Get with the program: Third parties and political advertising

2022 edition of the Ontario Provincial Election

Public discourse and civic participation take many forms during an election. Among other things, individuals can choose to donate to a political party, third parties can run advertising campaigns, and grassroots organizations can lobby candidates and political parties to adopt preferred political positions. There are rules that carefully govern these activities in Ontario and the interactions between political entities and stakeholders – whether individuals or organizations.

In this article, as part of McMillan LLP’s ongoing coverage of this year’s provincial election in Ontario, we discuss the Election Finances Act, third-party organizations and rules regarding political advertising during and outside of elections. The Ontario provincial election will likely take place on June 2, 2022. The election period begins at 12:01 a.m. on the day the writ of election is issued and ends on the last day of the election.

Who are Third Parties?

To influence public policy and opinion, third parties frequently participate in the political process. As such, third parties actively engaged in public discourse are subject to certain rules and requirements to ensure the transparency and fairness of our democratic system.

Third parties are generally defined as persons or entities other than a registered candidate, registered district association or registered party.[1] This definition encompasses grassroots organizations and large corporations – and everything in between.

Third Party Contributions

To finance their political activities, third parties often accept contributions. There are fewer restrictions on contributions to third parties than those governing contributions to political parties and candidates. Third parties may accept contributions from individuals ordinarily resident in Ontario, corporations operating in Ontario that are not registered charities, and labor unions.[2]

There are no monetary or non-monetary limits on the amount that can be donated to third parties, but donations cannot be anonymous,[3] and all contributions over $100 are reported to Elections Ontario and subsequently published.[4]

What is political advertising?

Of course, once third parties accept contributions, they will want to use those contributions to fund political activities. More often than not, third parties will use funds to purchase advertising for the purpose of influencing the election. So what exactly constitutes political advertising?

Political advertising is advertising in any broadcast, print, electronic or other media for the purpose of promoting or opposing a registered party, its leader or the election of a registered candidate.[5] Some might be surprised to learn that “political advertising” can also extend beyond partisan messaging or explicit endorsements by political entities: the definition of political advertising can encompass advertising about public policy issues, also known as “issue advertising”, which can reasonably be considered to be closely associated with political parties, candidates and leaders.[6]

Topic advertising can be a difficult area of ​​law to navigate, in particular. For example, a third party may run ads on an issue unrelated to a campaign – or so they thought – until a political party or candidate decides to discuss the issue as part of a platform. -electoral form. In this case, non-partisan advertising may be reclassified as political advertising and, on a case-by-case basis, the Chief Electoral Officer may determine whether such communication is political advertising.[7] Therefore, it is important to seek professional advice if you or your organization are likely to fall under the broad definition of “political advertising”.

All political advertising must name the third party who authorized the advertisement so that the public knows who created and published the information they consume.[8] Additionally, sellers must keep records of political ads for at least two years after the ad appears, sellers who violate these rules are subject to fines and penalties.[9]

Spending limits for political advertising

In Ontario, there are also strict spending limits on how much third parties can spend on political advertising.

Third-party spending limits for political advertising depend on whether or not fixed-date elections are called. For fixed-date general elections, which include the 2022 Ontario provincial election, a third party cannot spend:

  • more than a total of $654,600 outside of the election period (the 12-month period preceding election day) for political advertising purposes;
  • more than a total of $109,100 during an election period (from polling day to polling day) for the purpose of political advertising;
  • more than $26,184 outside of the election period in a single electoral district for political advertising purposes; and
  • more than $4,364 during an election period in a single electoral district for political advertising purposes.

Third parties must strictly adhere to the above spending limits, and any attempt to circumvent the law by colluding or improperly sharing information with political entities, outside vendors, or other third parties is expressly prohibited. Likewise, third parties cannot split into separate entities for the purpose of spending beyond the maximum amount allowed.[10]

Election advertising expenses include not only cash payments made to outside vendors, but also any internal resources devoted to facilitating third-party political advertising. Therefore, third parties should carefully track all additional activities and expenditures that facilitate political advertising.

It is important to note that given recent changes to the Election Finances Actsellers selling political advertising to third parties are responsible for ensuring that third parties do not exceed their budget.[11] In particular, media companies and other publishers should seek professional advice when selling political advertising to third parties.

Registration conditions

Third parties must register with Elections Ontario immediately after spending $500 or more on advertising during an election period or in the twelve months preceding a general election.[12] To register, third parties must appoint a CFO; appoint an auditor if the third party intends to spend or is spending $5,000 or more on political advertising;[13] and submit the required application form.[14]

There are many considerations when participating in an election, whether as an individual, lobbyist, third party organization or political entity. These considerations are particularly nuanced with respect to third parties and political advertising. It is important to ensure compliance and to work with trained professionals who can help you and your organization navigate applicable lobbying and election finance laws.

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