The Herald today reports that the Crown Law Office is concerned that some of the government's proposals for electoral spending reform could impact on freedom of speech. Of course they do; the question isn't whether they impact on freedom of speech, but whether they are justified limitations in a free and democratic society. And I think it's fairly clear that they are. Spending limits and disclosure thresholds are justified by the need to prevent the rich from buying elections, to prevent political corruption, and to ensure that parties are ultimately accountable to voters rather than wealthy donors. This is widely accepted - except by the anti-democratic National Party, which wishes to preserve its "right" to sell policy in secret to the highest bidder - and Crown Law apparently doesn't question it. But if we accept that, then we must also accept some restrictions on third party activity at elections, in order to prevent circumvention of the rules. Currently, we do this by requiring disclosure - every election advertisement must have the name and address of the person authorising it - and by barring advertisements which solicit support for a candidate or party unless they are authorised by that candidate or party (in which case they count as an election expense). However, the 2005 election revealed a significant hole in the rules around negative advertising, as well as an unprecedented attempt to circumvent them by a clique of wealthy right-wing donors (for example, the Talley Brothers' plan to set up a $1 million anonymous campaign in support of Don Brash - a plank which "stank" according to electoral law expert Andrew Geddis). These attempts at circumvention are likely to get even worse in 2008, and unless we want to see political parties (well, the National Party) making a mockery of the law and using their rich friends to buy the next election, we need to plug the loophole. Requiring third-parties to register and subjecting them to a spending cap does this, while the exemption for communications with members preserves their freedom of speech while also encouraging democratic participation.
(I should note at this stage that there are already third-party declaration and spending limits in the Citizens Initiated Referenda Act 1993, and that from my quick skim of Hansard they did not attract an adverse BORA report. I'm currently trying to OIA Crown Law's advice on those limits, as well as their advice on the 1992 Electoral Reform Bill, which became the Electoral Act 1993...)
Crown Law's other concern - about the proposed ban on foreign donations - is equally unsustainable. Democracy is fundamentally about a community governing itself. It follows from this that policy should be decided by that community - not by rich foreigners. We've already had one case of a wealthy foreigner trying to buy political support for a government, and that is one too many. Limiting donations to New Zealand citizens or residents (or organisations with a New Zealand presence - which means at least a PO box) will prevent this sort of abuse, and given our liberal attitude towards dual citizenship, its not too onerous a restriction.