Law Society submission on electoral finance
The New Zealand Law Society has done a submission on the electoral finance review. I will do extracts below but it very strongly makes the point that the review assumes regulation is needed too oftne, when it has not defined what the problem is. This is a theme several submitters have made – any restriction on the right of citizens to get involved in the political process must be justified by pointing to actual harm done by not restricting those rights. Potential or imagined problems are not enough.
Their primary submission is:
that electoral finance law should not restrict the communication of political views nor engagement in political debate (including the opportunity to persuade others of the merits or otherwise of policy or candidate) unless there is an identified reason to do so; and the first step should be to identify the mischief that gives rise to the need to have electoral finance law. The next step is to design laws, including related structures or institutions, that effectively address the identified mischief. Laws that are ineffective or inappropriate (whether because they are too easily avoided or cast too wide) do not enhance the electoral system or the law.
They criticise the issue paper:
The Society considers that the Issues Paper and the wider debate around electoral finance law suffer from an inadequate definition of the problems or potential problems that the regulation of political activity seeks to remedy. Responses to questions about the content of regulation of political activity should be based on a comprehensive discussion and understanding of what the problems and potential problems of unregulated political activity are. A clear need to regulate should be identified.
They raise issues with the “fairness” principle:
Principle 1 is rather loaded. Fairness and equality are not the same. Some candidates will be better public speakers than others; that does not entitle some to presentation lessons, though they can buy them themselves if they wish. Independent candidates, or single issue parties may not get the same opportunities to explain policies and influence voters. Not every leader may be invited to a televised leaders debate?
This is similiar to the point I made in my submission. My example was it is proven in US presidential elections that shorter candidates do not get elected often. There are dozens of factors that can be regarded as unfair. It is trite to assume that money is the only factor that can cause “unfairness”, let alone that it must be regulated. My suggestion was the threshold for intervention should be “manifestly unfair” rather than just “unfair”.
Unidentified donations up to a total of $10,000 p.a. for each group of related persons or entities should be permitted but disclosure of the fact of them should be very soon after receipt.
They are saying the current disclosure threshold of $10,000 is adequate, but that disclosure should happen faster and related persons or entities be treated as one person. I agree with all of that. I advocate monthly disclosure of donations, and some sort of related persons and entities rule would prevent the scams we saw with NZ First where they got up multiple $10,000 donations from the same donor, but disclosed none of them as they were paid through different companies.
Should there be a prohibition on donations from certain sources (for example, overseas individuals, or corporate, or unincorporated entities)?
No. There are many anomalies at both corporate and individual level and it would be so easy to use local branches of overseas entities that the appropriate course is to allow the donations and publish if over the threshold.
I agree. Transparency is the key.
in addition to the rule that Parliamentary Service funding cannot be used for electioneering, funding for all communication services could be suspended during a period before an election. This period could begin the day after
the day that Parliament sits for the last time before polling day. Arguably, MPs do not need communication services funding during this time because almost all of their communication will be electioneering, paid for from their own campaign funds.
This is also in line with what I advocate. I actually think you suspend funding of communication services for the entire regulated period, but if that is too long, then at least for the period after the House last sits.
Moreover, this suspension of funding would better accord with the principle of equity by not giving incumbent MPs an advantage over other candidates for election. Incumbent MPs have an advantage as they can use public funding to communicate with their constituents. Even communication that is not electioneering helps to raise a candidate’s profile. Levelling the playing field for all candidates in the period immediately before polling day is desirable.
Agreed. But will the MPs? It is up to us to pressure them to do so.
If campaign broadcasting continues to be regulated in a similar way to how it is currently regulated, then parties who receive an allocation of time and money should be able to spend their own money on campaign broadcasting. The State should not determine a party’s ability to campaign using broadcasting through a government decision on how much time and money the party can use for broadcasting.
Absolutely. It is sad Labour is backing a regime that prevents smaller parties from using their own funds to get as much airtime as the larger parties get from the taxpayer.
The focus of electoral finance law should be on regulating the conduct of politicians (which is a reason why reform should be initiated by an inquiry that is independent of the political process), not the conduct of voters.
Excellent way of putting it.
There should not be regulation of negative or attack advertising, other than the requirement that advertising material disclose the identity of the person disseminating it and the law that regulates all forms of expression, such as the law of defamation. The law of defamation will often be able to deal with the spreading of false information.
However, there is still the potential for false information about candidates for election to be disseminated. False information in political debate can be damaging as it may adversely affect voters’ choice. Knowing the identity of the person disseminating material containing false information will allow candidates for election to deal with situations where false information is spread about them (Issues Paper, para 4.26). It can also be argued that the best test of truth is to allow different claims to be circulated in the free market place of ideas. Transparency is a necessary and sufficient requirement on negative or attack advertising.
