Hard News by Russell Brown


Rethinking the EFA

Phil Goff has let it be known that he, personally, wasn't really comfortable with the "final wording" of the Electoral Finance Act, and would be keen to work with the National-led government on a new or amended law. So how should a fresh crack at electoral law look?

The Herald wades in this morning on its pet project, keeping with the caring, sharing spirit of the times by dialling down its language on the subject from hysterical to only mildly hysterical. It declares the fulfilment of its own predictions, that the law had "a chilling effect on discussion of public issues, led to court challenges and generally dampened political advocacy."

But it seems oddly short of specific examples of Attacks On Democracy, and, ironically, the 'Democracy under attack' sidebar accompanying the editorial online lists only two stories, both about Rodney Hide's yellow jacket -- which, amusingly, only came before the Electoral Commission because it was reported by one of Rodney's own looser units, the excitable Andrew Moore.

That the drafting of the EFA was an embarrassment is no secret. But it would seem prudent, now that a real-world experiment has been conducted, to identify actual harms -- and sort teething troubles from fundamental flaws -- rather than continue to tub-thump on the basis of philosophy.

I'm not clear on what we missed that would ordinarily have been part of a campaign, and it seems to me that more failures have been laid at the feet of the EFA than is strictly credible. On the Media7 election special, Linda Clark declared that she had only had one pamphlet in her letterbox in Ohariu-Belmont, and this was surely the fault of the EFA. Laila Harre pointed out that parties were not newly constrained from campaigning for themselves in this fashion, and the lack of paper in the letterbox was far more likely to be related the the dynamic of that electorate. Deborah Coddington said people had been terrified of the complexity of the spending rules.

This puzzles me a bit. If you assume that everything that's not editorial is an advertisement -- and that is certainly one of the controversial elements of the law -- then it's fairly straightforward. If you spend up to $12,000, you need do nothing but include a promoter address on your ads. If you intend to spend more, you fill in this very simple form, which is little more than some name and address fields. Your limit as a "third party" in the campaign is $120,000. You file a return: I'm not sure if this is more complicated than the form.

Family First registered as a third party, along with several unions and the Free Speech Coalition and two or three dozen others. The Sensible Sentencing Trust got in a snit and didn't.

So what was the upshot? I got the usual party material in the post, but there were no mysterious leaflets muttering dark warnings about the Green Party or immigrants. There were fewer third-party newspaper advertisements. And there may have been a chilling of advocacy from people or groups uncertain about the application of the law.

There was a low turnout in this election, but it would be drawing a long bow to say that this was a direct consequence of the EFA, rather than, say, disillusioned Labour voters staying home, or an uninspiring campaign.

The Herald's fixes are thus: it wants the review of electoral law now "in the hands of publicly funded academics" (in context, it would appear the paper does not have a high opinion of "academics" and their fancy book-learnin') to be halted along with the Greens' "people's assembly", and suggests that the Law Commission be the nucleus of a process embracing the Electoral Commission, Human Rights Commission and Law Society and public submissions.

Fine idea.

The editorial continues:

The restricted period should not be the entire election year, the law should set far higher advertising spending limits for citizens in relation to incumbent political parties, removing the onerous obligations for registration with the state and it should eliminate all secret funding of parties. Broader changes to state-funded broadcasting and use of parliamentary funds must also be considered.

Only then will the chill be lifted, the stain on our democratic freedoms be removed.

Some of which I would happily agree with. But, as it has all along, the Herald skips over the reason the EFA was mooted in the first place. There is little point in making all party funding transparent if opaque surrogate organisations can spend the same money without having to declare a thing. There is still a place for regulation of third-party campaigning, even if the definition of what constitutes campaigning for a party needs paring back. And how any cap or oversight could be applied without the "onerous" filling in of a registration form isn't clear to me.

I suspect the reality to be addressed lies somewhere in the expanse between the Herald's plucky democratic everyman and Labour's Brethren-and-big-business bogeyman. And if those tasked with rethinking the law look carefully enough, I expect they'll find it.

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