Saturday, April 14, 2007

Election funding: freedom of speech

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.


Personally, I prefer my Freedom of speech as undiluted as possible, neat, ideally.

Once you start excusing restrictions it's a slippery slope, leading to things like sedition charges, which I/S of all people should know.


Posted by Anonymous : 4/14/2007 06:21:00 PM

M'Lud: I consider myself fairly rabid on freedom of speech - but even I accept that some restrictions are justified if we are to have a fair electoral system.

And make no mistake, that's what this is about: our ability to have free and fair elections in which power is exercised by the people rather than the rich. That's what the right want us to give up, and its what we should spare no effort to defend.

Posted by Idiot/Savant : 4/14/2007 06:49:00 PM

Any freedom, whether it be freedom of speech, or otherwise, carries with it responsibilities as well. When those who demand their right to freedom of speech do not also carry out that freedom in a responsible manner - eg publishing lies and attacking others who do not have the resources to reply and defend their position - then that is when restrictions and controls need to be put in place. As I/S pointed out - there were some blatent examples of the abuse of freedom of speech in the run up to the last election. Controls do need to be put in place to ensure that all who wish to be involved can be equally heard.
That is what freedom of speech really means! Not who can shout the loudest, but ensuring that all who wish to put their point of view can be equally well heard, and are EQUALLY FREE to do so.


Posted by Anonymous : 4/14/2007 08:15:00 PM

If you've spent election campaigns in other countries, where polling day itself is a flurry of political and media activity, all illegal here, then you will realize that we already impose numerous restrictions on freedom of speech. Is our system the best? Debatable. But I think we would object to UN observers telling us our elections were not free and fair, because our laws differ from those overseas.

There are many different versions of the democratic process, and we all know it's about finding a workable balance. Appeals to absolute "freedoms" are meaningless, really.


Posted by Anonymous : 4/14/2007 08:39:00 PM

Shame on you I/S. The bill of rights is unequivocal in its support of freedom of speech. In fact reading it a few minutes ago it would seem that existing limits on election spending are in breach.

You either have the freedom or you dont. These proposals are corrupt. They will entrench existing major parties. they are seeking to use taxpayer money to tilt a currently reasonably level playing field. Taxes fund unions and unions fund Labour. Perot tried to buy the US elecion and failed. The EB had a negative impact on National votes.

People have the right to a free vote. They have the right to eat in McDonalds or not. You patronise them when you presume they are incapable of making up their own minds. Look at Russia. That is the slope Labour are heading down.

Shame on you

Posted by sagenz : 4/14/2007 09:45:00 PM

Taxes don't fund unions - they never have and they never will! Unions are funded by union members contributions - payed from the members wages.

Nobody here is denying freedom of speech - NOT EVEN YOURS!

Posted by Macro : 4/14/2007 10:00:00 PM

"You either have the freedom or you dont."

Thanks for ignoring my post, which disproves yours. So when does the campaign against the existing restrictions start?


Posted by Anonymous : 4/14/2007 10:14:00 PM

Some might say free speech is all about the national front member who wants to deny the holocaust, the Libertarian who wants to use his money to tell the world his arguments for no government, the NZ first supporter who wants to have advertising regarding problems with immigration or the communist who wants to protest about the ills of capitalism.

But maybe we want to say that you can deny the holocaust - but not over a loud speaker, you can argue against the existence of government -- but not if it costs too much money, you can put up TV adds against immigration -- as long as it is not during election time and you can protest capitalism -- as long as it doesn't disturb shoppers.

Posted by Anonymous : 4/14/2007 11:37:00 PM

If you haven't already read it, Freakonomics by Steven Levitt includes some interesting and surprising analysis on the effects of electoral spending in the US. He concludes spending has less effect than people generally attribute to it. That's not an argument from me for ignoring it, just a plug for the read.

Posted by Anonymous : 4/15/2007 02:20:00 AM


Do you really have such contempt for the average New Zealand voter that you think restrictions of a fundamental human right (free speech) are justified?

Out of curiosity, where do you sit on the debate over voluntary euthanasia? Do you think books on the topic like the one recently banned in Australia should be banned in New Zealand?

What about holocaust denial? Should those lunatics who think it didn't happen be allowed to say as much in public? Or should they be clapped in irons?

I'd like to see how consistent you are on the issue of free speech.

Posted by Duncan Bayne : 4/15/2007 02:37:00 AM

It does apear that "ability to get money" has a huge influence on who the candidate will be. Ie that the fact that people EXPECT money to matter means that it does.

Posted by Anonymous : 4/15/2007 08:29:00 AM

I'm worried about unintended consequences of this new bill .... one of the great things about the status quo is that it's hard to buy TV time ... instead politicians who want to get name/face recognition have to actually do something important in the real world -= and then they get on TV, but not on their own terms, instead they're required to actually answer hard questions .... contrast this with the US-style TV campaigns where message is so carefully managed no one ever says anything

Posted by Anonymous : 4/15/2007 09:41:00 AM

It is interesting to see how the "right to free speech" is becoming conflated with the "right to fill society with paid advertising in order to drown out any opposing opinion".