The free market of idea is one I like.
July 18th, 2009 at 10:48 am
“The free market of idea is one I like.”
Yeah, but I like the free market on its own too. Which is why I continue to advocate for two essentially simple concepts that will clear this whole issue up in the most uncomplicated and effective way.
1) No taxpayers money used in election campaigns at all. Nada. Zip Zero. None.
2) No restrictions on what parties can spend on advertising.
Any advertising is subject to normal laws relating to defamation etc. So why the need for any legislation to control content at all???
This is all a sop to the left, who, because their policies are unpopular and therefore do not solicit much in the way of financial support from the public, (unless there’s a millionaire out there wanting a favour) have to steal from the public purse.
I am continually insulted and offended by politicians. I might tolerate their presence but in general I completely disdain them. I do not want one damn cent of my hard earned wages taken from me compulsorily and given to these useless bastards so they can soak us in propaganda and lies every election. Introduce more falsely justified legislation. Steal more of our money.
Its not as if anyone of them ever does much for liberty. Why should I be forced to give money to the election campaigns of a pack of bastards whose sole mission is to enslave me, and who never ever tell the truth????
Fuck em. Let them use their own damn money. Don’t help them with legislation to make it easier for them to tell lies and escape scrutiny. Open slather I say.
July 18th, 2009 at 10:53 am
The fundamental issue here is simple: when the state controls what people do with their property (including money) at election time it is a violation of property rights and therefore an illegitimate action by the state*.
Despite what the Wombles of Wellington think, regulation can never create “fairness and equality”. Those things are Socialist/Marxist fantasies and never occur in the real world.
* more on that here: http://kiwipolemicist.wordpress.com/2008/11/04/there-is-no-such-thing-as-human-rights-a-classical-liberal-perspective-on-the-electoral-finance-act/
http://kiwipolemicist.wordpress.com/2008/11/08/insane-rules-for-election-day/
July 18th, 2009 at 11:03 am
Defamation law put simply means that, if you have enough money to pay damages, you can say what you like. I am sure a number of groups would be prepared to chance their arm at defamation if it could swing a close run election, EB, Trucking Lobby, Sensible Sentencing, unions etc. Their needs to be some greater protection than defamation provides.
July 18th, 2009 at 11:08 am
“Their (sic) needs to be some greater protection than defamation provides.”
No there does not.
See. Opinons are easy.
I am a member of the public, and I am quite able to decide for myself. I do not need fake legislation aimed at ‘fairness’ which, as a poster pointed out above, is a childish unworkable fantasy. The kind of fantasy the left are well known for.
July 18th, 2009 at 11:51 am
David,
First, the suggestions that the “fairness” principle as currently stated could conceivably lead to restrictions or compensation in relation to candidate height, public speaking ability, etc are entirely silly. I suspect that the MoJ and the government do not take this line or argument at all seriously. It represents absurdist scaremongering designed as a stalking horse for an unduly laissez faire formulation of the principles.
Second, showing the “mischief” of unlimited contributions and advertising is not difficult. At a basic level, I hope you agree that elections should, in a democratic society, be won by the candidates / parties with the best ideas in the eyes of the population. Note that this formulation relies on the ideas themselves, not on the advertising of the ideas. Advertising works, as you know, and often creates imperfections in the transfer of the quality of ideas into votes. Next, you and I have agreed that there is a positive effect of candidate budget on vote share. (Although I acknowledge that we may disagree over how big the effect is, my read of your submission is that we agree there is a statistically significant effect.) The “mischief” arises because the best ideas do not necessarily attract the most contributions. There are two ways to attract contributions: (1) have good ideas; or (2) target your ideas, regardless of quality, at the people who have lots of money to contribute to political parties. Persuading those particular people does not necessarily make the ideas good ones. In the case of 2, the parties targeting the folk with the deep pockets gain advantage, through their increased advertising budget, even if their ideas are not actually better than their competitors’. In situations like this, unlimited contributions and advertising can cause a result where the team with the best ideas loses. And that is a significant “mischief” in the context of the democratic society I sketched at the start of the paragraph.
I briefly note two further points on this: (1) almost every democracy in the world agrees there is mischief in unlimited contributions and advertising; and (2) so do you, given your proposals for limits on political party spending.
Third, I note that I deal with your objection about regulating money but not regulating other stuff in my submission on this document.
[DPF: Rob - absolutely no one except you is raising the suggestion of height or public speaking ability restrictions. Do you really think that is what the Law Society is saying? Your problem is you think that raising an issue that can affect the "fairness" of an election means people are advocating it be regulated or restricted. That is your mindset, not most people's.
The point the Law Society is making, is that one should not fixate on money as the only factor that influences elections, as there are dozens of factors that have an influence. And the emperical evidence of recent elections is that money has a relatively modest impact.
