Consensus kills most meaningful electoral finance reform

February 16th, 2010 at 11:26 am by David Farrar

Simon Power has announced the Government’s electoral finance reform package:

The Government has today announced its reform package for electoral finance laws.

Justice Minister says the decisions are the result of a thorough process.

“The package comes after extended consultation with all parliamentary parties and the public.

“As a result, Cabinet has decided to progress reforms only where there is broad public and political support.

“If we are to have a system which is fair, workable, enduring, and in place before the 2011 election, broad consensus is essential.”

Sadly, this means that many good reforms are not occurring. I will detail these below. There are some useful changes, but I am frustrated that some really stupid parts of the law are remaining.

However I have great sympathy for the need to have broad support for the electoral law, so that changes to electoral law do not become the ultimate prize of the victor, trying to skew the playing field to keep them in power (as Labour did with the ).

Effectively Simon Power (and Cabinet) has given Labour a veto over major reforms. I don’t like the outcomes this has led to, but do think it is generally the right thing to do, to not force changes through which don’t have widespread support.

It is the polar opposite of what Labour, the Greens and NZ First did with the Electoral Finance Act.

The Cabinet paper is here. Major aspects are:

  1. Parallel campaigners who spend more than $12,000 must register with the Electoral Commission, but there is no spending limits of such campaigners.
  2. Spending limits for parties and candidates to be inflation adjusted for future elections, but no increase to compensate for the lack of such adjustments since 1993.
  3. The definition of an election advertisement will exempt personal political opinions on the Internet
  4. One does not have to use your home address on election advertisements
  5. The Electoral Commission can give advisory opinions on the legality of proposed advertisements
  6. A new requirement that parties disclose all their income from donations in bands, including those below the disclosure threshold
  7. Include an associated persons test to make it harder to do what NZ First did, and not disclose donations as they were from seperate companies, even though they had the same owner.
  8. No change to the regulated period or the broadcasting regime.
  9. A proposal to align parliamentary and electoral advertising rules

My thoughts on the changes are as follows:

  1. A pretty major win with no limit for parallel campaigners. It is not that I want third parties spending huge amounts of money for or against a party (the unions tend to be the biggest spenders) but that it is wrong for MPs to legislate to restrict the amount of criticism that can be advertised against them. Also the public are quite capable of forming their own views about very expensive campaigns.
  2. The lack of any change to the broadcasting regime is hugely disappointing. It is quite simply wrong that parties can not purchase their own advertising on radio or television, and also that effetively the major parties get a higher overall spending limit than smaller parties.  I also think it is wrong that current parties in Parliament get so much of the broadcasting allocation. Labour and the Greens refused to back change here, so the Government did not proceed.
  3. I am rather pleased with the decision to have further transparency with donations, by having disclosure in bands of all income. I proposed this at both stages of the review as it will give the public a more accurate picture of a party’s funding. It will be interesting to see under the OIA who else, if anyone, proposed this.
  4. The associated persons test for donations is very much needed to prevent what NZ First did.
  5. The lack of an increase to party and (especially) candidate spending limits is regrettable as they are too low, and prevent candidates from being able to do even basic communications such as direct mail. Even the Green Party supported retrospective inflation adjustments back to 1993, but Labour did not support this, so it did not proceed.
  6. While it is good the length of the regulated period has not increased from three months, I am astonished they did not go for a fixed start date of 1 August to avoid the current problem of candidates not knowing when the regulated period starts until they are halfway through it. I will be interested to discover under the OIA why this change did not occur. As far as I can tell from the Cabinet paper it may have been technical problems with snap elections.
  7. Allowing the Electoral Commission to issue advisory opinions on advertisements is very welcome. It should be difficult to breach the law.
  8. Also very sensible to allow a non-home address on advertisements so long as one can still contact the identified promoter.
  9. There is a proposal that Parliament ban use of parliamentary funds, during the regulated period, on any publicity material that can be deemed electioneering under the . I strongly support this and proposed such an action. Outside the regulated period only material which explicitly calls for votes (or members or money) is banned, but during the regulated period anything which even appears to encourage support for a party or candidate will not be able to be funded by the taxpayers.

