Wednesday, April 09, 2008

Does NZ First's FTA ad comply with the EFA?

When I saw New Zealand First's anti-FTA ad (The Inquiring Mind has a scan here), I immediately noticed the absence of a promoter statement and began wondering whether it complied with the Electoral Finance Act. It seems others have asked the same question. Unfortunately, I think Winston may not like the answer.

Section 5 of the Electoral Finance Act defines 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)

While targeted at a specific issue, the ad also lays out NZ First policy and encourages approval of it ("Don't you agree?"). As a result, I think a reasonable person would regard it as an encouragement to vote for NZ First. This means it requires a promoter statement, and NZ First has violated s63 (2) (a) of the Act. However, it doesn't necessarily mean it counts against NZ First's election expenses cap. In order to be an "election expense", an advertisement must be a "candidate activity" or a "party activity", both of which specifically exclude communications produced by MPs in the course of their duties. And no matter what you may think of NZ First's policy stance, only the Auditor-General would think that explaining your position and inviting feedback on them isn't part of an MP's job. So, it's an election advertisement, but one which doesn't actually "count". That doesn't let NZ First off the hook - election advertisements must comply with s63 - but it does go some way towards explaining why NZ First may have forgotten it.

(Why is the law so confusing? It's entirely the fault of the National Party. Originally, the EFA excluded MP's communications from the definition of election advertising. But National squealed and beat a dead pledge card some more, and got it removed. The net result is that we now have the absurdity of election advertisements which are not expenses, a lot of hassle, and a barrier to MP's doing their jobs properly. But National got some headlines, which is all they cared about. And OTOH, how hard is it really to include a promoter statement in all Parliamentary Services advertising?)

Given the breach isn't particularly consequential, I don't think the Electoral Commission will prosecute. Instead, they'll probably use it as further education to parties about what not to do. But the grace period for adapting to the new law will be running out soon, and parties had better get their act together.

Two other thoughts on this: firstly, I don't think the ad would be considered an election advertisement if it had come from a group other than a political party. It's almost a perfect issue ad, and without those party logos and their implicit "vote for me" message, it would probably be in the clear. Secondly, I don't think NZ First will care if it counts towards their spending cap. They've never even come close to spending their limit, and if their expenses last election are anything to go by, even if their entire Parliamentary allocation was classified as election advertising, they would still have at least half a million dollars headroom. However, such a ruling would hurt the larger parties, who spend as much as they legally can (or, in the case of last election, more). Having to count their MP's Parliamentary communications as election expenses would at the least severely restrict their ability to campaign, if not breach the spending limit well before the election. A person with an evil mind might want therefore to see whether these are election expenses, just to watch them squirm.

Correction: I had the impression that the original bill was clearer about the place of Parliamentary advertising, and that this was subsequently amended. I was flat-out wrong. The law is absurd because it was drafted that way in the first place. However, as pointed out in this article (about which more later), the government cannot amend it to fix the absurdity because of fears of a voter backlash (which would be whipped up by - you guessed it - the National Party).