New Zealand should fix its election date in law. Otherwise, John
Key needs to tell us when the 2011 election will be held ... and
soon
On Monday I had the pleasure (and I'm not being sarcastic here - it
genuinely was a pleasant experience) of talking to Parliament's
Electoral Legislation Committee for the best part of an hour about
the
bills to set up the 2011 referendum
on MMP and to reform campaign
funding practices.
I was speaking to my written submissions, which are available
here. A couple of the points that
I raised then caught some attention in the media. One was my
(probably futile)
recommendation that there be
spending caps on everyone wanting to campaign in relation to either
the referendum or the general election in 2011. The
other was my call for the
election date to be fixed in law.
With respect to this latter issue, what wasn't made so clear in
subsequent reports was the reasoning behind the suggestion. After
all, the question of when an election is held seems (on the face of
it) to have little to do with how much people can spend on
campaigning. So what gives?
In New Zealand, we traditionally have limited the amount that
candidates and (since 1995) political parties may spend on
advertising their campaigns in the 3 months prior to election day.
The Electoral Finance Act 2007 extended this "regulated period" out
to the beginning of the election year - as well as putting limits
on what so-called "third parties" (i.e. non-candidates or parties)
could spend on election advertising. But following the 2008
election, those new rules were quickly repealed by all the parties
in Parliament (except the Greens) - raising the question of what
rules we should have instead.
I've posted
previously on the Government's
initial proposals for change in this area. What wasn't included in
those proposals was any suggestion that the traditional 3 month
regulated period would be changed. But when the Bill entered the
House, it contained a
new clause proposing to change
the regulated period so as to prevent it from applying
retrospectively.
(Rather than try my own explanation of how it works, I'll just
pinch
David Farrar's: "The bill defines
the default day (with the regulated period starting the next day)
as three months before the latest possible date an election could
be called. If the PM announces an election date prior to the
default day, then the regulated period starts the day after the PMs
announcement, unless the announcement is made more than three
months before the election, in which case it is from three months
out.")
I can see why this change got made. The problem with applying a
three-month period of regulation pre-election day is that elections
in New Zealand often get called with less than three months notice,
meaning that advertising spending that took place before the
election was called suddenly gets deemed to be an "election
expense". In the past, political parties have been able to manage
this problem (as they have spending caps in the millions of
dollars), while candidates also have survived (albeit with a bit
more difficulty, given their quite tight $20,000 advertising
limits).
But as the new Bill proposes to require "third parties" to register
before spending more than $12,000 on election advertising, they
potentially could be stung by having their advertising spending
retrospectively deemed to be an election expense. For example,
let's say Forest and Bird spent $50,000 on urging the public to
pressure the Government not to mine National Parks a couple of
weeks before an early election was called. That spending
subsequently could be deemed to be an "election expense", and thus
Forest and Bird will have committed an offence by undertaking it
without registering with the Electoral Commission.
Furthermore, there are whispers that the regulation of
parliamentary funding finally is to be brought into line with the
regulation of general electoral spending - meaning that MPs could
find their routine use of things like their communication budgets
to communicate with their constituents suddenly get deemed an
"election expense".
So in order to avoid such unfair or unforeseeable consequences, the
regulated period will be made purely prospective in application.
All well and good ... except that it isn't. Here are the
problems.
First, where an election is held at the "usual" time in November,
the particular way that the regulated period is defined under the
current Bill will in practice lead to it becoming much shorter. So
candidates and political parties will be able to spend as much as
before on their campaign advertising, but over a shorter period of
time - which is the equivalent of substantially loosening the
spending controls on these participants.
I don't think that's what the Government intended. At least, I hope
it's not - because to do so would be contrary to the views of the
majority of people who submitted to the electoral finance reform
consultation process. And the problem can largely be fixed by
deeming "default day" to fall 2 years, 9 months after the last
election day (rather than 90 days before the "last possible day"
for an election). So if that were the only issue involved, it would
simply be a case of substituting a new definition.
But the bigger problem arises where an early election gets called
at relatively short notice (as happened in 2002 and 1984). Because
here the "regulated period" will start only when the election is
called - which in 2002 was 46 days before election day, and in 1984
was a mere 30 days in advance. Furthermore, the fact that only the
Prime Minister and his (or her) party knows when the election will
be called, and thus the regulated period begins, confers a
considerable potential advantage. The incumbent party could engage
in a swift, expensive advertising blitz, then call an early
election and thereby restrict how much the opposition can spend in
response (while still being able to spend up to the cap
itself).
Which is where the idea of fixing the election date in law comes
in. For if the election day was specified in advance for all to
see, with a fixed 90-day/3 month period of regulated spending
preceding it, then any partisan advantage would be nullified. And
why should the Prime Minister even have the effective power to
decide what day we get to vote on? (In formal terms
it is the Governor General who
dissolves Parliament and calls an election, but by
constitutional convention he or she only will do so on the advice
of the Prime Minister.) It seems more a hangover of practices past
than a rule that has good reasons to recommend it.
Furthermore, New Zealand law already places limits on when an
election may be held. Under the
Electoral Act 1993, s.139(1)(b) it has to be on a
Saturday. So why not go that extra step and say not only that
it must be a Saturday, but that it must be this particular
Saturday?
That, then, is the reason for raising the issue of fixed election
dates in the context of campaign finance reform. I happen to think
the idea is a good one in any case, for reasons much like Colin
James outlined
here. But given the concerns that
inevitably get created when the Government is proposing to change
our electoral finance laws in a way that might serve its own
interests - concerns we've had enough of after the whole Electoral
Finance Act 2007 saga - the reasons for fixing the election day
have just gotten much stronger.
Of course, there is another way that any suspicions could be put to
rest. If the Electoral Legislation Committee decides not to
recommend fixing the election date in law, and decides to stick
with a definition of the regulated period that begins with the
Prime Minister's announcement of the election date, then John Key
could end any fear that he intends gaming the system by announcing
the 2011 election date during the Bill's second reading debate.
That would trigger a regulated period beginning 90 days/3 months
before that date. And it would mean everyone would start that
campaign on an even footing.
Read more of Andrew Geddis' blogs at pundit.co.nz
