Several Canadians have tried to enforce campaign promises through the courts. Generally, they’ve argued that a campaign promise is a contract between the candidate and the voters — the candidate agrees to make certain decisions in exchange for the voters’ support.
This was one of the arguments made by the Canadian Taxpayers Federation (CTF) in a lawsuit against Ontario Premier Dalton McGuinty. During the 2003 provincial election campaign, McGuinty made a written pledge not to create any new taxes. Once elected, he went back on his word by establishing a healthcare premium.
The Ontario Superior Court dismissed CTF’s case. While recognizing that it’s desirable for politicians to keep their word and that many voters cast their ballots based on a candidate’s platform, the Court ruled that campaign promises cannot have the status of legally enforceable contracts. Here’s why:
If every individual or organization that expresses support for a politician or party or votes in favour of a politician or party by reason of a pledge or promise made is then free to bring an action in contract against the politician or party to compel the execution of that promise or pledge, our system of government would be rendered dysfunctional.
In other words, broken campaign promises are so common that making them actionable would paralyze government. Cynics would agree because they think politicians are dishonest. Optimists would also agree because they understand that politicians sometimes have to modify their positions to reflect changing circumstances. Whatever your perspective, broken campaign promises are a fact of life and the courts are reluctant to correct them.
The CTF isn’t the only group that has tried unsuccessfully to enforce a politician’s broken promise through the courts. In Hogan v. Newfoundland, a group of Roman Catholics tried to overturn a decision abolishing public funding for denominational schools in the province because it violated a pre-Confederation promise by Joey Smallwood to the Archbishop of St. John’s. And, in Ruffolo v. Mulroney, a voter sued the former Prime Minister for breaking promises he made during the 1988 election campaign relating to postal service and free trade.
Judges wisely stay out of the deals struck during election campaigns because it’s the voters’ job to hold politicians accountable. There are two good reasons for this. First, politicians sometimes make promises that are popular when they’re running for office, but once elected developments conspire to change public opinion.
A good example of this is the Conscription Crisis of the 1940s where the vast majority of Canadians (outside Quebec) voted in a plebiscite to relieve Prime Minister William Lyon Mackenzie King of his campaign promise not to impose conscription. If campaign promises were contracts, opponents of conscription could have used the courts to thwart the popular will. Now that would have been a crisis.
There’s a second reason not to allow the courts to enforce campaign promises — sometimes politicians have to make unpopular decisions that are in the best interests of the country. This was the case with the current government’s decision to tax income trusts, despite promising not to in 2006 election campaign. After taking office, the Conservatives realized that the proliferation of income trusts would decrease government revenues and hurt the competitiveness of Canadian companies. Giving disgruntled investors the right to overturn this decision would put their interests ahead of society’s.
Basically, if campaign promises were contracts, politicians would be even less responsive to public opinion and more unlikely to do the right thing. The remedy for broken campaign promises is political, not legal. The only way to protect yourself is to make a fully informed vote the first time. Voter beware.
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