I back the change package as announced, and will submit on them. My criticism is about the changes not made. Hopefully over time a consensus can be gained to do further reform.

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28 Responses to “Consensus kills most meaningful electoral finance reform”

  1. Graeme Edgeler (3,267 comments) says:

    The absence of any change to the Broadcasting Act is appalling. It is by far the area of our electoral regulation most in need of reform.

    [DPF: I agree. It is a pity Labour and the Greens opposed changes. Maybe they will change their mind at select committee, but I doubt it]

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  2. m@tt (587 comments) says:

    They won, we lost, let’s do lunch

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  3. Nick (1,068 comments) says:

    True Graeme, especially in the light of the Alliance decision just released.

    It is appalling that in a so-called western democracy political parties cannot spend their own m oney on TV and Radio advertising. I just cannot get that one.

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  4. Graeme Edgeler (3,267 comments) says:

    [DPF: I agree. It is a pity Labour and the Greens opposed changes.

    Having read the cabinet paper now, I’m prepared to lay a lot of blame on National too.

    Alongside this, any significant reform of the broadcast allocation will require substantial amendment of Part 6 of the Broadcasting Act 1989, and possibly its entire repeal and replacement with new bespoke provisions in the Electoral Act 1993. This would raise questions about whether the existing prohibition on campaign advertising by the general public on radio and television is a justifiable limit of the right to freedom of expression under the New Zealand Bill of Rights Act 1990.

    Translation for non-lawyers:

    We recognise that the current ban on individuals putting political ads, on TV and radio or even running political advocacy slots on access radio is unreasonable and unfair. It breaches the Bill of Rights and is not justifiable in a free democracy. However, this ban was passed in 1989 before the Bill of Rights was law in New Zealand. If we were to amend other bits of the Broadcasting Act now, we might have to re-enact this prohibition, and this would result in the Attorney-General telling everyone that the National Government doesn’t like free-speech, and is ignoring the fundamental human rights of all New Zealanders.

    We don’t want him to say that, so if we make no changes to the Broadcasting allocation, we can avoid facing the reality that we’re unreasonable limiting New Zealanders’ freedom of speech, which we’re aware of now, but don’t want to do anything about.

    Nice.

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  5. Nigel Kearney (864 comments) says:

    Not letting political parties spend their own money on TV and Radio advertising is wrong. But not letting private citizens do so is such a gross violation of human rights that no decent person could vote for it. National should be ashamed of themselves, but I’ll bet they’re not.

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  6. Bevan (3,965 comments) says:

    I dont get it Greame, from your ‘translation’ I take it you want National to mess up and have the Attorney General jump up and down saying National are ignoring the fundamental Human Rights of New Zealanders????

    Wouldn’t you rather they didnt do that and instead changed the laws that need to be changed without falling victim to unintended consequences?

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  7. Nicholas O'Kane (168 comments) says:

    Sadly it is in Nationals interest to leave the Broadcasting Act unchanged as it gets the most money under the current regime, and avoids having competitors like ACT spend up big to change it.

    Also sadly missing was changes to the “protected” donations regime of hiding money by sending it through the electoral commission.

    [DPF: National submitted in favour of change. The problem is the decision not to proceed with changes that had significant opposition from other parties]

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  8. Graeme Edgeler (3,267 comments) says:

    I want them to change the law around the broadcasting allocation, but using the fact a different section of the Broadcasting Act already breaches the Bill of Rights, and that changing the allocation might mean that the problems with the different section would be pointed out to them by the Attorney-General, as a reason not to change the allocation is appalling.

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  9. Nick (1,068 comments) says:

    I bet the Act would be changed in a heartbeat if it was doing wrong to Tariana Turia and her party. I mean if it’s fundamentally wrong to disallow Maori to their right in court, then surely it’s also fundamentally wrong to disallow “ordinary” New Zealanders their right to say something on TV or Radio?

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  10. GJ (329 comments) says:

    Surely everyone that is brave enough to stand for Parliament, either as a candidate for a Political Party or as an Independent should have the same right and funding to promote themselves as those they will be competing against. How else are they expected to get their message out?

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  11. Whaleoil (766 comments) says:

    I think also that Broadcasting allocation should only be available to parties outside of parliament

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  12. Chris Diack (723 comments) says:

    Mr Edgeler nails it completely above.

