Espiner on electoral law changes

February 17th, 2010 at 11:00 am by David Farrar

Colin Espiner writes:

Voters are set to be bombarded by record levels of advertising during the next election, after Government moves to relax some campaign spending rules.

Bzzzt. I really wish one would not treat an opinion as a fact. As no third party came close to spending the $120,000 limit last time, it does not follow that having no limit will lead to record levels of advertising.

In a big change to the former Electoral Finance Act, National is proposing to allow lobbyists, such as unions or special interest groups, to spend any amount during election campaigns – provided they register with the Electoral Commission and identify themselves in their advertisements.

I will make a prediction now. The vast majority of third party spending will be unions advertising against National. In Australia the unions spends ten times as much as any other groups.

The move could see a return to the sort of high-spending negative campaign run against the Greens by the Exclusive Brethren during the 2005 election. In addition, lobby groups will be able to advertise for as well as against political parties – raising the possibility of “back door” donations that get around the limits on what politicians can spend.

This is just plain incorrect. A third party can not advertise in support of a political party unless the party agrees, in which case the spending counts as part of the party’s spending under their limit.

You can not get around the spending limit for advertising in favour of a party, by having a third party do it.

But the advertising can only take place in non-broadcast media, after the Government decided to keep current limits on broadcasting during campaigns in place.

They are not limits. They are a ban. The ban incidentally is almost certain to be inconsistent with the Bill of Rights Act.

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33 Responses to “Espiner on electoral law changes”

  1. Graeme Edgeler (3,276 comments) says:

    Colin also states:

    There will also be no limit on how much can be spent by campaigners on the referendum on MMP, which will also take place at the next election.

    But the advertising can only take place in non-broadcast media, after the Government decided to keep current limits on broadcasting during campaigns in place.

    I believe this is incorrect. Pro-MMP and Anti-MMP campaigners will be permitted to purchase broadcast advertising (TV and radio) as part of their campaigns, as there are no plans to amend Part 6 of the Broadcasting Act, the prohibitions in which relate to election-related material, and material about political parties and candidates generally.

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  2. wreck1080 (3,800 comments) says:

    Colin Espiner is annoying in the way he reports his own opinions as a fact.

    Or, does he believe himself to be god? Perhaps.

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  3. dime (9,662 comments) says:

    This guy is a moron.

    [DPF: He is far from it. I think he provides some of the best analysis we get from the gallery. It doesn't mean that he gets it right 100% of the time though]

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  4. eszett (2,367 comments) says:

    This is just plain incorrect. A third party can not advertise in support of a political party unless the party agrees, in which case the spending counts as part of the party’s spending under their limit.

    You can not get around the spending limit for advertising in favour of a party, by having a third party do it.

    No, but you could advertise against a party or parties and dog-whistle to vote for another. Much like the Brethern did. Or like Unions, who are closely associated with Labor they actually do not need to openly endorse them.

    Unless you would force every political advertisement to endorse one or more parties. That way they would always count in the spending limit.

    I think it is worthwhile to discourage negative campaigning in general.

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  5. Adolf Fiinkensein (2,830 comments) says:

    Shit! Did he get anything right?

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  6. Graeme Edgeler (3,276 comments) says:

    I think it is worthwhile to discourage negative campaigning in general.

    There’s a difference between negative campaigning on policy and negative campaigning on personality.

    Most parties campaign in platitudes: Vote for a Brighter Future; Vote for Freedom; Vote for a Fair Share for all NZers, Vote for Me etc. I actually quite like being told what their real policies are. If the Greens are planning on introducing high carbon taxes, and National is planning on cutting the minimum wage then I want to know. And if they’re not going to tell me in their advertising, I’d quite like someone else to.

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  7. Guy Fawkes (702 comments) says:

    It really is time that binding legislation was passed that gave all Union Members the option of allowing their Union to provide funding for any Political Party.

