University Lecturers on Electoral Finance Bill

Otago University lecturer Bryce Edwards blogs on the Jane Clifton column on the Electoral Finance Bill:

Jane Clifton’s political column in this week’s Listener is a must-read for anyone interested in determining whether the so-called undue influence of money in politics makes the Electoral Finance Bill necessary. Clifton puts forward a very similar case to my blog post on Political finance and inequality in NZ, which challenges the simplistic assumption that economic inequality in New Zealand translates directly to political inequality.

Clifton’s column is excellent as dispelling the myth that people can and do “buy” elections.  As Edwards notes:

Clifton is undoubtedly correct – the proponents of political finance ‘reform’ regard civil society as being so weak and unintelligent that it needs protecting from being duped. She says the reality is that voters aren’t particularly easily swayed by third party political advertising: ‘What is the average voter more likely to think, confronted with a full-page newspaper advertisement by a union group or a business lobby?’ She concludes that voters are likely to be neither interested nor swayed by such obvious biased advertising.

Clifton astutely points out that the use of the ‘Brethren fiasco’ has simply been about creating a ‘moral panic about a menace that will never flourish in this country’. She is also rightly suspicious of the idea that the state can ever fairly legislate against political inequality: ‘The trouble with trying to legislate to control electioneering is, it can’t be done without either curtailing someone’s rights, or giving someone else an unfair advantage.’

And to keep Bryce company, we also have Therese Arseneau, a lecturer at Canterbury University.  She focuses on the destruction of our constitutional conventions:

The headline in a major newspaper was startling: “Democracy under attack”. More surprising, the democracy in question was not in Pakistan or Fiji, but in New Zealand.

The attackers were not foreign or domestic terrorists, but a Labour-led parliamentary coalition of the willing, and the means of attack was the rather innocuous-sounding Electoral Finance Bill and its companion Appropriations Bill.

Technically, this is just an ordinary government bill requiring no special treatment, but the importance of its subject matter, electoral law, makes it extraordinary.

Elections are the foundation of representative democracy. This foundation is supported on the bedrock of political equality and popular control.

Elections give the voter an equal say, not in decision-making, but in electing the decision-makers. Elections are also when elected representatives are held to account by the people they represent.

Elections in New Zealand have an added importance. Unlike in most other modern democracies, our Parliament is sovereign. It does not share power with an upper house or state governments. It is not limited by an entrenched constitution or Bill of Rights enforced by the courts using judicial review.

Popular control through triennial general elections is the only formal check on New Zealand’s Parliament. This necessitates a higher bar for making New Zealand’s electoral law.

Modern international best practice for dealing with fundamental electoral or constitutional reform spotlights the legitimacy of the process. Best practice requires a process that meets three tests: some measure of political neutrality, transparency, and substantive public input at a formative stage of the law-making process.

The process used for the Electoral Finance Bill has not adequately met these tests. Partisan politics have pervaded the process, thus failing the first and perhaps most important of these tests. Consultations on the bill before its introduction to Parliament were accessed on a partisan basis: Government allies were consulted, but opposition parties were not.

Before MMP, there was bipartisan agreement in Parliament that significant electoral change should have a cross-party parliamentary consensus that straddled both sides of the House. Governments’ unbridled power was bridled by consensus.

The waning of this convention has created a legitimacy vacuum. Rather than seeking a genuine consensus, the Electoral Finance Bill negotiations resemble an American Congressional mark-up session – a series of trade-offs conducted in back rooms with admittance by invitation only.

This new approach lacks transparency and fails the second test of best practice.

The process has only partially met the third test of best practice. The submission process did invite public input; and the many changes recommended by the select committee may be offered as evidence of the public’s influence.

But the input was not as substantive as it should have been. It occurred too late in the piece. Instead of proactively shaping the broad parameters of election finance reform, the public was forced to react to a poorly drafted bill.

The Electoral Finance Bill has shaken the public’s confidence in the fairness of electoral law. A new and improved process is needed to rebuild the public’s trust, and a better process will produce better, more legitimate electoral law.

The substance of the Electoral Finance Bill is bad enough, but the process is far worse – it is what will do the long term damage to this country.  Even the Greens admit that the process used by Labour has been appalling.

They have introduced the worst of American style electoral gerrymandering into the NZ constitution.  I mean if National wins and repeals the EFB, why should National include Labour in the replacement law at all?  Why shouldn’t National do to Labour exactly what Labour has done and write a partisan biased law in secret which has only one aim – to screw over its critics and opponents?

I mean how would this be for a replacement law:

• Scrap the taxpayer funded broadcasting budget
• Ban all advertising from parliamentary budgets
• Increase the spending limits to $10 million
• Ban Owen Glenn from donating (by changing the foreign exclusion to include non resident citizens)
• Make it illegal for money to be donated from an organisation affiliated to a political party
• Require each individual union member to tick whether or not they want some of their fees to go to a political party, and only those who tick have the stated proportion paid

Now I am not advocating the above laws.  They would be grossly unfair.  But this is what you could get if National played as dirty as Labour.  And all those who supported the Electoral Finance Bill would have no sympathy when they complain about the above.

Because once Labour have got away with such a partisan rewrite of the electoral laws, the incentive is increased for others to do the same.