    That para in the Cabinet Paper about any new Broadcasting allocation not passing muster under NZBORA leaped out at me.

    Of course Part 6 of the Broadcasting Act was amended to include radio in 1995 post NZBORA in a stitch up between Labour and National.

    So both Labour and National have form on this stuff.

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  13. Bevan (3,965 comments) says:

    Surely everyone that is brave enough to stand for Parliament, either as a candidate for a Political Party or as an Independent should have the same right and funding to promote themselves as those they will be competing against. How else are they expected to get their message out?

    I take it you mean state funding? Or how else would everyone get the same. If so, would you support the National Front and Socialist Aotearoa getting the same as National and Labour?

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  14. Chris Diack (723 comments) says:

    [DPF: National submitted in favour of change. The problem is the decision not to proceed with changes that had significant opposition from other parties]

    So the Nats were prepared to move on the broadcasting allocation (probably in small part due its own GST problems with the allocation scheme) in the most mildest form of reform (still get to pocket the $1mill of taxpayers money) however it scuttled back into alignment with Labour (the old two party deal).

    The fact is the mildest reform proposal would pass in Parliament.

    An attempt to undo it by a future Labour led Government would face significant NZBORA problems.

    And all of this when the Electoral Commission repeatedly tells Parliament that the allocation system is serious flawed.

    The test is surely not what Labour will except but rather what the best public policy.

    Its really pretty poor.

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  15. David Farrar (1,855 comments) says:

    Chris: It is not an entirely bad thing that the Government tries to have consensus around the electoral laws. However in this case it has resulted in a bad outcome with the broadcasting allocation and regulations. I am pretty gutted myself that they did not at least go for the moderate reform option.

    The challenge is how to argue for a change, but to accept that generally consensus is a good thing with electoral law. I think the way to do it is to point out that the degree of self interest with the broadcasting allocations is so great, they should pay less attention to the parties’s positions, and more to the public submissions.

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  16. Barnsley Bill (975 comments) says:

    FFS. You people are missing the single most important aspect of this issue.
    They are still mugging us for their advertising. It is a disgrace that political parties are allowed to pick our pockets to advertise themselves.
    Whining about tv ads misses the point completely. Let them buy as much as they want, but stop the public funding.
    This is situation normal and bugger all difference to how it was before Clark got her testicles knotted and tried to “Iranise” the election process prior to 2008.
    The only people jumping for joy are the union paymasters of the Labour Party. This greenlights their massive spend up each election.

    [DPF: Parties will stlll get broadcasting money, but one of the reforms is that a pledge card during an election campaign would not be allowed to be funded from Parliament]

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  17. Chris Diack (723 comments) says:

    DPF “Chris: It is not an entirely bad thing that the Government tries to have consensus around the electoral laws.”

    I never said it was. All I said that having consensus does not trump bad public policy.

    The Broadcasting allocation system is bad public policy even the Commission that administers it says so – and they have no particular axe to grind. A real Minister of Justice and MOJ would simply do the right thing and push liberalisation so its more consistent with the NZBORA. Its time.

    And if consensus effectively means agreement between National and Labour then, of course they will both agree that each of them gets a million each or two thirds of the total allocation between them. Why wouldn’t they agree to that! While keeping ever other New Zealander off the radio and tv for the ENTIRE three years. Its a perfect scheme in incumbancy protection.

    Its actually a racket. And as I said National and Labour have form on this particular little racket. The Power consensus in this context simply equals naked self interest.

    The bigger question is why National actually embarked on this process in the first place – why not simply restore the law as it was and not waste everyone’s time.

    What is fascinating is that none of the circulated documents stated explicitly that a “consensus” was required on every single aspect of reform for any progress to be made. Nor did it define the terms of this consensus – although the first document did erronously assert that it had previously existed.

    Had they done so Labour would have opposed all potential reforms instead of merely the most pressing ones.

    In that sense Power has in my view essentially changed the rules after the process has begun. Why attempt improving public policy in this area at all under these circumstances.

    It would be interesting to see how much time he personally committed to getting his “consensus”.

    We also have a problem that a Power consensus it seems to simply be the number of submissions to the process (and on that basis the same will be for any Parliamentary select committee hearing on any Bill). Is that how one measures consensus?