    The assumption that all members in a Union wish to fund any Political Party at all is really contentious. The Tories in the UK are going to change the rules of engagement for Labour Party funding.

    Also the roundabout funding of Government gifting Unions ‘training grants’ from tax payer funds, only for a spookily similar amount of cash to find its way into Labour Party coffers.

    The Chicanery has to stop.

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  8. Chris Diack (723 comments) says:

    There is great irony in a journo complaining about multiple voices.

    The more political speech we have the better; voters can handle it. When exposed to dynamic robust political debate they process the information. Deny them the opportunity and they don’t develop the skill.

    I like voters getting together to hold political parties and candidates accountable. And bagging pols is part of our national character.

    Let’s apply Colin Espiner’s theory to his own industry.

    We cannot have multiple newpapers expressing different points of view. It would confuse newspaper consumers. There should be one paper privileged and all other voices limited to Xerox newsletters.

    Regarding non candidate and non registered party speech the only question is whether the spending caps incentivise it. Low spending caps results in the diversion of funds that would otherwise flow to political parties and candidates. That’s what we have now.

    Of course we don’t know whether the Select Committee will free up positive express advocacy. With the propose registration scheme there is no rationale for retaining the current requirement to get permission of the person or party you are seeking to praise before one does it.

    It would actually make for more natural and clearer non candidate and non party speech.

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  9. Manolo (13,516 comments) says:

    Espiner is a cheap journo and known Labour hack. A forgettable entity altogether, so do not waste time reading the rubbish he writes.

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  10. cespiner (3 comments) says:

    No need to get personal, everyone. But to reply to David’s points:

    1: There’s no doubt the rules have been relaxed. I guess David can legitimately say I don’t know for sure whether there’ll be more advertising or not, but I think it’s a fair conclusion to draw, given both the lack of spending controls and the ability to advertise for or against a political party. But I accept David’s point about drawing conclusions in news stories.

    2: David’s “predictions” are as valid as my assumptions, I guess. He might be right about unions spending more – although that certainly wasn’t the case in 2005, as we all know.

    3: I’m sorry David, but it’s you who is “plain incorrect”. You are quoting the current Electoral Act provisions relating to positive third-party advertising. I have triple-checked this with Simon Power’s office (have you?) and I have been told emphatically that there will be NO restrictions on positive third-party ads, and they WILL NOT count towards a party’s campaign spending limit.

    4: Limit/ban…aren’t we talking semantics here? Hardly worth responding to.

    Overall David (and contributers) if you’re going to have a crack at what I write, try getting your own facts straight first!

    Kind regards

    Colin

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  11. kowtow (7,928 comments) says:

    Yeah,throw in that bunch of anti Green ,raving lunatic ,fundamentalist ,right wing ,white ,hardworking ,tax paying, weirdo Christian sect as an example of how twisted funding is and you’ll win the argument every time . They’re the guys we love to hate and it keeps the issue nice and simple doesn’t it?

    How dare they try to stop those cuddly Greens from wrecking Aotearoa!!!!

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  12. David Farrar (1,871 comments) says:

    Colin: Thanks for responding. On the minor issue I prefer predictions to assumptions as you are being explicit it is a prediction.

    I have not checked with Simon Power’s office, but am doing so now. I will happily post an update if they are planning to allow positive advertising with no limits, as this is a major change to the law, and not one that anyone advocated for. It is also not mentioned at all in the Cabinet papers (unless I am missing something).

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  13. Chris Diack (723 comments) says:

    Colin Espiner gets credit for engaging here.

    Well well. He has broken a small story. Let’s hope the view of the staff of the office of Minister of Justice is actually reflected in the Bill. If they remove the restrictions on positive express advocacy by non candidates and non registered parties this is a very welcome development. It will make for much more balanced and natural non candidate and non registered party speech.

    Power deserves some real credit for this development. Not only is he restoring our pre EFA freedoms but for the general law of defamation and the requirement of an authorisation on election notices there has never been any regulation of negative express advocacy by non candidates and non registered parties in the past.

