I welcome Jim Evans' article, because I believe it – wittingly or otherwise – confirms the two major planks of my argument.
First, I argued the Auditor-General applied a definition of 'electioneering' that no-one involved in the Parliamentary party spending system (not the politicians who wrote the rules and sought to follow them, and not the bureaucrats who had administered the system) had ever understood to be in play.
Evans writes, 'The boundaries of parliamentary purposes have been progressively pushed by MP's and parties for some time back ... a similar pushing of boundaries may have taken place for some other expenditure, such as meetings held solely to discuss an election campaign.' Actually, there’s no evidence of MPs ‘pushing the boundaries’ – on the contrary, the Parliamentary political spending system, and the behaviour of political parties with respect advertising around election times, appears to have remained largely unchanged since 1989. The boundaries and the politicians’ behaviour didn’t change in 2005; the Auditor-General’s reaction to them did (changing from no discernable reaction, to a vigorous one).
Rather, where Evans sees pushing of boundaries 'for some time', I see a clear consensus among all political parties and the bureaucrats administering the system that everything but explicit vote-seeking or revenue-raising was okay. Evans might find this distasteful, but this practice over many election cycles illustrates that all political parties (who, after all, wrote the rules) understood a narrow definition of 'electioneering' was in play.
Fundamentally, Evans and I disagree about how to determine what the law was. Drawing on the Speaker’s directives, he points to the prohibition of spending on promotional material which is ‘for the purpose of supporting the election of any person or the casting of a party vote for any political party’. When considering whether something breaches this prohibition, I ask: ‘As the writers and followers of the directives in question, what test have political parties, the Speaker, and the Parliamentary Service used since 1989 in determining whether parliamentary advertising has an electioneering purpose, and does this fail that test?’ Evans and the Auditor-General ask: ‘Would a reasonable member of the public think this is electioneering?’ In general terms, I regard looking at the intent and understanding of those that wrote, followed and administered a rule a more robust legal approach than asking what 'a reasonable member of the public' might think. When interpreting what a particular law means, exploring Parliamentary intent is a valid method; I’m not sure that asking what the man on the street thinks is quite so valid.
While it is laudable that the Solicitor-General, the Auditor-General and Evans all wish to 'keep alive the difference between the activities of a member of Parliament as a Member of Parliament and the activities of a Member as a candidate', anyone who has worked in Parliament will know that the system is designed in such a way as to deliberately blur this distinction. Not surprisingly, MPs set themselves up a parliamentary funding system which gave them considerable benefits of incumbency. That might seem anti-democratic and immoral, but that's how the system was set up. The proper way to combat such anti-democratic conduct is not to brand it illegal, when those that devised the system clearly intended for it to be legal, but to seek changes to the system through public pressure.
As an aside, I find it curious that Evans is willing to defend the Auditor-General's approach whilst admitting to 'not know the character of each item' [deemed unlawful]. Alas, the devil is in this detail. Evans says he is 'inclined to think the [Green Party] newsletter may be okay, so long as it merely keeps the public informed of public issues'. Revealingly, something the Auditor-General has pinged the Greens for - regular Green Times newsletters - Evans thinks may be okay under the appropriation. Much of the other material that the parties were pinged for (especially that for which the Greens, United Future and NZ First were in the gun) was of a very similar nature to these newsletters Evans possibly approves of. This suggests even those who support Brady's man-on-the-street definition think he may have applied it erroneously. Indeed, even under Evans’ own definition of acceptable material – that which ‘merely keeps the public informed of the issues’ – much of what the Auditor-General deemed unlawful was in fact lawful.
Second, I argued that the Auditor-General's approach to 'electioneering' (and, by implication, 'parliamentary purposes'), if applied consistently across all areas of parliamentary party spending, would call into question hundreds of millions of dollars of spending over many election cycles. [I made this argument for two reasons: first, to illustrate that his interpretation was completely out of step with the practice of all political parties, and therefore could not have been what those who wrote the rules intended; second, to make the point that his report was highly selective in its treatment of election-related parliamentary party spending.]
Evans acknowledges the correctness of my argument when he writes 'things other than communicating done by an MP as a candidate are not covered by the appropriations and are therefore unlawful ... Payments out of public funds to a campaign specialist to run an election campaign seem highly dubious.'
This is indeed my point. Almost none of the Parliamentary party spending in the three months before an election is for 'parliamentary purposes' as Evans and the Auditor-General understand that term. Leaders flying to the election debates? The salaries of spin doctors feeding the media the party's daily talking points on the campaign issues of the day? The salaries of Richard Long and Bryan Sinclair advising Brash how to overcome his Brethren gaffes? Taking the approach Evans commends, all of this is 'highly dubious', as he himself seems to admit.
So, having both acknowledged that the Auditor-General's approach calls into question huge swathes of parliamentary public spending over many election cycles, Evans and I must then ask: Does it matters that he only looked at a small portion of that spending? I don’t know about Evans, but I think it does, because the consequences of the Auditor-General’s selectiveness are pernicious. His ruling pings parties (financially and politically) not according to how much they breached the appropriation but for how much they breached the appropriation in the small area the Auditor-General looked at.
To illustrate my point, let's take a look at how much Parliamentary money three parties had under 'party and member support' for the three months before the 2005 general election: Labour had $1.33m, National $0.90m, and Act $0.26m.* Of this money, the Auditor-General examined $1.16m for Labour (87%), $0.14m for National (15%), and $0.18m for Act (69%). So, the vast majority of Labour and Act's spending went under the stern gaze of the Auditor-General; only a small minority of National's did. This suggests the only reason National has come out of this smelling of roses is that the Auditor-General hasn't examined 85% of its expenditure in the campaign period. My educated guess is that, had the Auditor-General looked at all parliamentary party spending in the three months prior to the 2005 general election, National would also now be facing public outrage.
This matters, because if you believe (as the Auditor-General does) that widespread unlawful spending went on in the 2005 election campaign, then you should be examining it in a comprehensive manner, which looks into all possible avenues of sin (such as financing campaign operatives and MPs taking flights for campaign purposes), not just the one that has happened to come to your attention (the pledge card) or the stuff that happens to have an easy audit trail. Indeed, it seems the only reason Brady didn't look into non-advertising spending is that it would have been too difficult.
Evans argues the Auditor-General was 'scrupulously careful to be impartial'. I don't disagree that his report was carefully considered, and I think it's mendacious to suggest (as Labour has done) that he was somehow politically motivated in reaching the conclusions he did. But that he's an honourable man doesn't obscure the fact that Brady's work was, in this case, shoddy.
The fruits of his labour were anything but impartial. His report pinged parties for failing to follow principles they didn't understand to be in effect; and he didn't apply those principles consistently across all areas of parliamentary party spending. In the process, Brady let National escape his stern gaze, thus allowing it to claim a huge moral and political victory it did not deserve. That's many things. Courageous isn't one of them.
*I arrive at these figures by dividing the total 2004/5 and 2005/6 appropriation by eight - as two years divided by eight equals three months. While parties probably spend more of their appropriation just before an election than just after it, this holds for all parties, so isn't material.