    It’s not really the quantity of views it’s the quality of the analysis surely?

    And on the quality front both the cabinet paper and documents circulated for this process were substandard.

    As I said Labour would have found it EFA like impossible to re introduce a Part 6 of the Broadcasting Act on steroids had the Government proceeded with its ever so modest reform proposal. Basic freedoms restored wont be lost a second time without a hubbub. But Power blinked.

    The stuff regarding parallel campaign is a joke. How that’s defined (includes reference to issues?) or merely limited to express negative campaigning will be telling. Do they intend to keep the prohabition of positive campaigning for example. What is the rationale for that now that one is proposing a registration system. And are they criminalising non registeration “crimes” ?

    National has opened the door to future Labour led regulation of non candidate and non registered party speech. Rest asurred they won’t practice Power style consensus in the future just as they have not done so in the immediate past.

    All in all Power gets a fail mark from me. One cannot blame a lack of leadership and direction on Labour.

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  18. Graeme Edgeler (3,267 comments) says:

    one of the reforms is that a pledge card during an election campaign would not be allowed to be funded from Parliament

    Unless it was printed before the regulated period, or invoiced after it…

    :-)

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  19. Johnboy (14,973 comments) says:

    Unless it was printed before the regulated period, or invoiced after it…or had a photo of the party Leader that bore no resemblence whatsoever to said Leaders real visage. :)

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  20. burt (7,807 comments) says:

    That Labour agree to this when in opposition compared to what they gave themselves when in govt is very telling about their intentions with the EFA.

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  21. tvb (4,203 comments) says:

    The technical problems with snap elections can be dealt with. The regulated period can start from 1 August in election year. As for snap elections which occur very rarely – we have had 3 over the last 50 years the regulated period can start from the date the election is announced. Any spending prior to that can be ignored. The effects of this needs to be thought through but the problem with having uncertainly for the start date for the regulated period is a far greater issue.

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  22. Chris Diack (723 comments) says:

    Tvb:

    No.

    According to the Cabinet paper an early election causes drafting problems. A New Parliament elected outside the time Parliaments are normally elected may not last until 1 August in 3yrs time.

    Regarding gaming, save a loss of confidence, only the biggest party in Government would know about the likely timing of an early election.

    In most of the options early elections still result in retrospective re characterisation of expenditure. If expenditure is only prospectively covered from an announcement this too is an invitation to game.

    In truth the retrospective re characterisation of expenditure in the current regime is only really problem with unrealistically low caps. Fix the caps and there is no problem.

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  23. burt (7,807 comments) says:

    Chris Diack

    In truth the retrospective re characterisation of expenditure in the current regime is only really problem with unrealistically low caps.

    Low caps set by themselves, ignored by themselves, retrospectively validated by themselves = dictatorship.

    Not acceptable – stop making excuses for the blatant disregard for law that is shown by self serving muppets who want to win at any price but are too scared to face voter backlash by doing it openly.

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  24. Chris Diack (723 comments) says:

    Burt…… muppet.

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  25. Graeme Edgeler (3,267 comments) says:

    burt – Labour’s overspending at the 2005 election was not retrospectively validated.

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  26. burt (7,807 comments) says:

    Graeme Edgeler

    Yes I forgot, it’s wasn’t an overspend it was a bad call by the ref and what’s more others were doing it too so it would not have been fair to let a court decide if the law had been broken.

    Chris – sorry to not join you being an opologist for self serving above the law behaviour.

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  27. Graeme Edgeler (3,267 comments) says:

    Burt – It was definitely an overspend. And others were not doing that You are confusing Labour’s mis-spending of parliamentary money, with its overspending on the election (breaching the spending limit).

    Labour’s mis-spending was validated. Its overspending remained unpunished because of police incompetence, not because of retrospective legislation.

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  28. burt (7,807 comments) says:

    Graeme Edgeler

    Cheers, my key point to Chris [I-love-corruption-in-govt] Diack was that saying the limits are too low is head in the sand stuff. Who set the limits ? Who knew the rules ? Who didn’t like following the rules ? (Hint for Chris: Only one answer is required to covers all 3 questions)

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