Now like you, I am comfortable with some restrictions, such as party and candidate spending limits. But I want to avoid the mindset that an election is fair just because one has such spending limits, and would automatically be unfair without such limits.]
July 18th, 2009 at 12:12 pm
Rob, you’re a leftist. You do not care one jot for democracy. Your mission is to destroy it. Stop pretending otherwise.
July 18th, 2009 at 12:17 pm
Thank you for playing Reddie. I take each of your 6,848 comments most seriously.
July 18th, 2009 at 2:05 pm
An excellent submission by the Law Society. Where is the National Party submission DPF? Surely worth a post.
Rob:
“that elections should, in a democratic society, be won by the candidates / parties with the best ideas in the eyes of the population. Note that this formulation relies on the ideas themselves, not on the advertising of the ideas. Advertising works, as you know, and often creates imperfections in the transfer of the quality of ideas into votes.”
This statement is legally illiterate. The “value” itself whether it be money or effort isn’t the speech but the ability to apply value isabsolutely necessary for any real exercise of the freedom of expression.
Rob’s view is that the only virtuous speech that is worthy of protection is where one applies no value (other than personal effort) in giving it expression. This is not a distinction the law makes either here or in any other Anglo American democracy.
As I have said to him elsewhere his position is legally illiterate.
He really is simply dressing up the old prejudice that in elections money spent = votes gained. Whereas the actual evidence is that the relationship between spending and votes is much weaker than that.
The other thing I love is his assertion that he can objectively determine “good ideas” that don’t necessary attract financial support from presumably “bad ideas” that presumably rake in the dough. Again just prejudice dressed up as analysis.
It’s the contest of ideas that matter, that’s why one should favour freedom over too much regulation, since the regulation reduces the competition. Poor political advertising is best remedied by the contest not a rule.
July 18th, 2009 at 3:00 pm
David
On the first point, we agree. Any suggestion that, regardless of the precise formulation of the principles, anyone would attempt to regulate height or ability etc is silly. I keep telling you those suggestions are silly! But is is you, and the Law Society, who raise these red herrings as reasons why the current formulation is problematic, not me. If we can actually agree that nobody is going to get those rules passed regardless of the wording of the principles, then you have to concede that the spectres of those rules (which you continue to raise) do not actually represent any kind of a practical problem with the current wording.
I also agree with you that elections are not fair simply because there are spending limits. Limits are not a **sufficient** condition for fairness. I do, however, think they are a **necessary** condition. And your submission in favour of spending limits suggests that you agree.
July 18th, 2009 at 3:15 pm
Chris
The statement you call illiterate in this comment was not a legal statement at all, it was a philosophical statement. The words “in a democratic society” are usually a giveaway in this regard.
As for “Rob’s view is that the only virtuous speech that is worthy of protection is where one applies no value (other than personal effort) in giving it expression. This is not a distinction the law makes either here or in any other Anglo American democracy.” I make two points:
1. I know you have read my submission, and so you know for certain that my position is not the one you give here.
2. And the position that I actually take is very similar to that taken in at least one Anglo democracy, namely Canada. (In fact, my position is considerably more tolerant of free contributuons than Canada’s)
As I said above, my statement was a philosophical one. So I do not presume to know good ideas from bad ones, c ontrary to your insinuation. I simply state that there really are “good ideas” that the population really like out there, and “bad ones’ that they do not like. That is all.
Certainly I am against “too much regulation,” just like you. It is just that you and I do not agree over how much is “too much.” I believe that some regulation “structures” competition rather than “reducing” it. By a strictly Darwinian logic (which you appear to favour in political competition), the restriction that cricket bowlers have to deliver a cricket ball rather than a live grenade “reduces the competition” in cricket.
July 18th, 2009 at 4:01 pm
It would be great if there was no taxpayer funding allowed for the government to oppose a CIR.
July 18th, 2009 at 7:52 pm
Chuck it would also be great if there were no religious fundamentalist nutters in the world
July 18th, 2009 at 11:07 pm
It would be great if we had free speech and freedom of association especially during election times.
Free speech = unregulated speech though I don’t mind fraud being outlawed.
Freedom of association being we can join and/or fund any organization to say anything (again bearing in mind fraud and defamation laws may be applicable.
July 19th, 2009 at 12:56 am
I think this sums it up http://www.youtube.com/watch?v=koXLvSc5cfg
July 19th, 2009 at 1:15 am
Oh god here we go again.
Clearly the commies want to retain access to FREE union funded activity during election year hence the submission based on non-monetary good, monetary bad.
Right, wheres that height resticted game of cricket using live grenades….?
July 19th, 2009 at 8:56 am
Kapital, are you trying to imply those who oppose this attack on parental authority are religious fundamentalist nutters? That would be about 80% of the population.