    On the larger point Colin might or might not be right. It really does depend not on freeing up non candidate and non party speech but rather the unrealistically low caps on candidate and party spending. Fix the caps, fix the broadcasting allocation system and there really isn’t a problem.

    The bigger point is this: can voters handle an increase in political debate. Of course.

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  14. Chris Diack (723 comments) says:

    “DPF: I will happily post an update if they are planning to allow positive advertising with no limits, as this is a major change to the law, and not one that anyone advocated for. It is also not mentioned at all in the Cabinet papers (unless I am missing something.”

    This is wrong. ACT New Zealand advocated for the removal of this. DPF is correct it is not clear from the Cabinet paper – I had assumed that the status quo would strangely remain even with the new registeration system for non candidate and non registered party speech.

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  15. Pete George (23,309 comments) says:

    The bigger point is this: can voters handle an increase in political debate.

    I think an interesting point is how effective (or ineffective) political advertising is anyway. Is it worth spending more?

    A risk is that an advertising campaign can easily have a reverse effect to that which was intended.

    Has anyone tried to measure:
    - how much if at all it persuades people to change their vote?
    - how much if at all it persuades people to vote?
    - how much if at all it discourages people from voting?

    I hardly if ever read anything that comes in the letterbox, or is advertised in newspapers. I regard most if not all hoardings as pointless political detritus. I avoid TV political speeches (advertising) unless I want a bit of entertainment. I don’t think advertising would sway my vote, I’d rather judge candidates a lot more deeply than advertising will ever provide. But I suspect I’m not an average advertising target.

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  16. Inventory2 (10,171 comments) says:

    The Exclusive Brethren members will not have to spend one red cent to alert voters to the dangers posed by the Greens. Red Russel Norman, Metiria Turei and Catherine Delahunty only have to open their mouths, and the horses will be scared enough to desert the Greens in droves. Ronald McDonald had better enjoy his 18 months on the public teat, as the Greens are headed for oblivion.

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  17. burt (8,022 comments) says:

    Pete George

    You raise an interesting point – the effectivness of political advertising. See when the EB were spending somewhere between $100,000-$1,000,000 (depending on who tells the story) it was an assault on democracy. But when Labour spent $800,000 it apparently made no difference to the outcome of the election.

    Of course the EB may have seen it the other way around but the EB didn’t break any laws so laws needed to be changed.

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  18. lastmanstanding (1,240 comments) says:

    The only problem I have and have always had was the transperancey and disclosure both basic principles of good governance.

    I campaigned and matched against the EFA. I have no problem with the amount an individual or a group can spend but i do have a problem if I dont get to know who they are

    Reason I want to know whose bought which policy enacted off which party,

    Lets not be coy here. Pollies are prostitutes I want to know how many pieces of silver it takes to buy them.

    Im not convinced the proposed legislation will ensure I and other good citizens will be able to determine the quantum and the source

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  19. Pete George (23,309 comments) says:

    Tactical voting is the best chance for the Greens, I agree that they will probably struggle to reach the threshold, for now at least they seem to me to be the weakest they have been.

    But it’s possible they will be given votes from those who don’t want National to have too big a majority, don’t think Labour have earned a vote, and know that the Green influence will probably minor at the most so it is a relatively safe protest or alternate vote.

    I’ll get the option of voting for Turei in her electorate, it will depend on the other candidates but I haven’t seen anywhere near enough from her yet for me to get enthusiastic about giving her a vote.

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  20. polemic (427 comments) says:

    Interesting Point that Colin Espiner has raised because it always seemed an anomaly in that true freedom of speech should allow you to openly and freely advertise with you own money both positively and negatively about any political party.

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  21. Pete George (23,309 comments) says:

    Burt, the EB advertising may well have been nett counter productive, more because of the secretive way they tried to do it rather than the message.