I don't see how free speech itself is in any way degraded by any campaign funding legislation; nothing of this prevents (for example) any member of the Exclusive Brethren making any comment whatsoever about any political issue of the day. (Such comment is only restricted by the usual laws of defamation, suppression orders etc.) It merely ensures that they do not dominate the media to the detriment of all others.

Posted by Anonymous : 4/15/2007 12:01:00 PM

Free speech does not equal "endless advertising."

I was to see parties and people elected on their policies and not on how well they can sell their "brand" in the voter marketplace.

What I don't want to see in politics is the McDonald's effect, where really, their food doesn't taste that great but they outsell everyone else because they have the marketing campaign of doom.

Posted by Muerk : 4/15/2007 12:55:00 PM

McDonalds provides a certain type of service. they are a large company with consistant quality so anyone who wants a 'burger' that tastes a certain way in any city they travel to, can go to the local store and buy it.

they then provide accountability for the group as a whole.

Subway is a bit like that as is burger king.

It would be a sad world if I had to eat stupid burgers wich sometiems have finger plasters in them from some tacky corner fast food place that doens't have to worry too much if I dont come back - because there are always more suckers out there.

Posted by Anonymous : 4/15/2007 01:50:00 PM

"Taxes don't fund unions - they never have and they never will! Unions are funded by union members contributions - payed from the members wages"

Unnions receive taxpyer money through the employment relations educatino contestable fund. Unless of course this isnt actually taxpayer funded???

Posted by Anonymous : 4/15/2007 02:17:00 PM

Yet again, Idiot, you resort to blatant hysteria and spin on behalf of the Labour Party. I'm saddened to see you do this, because I have often thought of you as being non-partisan.

But when you focus all your attention on unsubstantiated claims about the National Party, while refusing to acknowledge that the Labour Party received massive donations from foreign residents, foreign companies, and anonymous entities in the past; and that the unions have consistently conducted massive attack campaigns against National, on behalf and with the collusion of the Labour Party, then you undermine your own credibility.

Labour broke the spending rules massively at the last election. Three public authorities have determined this. No public authority has concluded that National broke the law. Labour has been responsible for electoral law for the last seven and a half years that it has been in government; it is only now that they have run out of cash that it is suddenly an issue for them.

Just face it, Idiot. Your concern about electoral law isn't about the integrity of the system at all, is it? You simply want the Labour Party to write the rules in its own favour, cutting off National's supply, so it can have an easier run at the next election.

For somebody who usually has an honest and principled view of constitutional issues, your endorsement for Labour's cheating, lying, and gerrymandering is disappointing.

Tell Labour to pay the fucking money they misspent back, and then we can have an honest discussion about campaign financing and expenditure.

Posted by Insolent Prick : 4/15/2007 04:07:00 PM

Unnions receive taxpyer money through the employment relations educatino contestable fund. Unless of course this isnt actually taxpayer funded???

"The Fund provides grants to support the development and delivery of ERE initiatives and courses that will help make our workplaces safer and more productive. The courses should be linked to the objectives of the Employment Relations Act or the Health and Safety in Employment Act or both, and may include:

* education initiatives to increase skills in and knowledge of employment relations matters, to improve relationships in the workplace and enable employers, employees and unions to deal with each other in good faith;
* specific training courses, approved under the Health and Safety Employment Act, for health and safety training representatives

Applications can be made by: a registered union; a union organisation; an employer; employers ' organisation; or any other provider recognised under the Education Act or by NZQA. If your organisation isn’t eligible you could work with an eligible organisation. That organisation should apply for the funding and take overall responsibility."

Oh! COME on!!! If that is all the tax payer funds for unions! Its about health and safety - SOMETHING the EMPLOYER should be funding actually! Another instance of the taxpayer, subsiding business actually. So all you greedies out there should be saying "yeah! yeah! give us more!"


Posted by Anonymous : 4/15/2007 05:35:00 PM

I think the difference is very simple people have a right to free speech, corporations don't - we tolerate thair excesses and sometimes get to regulate them

Sadly the US got a court ruling a 100 years or so back that defines a corporation as a person which explains a lot of their point of view and the excesses on this issue - we don't have to do the same - we can be different

Posted by Anonymous : 4/15/2007 05:48:00 PM

Yes there will always be certain evenly applied limitations in a free democracy. Which is the opposite of what is being proposed. The existing major parties have their incumbencies reinforced by taxpayer subsidy and protection against democratic competitive spending.

Imagine a new movement went out and raised $10 from every citizen to support their message. completely democratic. People back their opinion with a small amount of their own money.
Under these corrupt proposals they would not be able to spend that money getting their message across to the same level as the entrenched incumbents despite having much greater public support.

Disclosure is a much better solution. The existing laws worked. EB were identified and subjected to counter messages in a free media. Their money achieved nothing.

