issue of campaign finance reform and give serious study as to the best set of rules for LSO elections.
 Colin Feasby, “Libman v Quebec (AG) and the Administration of the Process of Democracy Under the Charter: The Emerging Egalitarian Model” (1999) 44 McGill LJ 5; Harper v Canada (AG), 2004 SCC 33 (CanLII) at para 62.
 Equity and Aboriginal Issues Committee, Report to Convocation (January 27, 2007).