    I don’t mind how much anyone advertises, but I think it is paramount we know who is behind the advertising so we can judge the merits of the content. Transparency works both ways, or it should.

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  22. burt (8,022 comments) says:

    As another issue, is there actually anyone who thinks the politicians will respect the laws they pass to constrain themselves given their past behaviour ?

    Who guards the guards ?

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  23. burt (8,022 comments) says:

    Pete George

    I agree, I’m just pointing out the hypocrisy of uncontrolled spending being an assault on democracy when it is against the govt but “of no consequence” when done by the govt. The self serving above the law politicians can (and do) have it both ways.

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  24. JonathanO (1 comment) says:

    David said:

    “It is also not mentioned at all in the Cabinet papers (unless I am missing something).”

    Although I don’t think the issue is mentioned directly in the Cabinet paper (unless I have also missed it), it seems implicit from paragraph 75 of the Minister of Justice’s paper to the Cabinet Domestic Policy Committee that the restrictions on positive third-party advertisements will be retained (http://www.justice.govt.nz/policy-and-consultation/electoral/electoral-finance-reform/documents/EFR%20-%20Combined%20Cab%20paper%20and%20minutes.pdf):

    “This will effectively create a more transparent regime than under the status quo, where the only requirement is for parallel campaigners to place their name and address on an election advertisement and obtain written authorisation where advertising supports the election of a constituency candidate or political party. Instead there will also be a central point where the details of parallel campaigners could be readily accessed by the public and the media, making it easier for people to inquire into the identities of parallel campaigners.”

    I inferred from the word “also” that the requirement to register was an additional requirement and not regulation in place of the earlier rules. I await the confirmation that David has sought from Power’s office though.

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  25. freethinker (685 comments) says:

    burt (3929) Says:
    February 17th, 2010 at 1:07 pm
    Another reason for binding referenda – Pollie passes law – Pollie ignores same law- referenda remove Pollie without the need for lawyers/courts – QED.

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  26. AG (1,803 comments) says:

    DPF:

    “The ban incidentally is almost certain to be inconsistent with the Bill of Rights Act.”

    You say this like it is a bad thing, and a reason not to have it as our law. Fair enough.

    But given that Paul Quinn’s members bill to bar all prisoners from voting ALSO is “almost certain to be inconsistent with the Bill of Rights Act”, yet you think that this is a good idea that should be proceeded with, I am left a little confused. Is it a case of breaching rights bad when you don’t like the policy, but breaching rights good when you do?

    [DPF: I think something that impinges on the rights of all New Zealanders is less justified than something which impinges on criminals in prison]

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  27. AG (1,803 comments) says:

    [DPF: I think something that impinges on the rights of all New Zealanders is less justified than something which impinges on criminals in prison]

    Not the way the Bill of Rights Act works, though! Either something is a “demonstrably justified” limit, or it isn’t. Of course, the extent of/degree of infringement of a right is relevant to that test … a great infringement on a right requires much stronger forms of justification than does a minor one. But Paul Quinn’s bill involves the complete abrogation of a right – so you need very, very strong justifications for it. The limit on broadcasting involves the restriction of using one particular medium to spread a message – not a ban on the message itself … so the justification needn’t be that great.

    As it happens, I think both measures fail the NZBORA test … but the ban on broadcast advertising is a much more arguable one than a ban on all prisoners voting.

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  28. cespiner (3 comments) says:

    Graham Edgeler: Not sure if you caught Simon Power in the House this afternoon, but he confirmed that the current restrictions on broadcasting WOULD APPLY to all third-party campaigners. In other words, third-party campaigners WILL NOT be able to advertise on television or radio during the election campaign period, as stated in my story.