In the only example I can think of in NZ where money influenced an election Bob Jones and his New Zealand Party split the National vote and enabled the election of Labour in 1984. NZ is a freer and richer country as a consequence. In that instance the money spent resonated with the electorate.

If you want spending limits I/S then apply the same amount to everyone and legislate against government "informational" spending. These proposals prohibit any 3rd party from competing with govt spending and their subsidy. That is where they are corrupt. Not because there are limits. It is the selective application.

The idea that money can buy an election in New Zealand is nonsense, but not relevant. It is being used as a straw man to justify outrageous selective limits on free speech.

Re examine your conscience I/S and ask yourself whether it is democratic that only the incumbent is allowed to communicate with the electorate through paid media.

Posted by sagenz : 4/15/2007 08:20:00 PM

Sage: The bill of rights is unequivocal in its support of freedom of speech. In fact reading it a few minutes ago it would seem that existing limits on election spending are in breach.

Not so. I suggest you read section 7, and come back when you are capable of voicing an informed opinion on the subject.

Posted by Idiot/Savant : 4/16/2007 02:45:00 PM

Duncan: No, I don't have contempt for the people of New Zealand. In fact I'd say the opposite - it is people like you, who want to keep donations and influence secret, and who want to turn our democracy into a plutocracy, who have contempt for us.

Unlike you, I accept that advertising works. It's not perfect, its not guaranteed, but at the same time it confers an advantage (strangely, the people who buy advertising, including political parties, also accept this. Apparently Libertarians know better. I blame their wacky noncompatibalist version of free will). And we've seen this in New Zealand - the 1993 MMP referendum is widely taken to show that money doesn't win elections, but in fact it shows the opposite. Throwing money at MMP reduced an overwhelming lead to a very narrow one - which is why the extreme right in NZ (e.g. the BRT) suddenly became very keen on referenda.

If we want fair elections - those with a rough "equality of arms" among the participants, in which no party can simply buy themselves victory - then spending caps are justified. And if we want those spending caps to hold, some restrictions on third parties are justified. It really is that simple.

(As for my positions on other freedom of speech issues, I think you already know them, and if you don't then you're perfectly capable of using Google. But while I am fairly rabid on the subject, I am not a fundamentalist; I recognise that there are other values, and in some cases restrictions are justified to advance those values. This is one such case, where fredom of speech is restricted in order to advance democracy)

Posted by Idiot/Savant : 4/16/2007 02:54:00 PM

IP: I have often thought of you as being non-partisan.

Then you were greatly mistaken. I am partisan as hell - I have a very clear political agenda, and I blog to advance it. What I am not is a party political hack. This is not about Labour vs National; it is about our democracy, and whether we want the rich to be able to buy power.

The reason I am focusing my criticism on the National Party is because they oppose any moves to improve the system. And it is very easy to see why: they benefit greatly from the current lack of transparency, and grossly exploited loopholes in the law to circumvent spending restrictions (and fairly clearly plan to do so again). This may not have been illegal, but it is sure as shit a challenge to the fundamentals of our democracy when a party explicitly sets out to buy its way into power. And if we want our democracy to remain meaningful, rather than just being a US-style cloak for plutocracy, then it has to be stopped.

(I should add: the reason for the government's backsliding over transparency is because they also benefit greatly from the present rules, and have a similar interest in hiding from the public the identities of the people who are pulling their strings. And we should not let them get away with it)

As for Labour, I believe I've expressed my view of their election activities here. They should have been prosecuted - as should National over their convenient GST "mistake". But the window for that has closed, and it is now time to reform the system to ensure that we don't see abuses like those we saw in 2005.

Posted by Idiot/Savant : 4/16/2007 03:12:00 PM

Sage: Imagine a new movement went out and raised $10 from every citizen to support their message. completely democratic. People back their opinion with a small amount of their own money. Under these corrupt proposals they would not be able to spend that money getting their message across to the same level as the entrenched incumbents despite having much greater public support.

Wrong. If they're running candidates, then they're subject to exactly the same overall spending limit as any other party ($1 million plus $20,000 per electorate contested). They'd get screwed over by the broadcasting rules, but I think we all agree that they are unfair and protect incumbents.

If OTOH they're not running candidates, then under the scenario you outline, all their communications would be exempt as communications with members. And in less extreme scenarios, the exemption actively encourages exactly the sort of mass participation political movement you are suggesting - and if the right want to "get around" the limits by signing people up for such an organisation so they can receive targeted advertising in election year, then all power to them.

Posted by Idiot/Savant : 4/16/2007 03:37:00 PM

So, you don't think it will be possible to establish sufficient state funding of parties to make restrictions on private funding unnecessary?

Buying policies requires 2 willing actors: the parties must be willing to change their policy to gain financial support, and a commercial/private actor that is willing to pay to see policies implemented. Guaranteeing parts of parties' income will lower the marginal benefit for such behaviour on both sides.

I'm assuming that we all a agree that private funding is a potential problem only to the extent that they successfully influence parties' policies....

Posted by Testener : 4/16/2007 08:06:00 PM