Law Society submission on electoral finance

The New Zealand Law Society has done a submission on the electoral finance review. I will do extracts below but it very strongly makes the point that the review assumes regulation is needed too oftne, when it has not defined what the problem is. This is a theme several submitters have made – any restriction on the right of citizens to get involved in the political process must be justified by pointing to actual harm done by not restricting those rights. Potential or imagined problems are not enough.

Their primary submission is:

that electoral finance law should not restrict the communication of political views nor engagement in political debate (including the opportunity to persuade others of the merits or otherwise of policy or candidate) unless there is an identified reason to do so; and the first step should be to identify the mischief that gives rise to the need to have electoral finance law. The next step is to design laws, including related structures or institutions, that effectively address the identified mischief. Laws that are ineffective or inappropriate (whether because they are too easily avoided or cast too wide) do not enhance the electoral system or the law.

They criticise the issue paper:

The Society considers that the Issues Paper and the wider debate around electoral finance law suffer from an inadequate definition of the problems or potential problems that the regulation of political activity seeks to remedy. Responses to questions about the content of regulation of political activity should be based on a comprehensive discussion and understanding of what the problems and potential problems of unregulated political activity are. A clear need to regulate should be identified.

They raise issues with the “fairness” principle:

Principle 1 is rather loaded. Fairness and equality are not the same. Some candidates will be better public speakers than others; that does not entitle some to presentation lessons, though they can buy them themselves if they wish. Independent candidates, or single issue parties may not get the same opportunities to explain policies and influence voters. Not every leader may be invited to a televised leaders debate?

This is similiar to the point I made in my submission. My example was it is proven in US presidential elections that shorter candidates do not get elected often. There are dozens of factors that can be regarded as unfair. It is trite to assume that money is the only factor that can cause “unfairness”, let alone that it must be regulated. My suggestion was the threshold for intervention should be “manifestly unfair” rather than just “unfair”.

Unidentified donations up to a total of $10,000 p.a. for each group of related persons or entities should be permitted but disclosure of the fact of them should be very soon after receipt.

They are saying the current disclosure threshold of $10,000 is adequate, but that disclosure should happen faster and related persons or entities be treated as one person. I agree with all of that. I advocate monthly disclosure of donations, and some sort of related persons and entities rule would prevent the scams we saw with NZ First where they got up multiple $10,000 donations from the same donor, but disclosed none of them as they were paid through different companies.

Should there be a prohibition on donations from certain sources (for example, overseas individuals, or corporate, or unincorporated entities)?

No. There are many anomalies at both corporate and individual level and it would be so easy to use local branches of overseas entities that the appropriate course is to allow the donations and publish if over the threshold.

I agree. Transparency is the key.

in addition to the rule that Parliamentary Service funding cannot be used for electioneering, funding for all communication services could be suspended during a period before an election. This period could begin the day after
the day that Parliament sits for the last time before polling day. Arguably, MPs do not need communication services funding during this time because almost all of their communication will be electioneering, paid for from their own campaign funds.

This is also in line with what I advocate. I actually think you suspend funding of communication services for the entire regulated period, but if that is too long, then at least for the period after the House last sits.

Moreover, this suspension of funding would better accord with the principle of equity by not giving incumbent MPs an advantage over other candidates for election. Incumbent MPs have an advantage as they can use public funding to communicate with their constituents. Even communication that is not electioneering helps to raise a candidate’s profile. Levelling the playing field for all candidates in the period immediately before polling day is desirable.

Agreed. But will the MPs? It is up to us to pressure them to do so.

If campaign broadcasting continues to be regulated in a similar way to how it is currently regulated, then parties who receive an allocation of time and money should be able to spend their own money on campaign broadcasting. The State should not determine a party’s ability to campaign using broadcasting through a government decision on how much time and money the party can use for broadcasting.

Absolutely. It is sad Labour is backing a regime that prevents smaller parties from using their own funds to get as much airtime as the larger parties get from the taxpayer.

The focus of electoral finance law should be on regulating the conduct of politicians (which is a reason why reform should be initiated by an inquiry that is independent of the political process), not the conduct of voters.

Excellent way of putting it.

There should not be regulation of negative or attack advertising, other than the requirement that advertising material disclose the identity of the person disseminating it and the law that regulates all forms of expression, such as the law of defamation. The law of defamation will often be able to deal with the spreading of false information.

However, there is still the potential for false information about candidates for election to be disseminated. False information in political debate can be damaging as it may adversely affect voters’ choice. Knowing the identity of the person disseminating material containing false information will allow candidates for election to deal with situations where false information is spread about them (Issues Paper, para 4.26). It can also be argued that the best test of truth is to allow different claims to be circulated in the free market place of ideas. Transparency is a necessary and sufficient requirement on negative or attack advertising.

The free market of idea is one I like.