    Cheers

    Colin

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  29. Graeme Edgeler (3,276 comments) says:

    Colin – I didn’t catch it, and having just checked the Parliament website for Hansard (it’s not up there yet), will hold my views. We may be at cross purposes: I’m confident that the law will ban third party campaigners in election campaigners from TV and radio advertising (the current restrictions). I’m not confident that it will ban pro-MMP/anti-MMP campaigners from TV and Radio advertising:

    1. The current ban isn’t broad enough to prohibit private MMP ads;
    2. Extending the ban would seem to go against the desire of the government to avoid messing with Part 6 of the Broadcasting Act.

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  30. Graeme Edgeler (3,276 comments) says:

    Just re-checked. Hansard now appears to be there, I suspect I missed it first time ’round. I assume your reference is to the responses to the supplementaries for question 6. Election Spending—Political Party Cap:

    … In addition, a parallel campaign would be restricted by the fact that under the proposals, as they exist today, the parallel campaigner could still not advertise on television or radio.

    I do not read this as referring to MMP advertising campaigns, only third party election campaigns (e.g. “Vote to Change the Government”, “Vote for the Environment” etc.). Campaign material about MMP is not currently restricted by Part 6 of the Broadcasting Act, I don’t believe this indicates an intention to extend to limits.

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  31. Chris Diack (723 comments) says:

    Mr Edgeler is probably right. It will actually depend on the content of the MMP campaign ads.

    Section 70 of the Broadcasting Act 1989 prohibits paid election programmes year round not just those in proximity to a general election.

    Section 69 “election programme” means, subject to subsection (2), a programme that—
    (a) encourages or persuades or appears to encourage or persuade voters to vote for a political party or the election of any person at an election; or
    (b) encourages or persuades or appears to encourage or persuade voters not to vote for a political party or the election of any person at an election; or
    (c) advocates support for a candidate or for a political party; or
    (d) opposes a candidate or a political party; or
    (e) notifies meetings held or to be held in connection with an election

    The referendum is being held in conjunction with a general election. A general election is an “election” for the purposes of the BA89.

    Arguably therefore tv and radio advertisements advertising pre election meetings on MMP might be in trouble as they are connected with an election i.e. a referendum held in conjunction with a general election would arguably make the meeting one connected to an election.

    This will come as a shock to both the pro and anti MMP camps.

    Turning to the advocacy ads themselves, if one intended running an ad that said: “Don’t let National and Act steel the country: vote MMP” that might appear to encourage or persuade to either vote for or against National and Act. Probably out.

    Or

    “Feed Labour its Greens; vote no to MMP ” also probably out.

    And what about:

    “Send the politicans the message: dump MMP” Mmmm tricky.

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  32. Lutzie (63 comments) says:

    There can be no doubt that it would be much fairer if ALL political campaigns were publicly funded.
    This would stop National and ACT supporters stressing about the support that Labour gets from unions and would stop Labour, the Alliance and the Greens stressing about the large cheques doled out to National (and ACT) by scions of business and well-heeled matrons.

    The problem is simply how to set the level of spend for each party. By overall share of vote in the last election or the average of a few past ones? By seats won?

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  33. Guy Fawkes (702 comments) says:

    @6.51 Lutzie.

    The key test is willingness. There can be no problem for Union Members opting in to pay $5,10, 15, 20, ………. a week for their Union Executive to pass on to any Political Party it so chooses.

    Why should scions, or matrons be prevented from giving freely to something they believe in.

    Klark wanted Public funding, and frankly that is the only reason that I need to feel unsettled about tax-payers being on the hook any more than they are already. Political Parties are in effect co-operatives. The main beneficiaries are the Parliamentary element by enabling them to achieve well paid positions in Government.

    More sensible is to give moderate tax breaks to all contributions (ors), whether they be Entreprenuers, Union Members who have opted in on whatever class of contribution.

    There also needs to be aggressive planning to prevent overseas ‘Investment’ in any Political Party or Government. Whether by Ex Pats, Non Doms, or Foreign Benefactors.

    No to Tax Payer funding. A very big NO!

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