Political Equality and the Regulation of Election Spending by Parallel Campaigners

Abstract

The regulation of political finance, including the funding of political parties and election campaigns, remains contentious in many democracies. A particular focus of debate has been the regulation of ‘parallel campaigners’– that is, non-candidate and non-party political actors – wanting to influence the election outcome by bringing to bear their economic resources. Drawing on both recent unsuccessful and current attempts at reforming the regulation of election spending by parallel campaigners in New Zealand, this paper explores the conflict between the democratic right to freedom of expression and the idea that all citizens should have a fair opportunity for effective political influence. It is argued that Joshua Cohen's principle of political equality, which entails the balancing of these two values, provides a justifiable framework for regulating political finance, including parallel campaign expenditures, in liberal democracies.

Notes

¹In addition to the Electoral Act 1993, State funding provided during an election period in the form of a broadcasting allocation and other matters relating to electoral advertising on television and radio are regulated under the Broadcasting Act 1989, while the annual funding of parliamentary parties through the Parliamentary Service budget is administered under the Parliamentary Service Act 2000. Prior to the 1990s there was almost no regulation of political parties' funding and expenditure in relation to their electoral activities (see: Edwards 2008b, 101–02; Geddis 2006, 16–7; Geddis 2010, 328–29).

²Under the Electoral Act 1993, a candidate can spend up to $20,000. Listed parties (that is, those taking part in the party vote) may spend a maximum amount of $1 million plus $20,000 for each constituency contested by a candidate for that party. There are presently 70 electorates – 63 general electorates and 7 Maori electorates. Accordingly, the maximum possible amount of election expenses of any ‘listed’ party in a general election is $2.4 million. Where a party does not contest the party vote but has candidates standing in constituencies, the total election expenses of the party cannot be greater than $20,000 for each constituency contested by a candidate for that party.

³Pursuant to the Broadcasting Act 1989, the use of any broadcast media (public or private) by anyone for political purposes is limited to registered political parties and constituency candidates.

⁴As used in the EFA, the term ‘third party’ meant a parallel campaigner. In referring to non-candidate and non-party political actors, the more common terminology in the discourse on election finance now appears to be ‘parallel campaigner’.

⁵It appears that anger generated by the EFA is slow to dissipate in some quarters, particularly in regard to the effects on the rights of parallel campaigners. For instance, an editorial in Wellington's major newspaper almost a year after the 2008 general election commented that: ‘Labour's Electoral Finance Act was an anti-democratic disgrace. One of its worst features was curtailing the rights of those who wanted to spend their own money throughout an entire election year in trying to gain a particular outcome [ … ].’ (The Dominion Post 2 October 2009, B4).

⁶The governmental review was launched on 1 April 2009 with the release of a scope paper (Ministry of Justice 2009c). This was followed by an issues paper released for consultation on 22 May 2009 (Ministry of Justice 2009b). A proposal paper containing the Government's proposed options for electoral finance reform was then released for consultation on 28 September 2009 (Ministry of Justice 2009a). The final part of the review – the legislative stage – is in progress (see below). It is expected that the review will result in new electoral finance legislation being implemented by the end of 2010, in time for the 2011 general election.

⁷The reform package was announced on 16 February 2010 (New Zealand Government 2010).

⁸For the Cabinet paper seeking approval for introduction of the Bill, see Office of the Minister of Justice (2010).

⁹In accordance with the Minister of Justice's subsequent recommendation to the Cabinet (Office of the Minister of Justice 2010, paragraph 82.6, 12), the Electoral (Finance Reform and Advance Voting) Amendment Bill provides for the registration threshold to be increased at the rate of inflation for general elections after the 2011 general election.

¹⁰The Cabinet originally agreed that the regulated period would be the three months before polling day (that is, the status quo). After further consideration by the Cabinet, however, the regulated period has been redefined so as to provide three possible triggers to prevent the risk of retrospective application. As a result, the regulated period may not in any case exceed three months, but may be less than three months.

¹¹Orpin and Wilson (2009, 369) make a valid criticism of the governmental review in noting that there is even no indication of an analysis undertaken in the review in relation to the New Zealand Bill of Rights Act. (The Act was considered by some to have received inadequate attention with respect to the drafting of the EFA (Geddis 2008, 217)).

¹²See also Ministry of Justice (2009a, paragraph 8.10, 34).

¹³The reason given for this, ironically, is not because it might promote transparency – one of the Government's proposed guiding principles – but because ‘there was consensus across submissions’ for this reform (Office of the Minister of Justice n.d., paragraph 8, 2).

¹⁴However, the courts have been less lenient when it comes to making donations to political candidates by ruling in favour of regulation. The primary reason for this is the realisation by the courts that the State has a legitimate concern to prevent the possibility of actual or perceived quid pro quo corruption – that is, the giving of donations in exchange for political favours – because corruption subverts the political process.

¹⁵To be sure, a principle of political equality is not the only prerequisite for ensuring that a system of collective decision making is binding. Further relevant requirements are that decisions be fundamentally just in accordance with some suitable notion of justice, and that they promote the general welfare. Nonetheless, the standards established by a principle of political equality will typically subordinate other factors with the exception of the most basic precepts of justice (Cohen 2001, 49).

¹⁶See Schumpeter (1987, chapter 22) for an early discussion of an elite theory of democracy.

¹⁷Hannah Arendt (1998, 176) was of the view that it is through speech and action that human beings have the means to expose their distinctness and, moreover, the initiative of speech and action is inseparable from what it means to be human; nothing less is acceptable if we are to ‘insert ourselves into the human world’.

¹⁸Rawls (1999, 477) alluded to a similar insight when he commented that ‘[t]he basis for self-respect in a just society is not [ … ] one's income share but the publicly affirmed distribution of fundamental rights and liberties. And this distribution being equal, everyone has a similar and secure status when they meet to conduct the common affairs of the wider society’.

Additional information

Notes on contributors

Jonathan Boston

Jonathan Boston is Professor of Public Policy and Director of the Institute of Policy Studies within the School of Government at Victoria University of Wellington. Alec Mladenovic is a researcher at the Institute of Policy Studies

Alec Mladenovic

Jonathan Boston is Professor of Public Policy and Director of the Institute of Policy Studies within the School of Government at Victoria University of Wellington. Alec Mladenovic is a researcher at the Institute of Policy Studies