Monday, August 13, 2007

Election funding: fixing the bill

Since its introduction to the House three weeks ago, the government's Electoral Finance Bill has come under sustained attack due to its impact on freedom of expression. The Coalition for Open Government in particular have made a compelling case that the provisions limiting third-party campaigning go too far, pointing out both that they impose ludicrous limits on ordinary political advocacy, and that may even prevent political parties from announcing their positions to the public. These problems have been seized upon by the right as ammunition in their calls for the bill to be dumped.

Unlike people like DPF, though, I don't think that the bill should be incinerated. Rather, I think it should be fixed. And it seems to me that there is an easy way to do it. Many of the core problems stem from the bill's definition of an "election advertisement" as

any form of words or graphics, or both, that can reasonably be regarded as doing 1 or more of the following:

(i) encouraging or persuading voters to vote, or not to vote, for 1 or more specified parties or for 1 or more candidates or for any combination of such parties and candidates:

(ii) encouraging or persuading voters to vote, or not to vote, for a type of party or for a type of candidate that is described or indicated by reference to views, positions, or policies that are or are not held, taken, or pursued (whether or not the name of a party or the name of a candidate is stated):

(iii) taking a position on a proposition with which 1 or more parties or 1 or more candidates is associated.

Clause (i) is aimed at traditional political advertising - "vote for X". Clauses (ii) and (iii) are aimed at "issue advertising", which while it doesn't explicitly advocate voting for or against a particular party, does so implicitly by reference to a party's policies (for example, those infamous pamphlets from the Exclusive Brethren). The narrow concern here is that such advertising will be used by parties to bypass expenditure limits - a concern totally justified by the behaviour of the National Party exposed in The Hollow Men. The broader concern is that such advertising will "destabilize the balance of resources among candidates and political parties", undermining political equality and favouring parties which pursue agendas which favour (or at least don't threaten) the interests of the rich. But as Colin Feasby points out in his 2003 paper "Issue Advocacy and Third Parties in the United Kingdom and Canada" (McGill Law Journal, 48, 11 - 54), a distinction needs to be drawn between advertising of this sort, and advertising which merely seeks to set the political agenda rather than favouring any particular party (or, in the case of the NZ bill, advertising which doesn't really have any political purpose at all). The obvious point of distinction here is the attempt to influence voters - and both the British and Canadian electoral laws (which seem to have been the major influence on the bill) recognise this. For example, the UK Political Parties, Elections and Referendums Act 2000 defines "election material" as
material which can reasonably be regarded as intended to-

(a) promote or procure electoral success at any relevant election for-

(i) one or more particular registered parties,

(ii) one or more registered parties who advocate (or do not advocate) particular policies or who otherwise fall within a particular category of such parties, or

(iii) candidates who hold (or do not hold) particular opinions or who advocate (or do not advocate) particular policies or who otherwise fall within a particular category of candidates...

while the Canada Elections Act 2000 defines "election advertising" as
an advertising message that promotes or opposes a registered party or the election of a candidate, including one that takes a position on an issue with which a registered party or candidate is associated.

(Emphasis added)

This recognition is absent from clause (iii) of the proposed definition in the bill. However, inserting it would make clause (iii) essentially identical to clause (ii), so it may be easier simply to remove it entirely.