KEY POINTS:
Is democracy under attack from the Electoral Finance Bill, as the Herald's front page claimed on Monday?
Certainly, there are at least four valid reasons to be concerned about the way the Government proceeded with its proposed legislation.
First, the failure to consult with opposition parties before introducing the Bill to the House leaves it vulnerable to allegations of partisanship. Electoral law should not be, nor be seen to be, a vehicle for one party to gain an advantage over others.
Second, there was inadequate consideration of the Bill's effect on the individual rights affirmed in the New Zealand Bill of Rights Act. Consequently, the original measures introduced into the House contained what are now widely agreed to be excessive restrictions on free speech.
Third, by failing to address the problem of large, anonymous donations to political parties, the Bill ignored one of the most pressing problems with our electoral process. The fact it imposes significant restrictions on fundraising by all other electoral participants makes this basic failure even worse.
Finally, the failure to address problems with parliamentary and governmental advertising in a way that is consistent with the Bill's provisions raises legitimate concerns about incumbent advantage at election time.
We are yet to see whether Parliament's Justice and Electoral Committee can rectify these problems. Even if it can do so, such behind closed doors decision-making is not the best way to make law, especially when the ground rules for our electoral process are at stake.
However, if we put these issues to one side for a moment, I suggest that your basic attitude to the Bill's limiting of third party election speech largely will depend on what you mean by democracy.
In particular, do you think the ideal of democracy requires that individual citizens or groups be free to participate at election time to whatever extent they wish, including by spending money? Or, do you think democracy requires limits on such spending to safeguard individual participant equality?
A healthy, vibrant democracy depends upon the contribution of a wide variety of interested individuals and groups to the public discourse. Without such contributions, our public decision-making processes lose their basic legitimacy.
That is why freedom of speech is such a core value in our society, and why we should be worried about any measures that seek to limit that freedom.
However, even in a country the size of New Zealand, contributing to the public discourse can be a costly exercise. Newspapers do not give away space to advertisers. Printers do not produce pamphlets for nothing.
Simply put, free speech does not come free. Therefore, those with greater financial resources will be able to speak more often by virtue of that wealth, which may offend against values of participant equality.
Deciding how to strike the balance between the individual right to participate in the debate and the basic notions of equality that underpin our electoral process is difficult. It should not surprise us that reasonable, well-meaning people will (and do) disagree about this issue.
The values of liberty and equality are inherent in the concept of democracy; yet pull us in different directions. Keeping this fact in mind can help us see that not everyone who takes a different view on this issue to our own is an enemy of democracy, or has nefarious designs to undermine New Zealand's electoral system.
We also should remember that the issue of third party spending does not exist in a vacuum. It is rather a part of an overall system of regulating the conduct of election campaigns in New Zealand; along with the role money plays in these.
Our current rules place a range of restrictions on the use of money to try to bring about a particular result at election time. Using cash to bribe voters, or treat them to food and drink, has been unlawful since 1858. Individual candidates have faced limits on their total campaign expenses since 1895. Limits on political party election spending have existed since 1995.
No one can buy time on television or radio for partisan political purposes, unless they are using money specifically provided at election time through the broadcasting allocation.
Some may argue that these spending restrictions themselves are an affront to democracy. However, there is no widespread demand for their abolition. Most of us appear to accept the general principle that campaign spending by the primary electoral participants should be limited in order to prevent a grossly unfair contest.
If that is the case, then should we treat third parties differently? But, if we are to place limits on their participation, what should those limits be and how widely should they apply? The Election Finance Bill tries to grapple with these questions. While it is critical the MPs hear our views on them, we should make sure that we really know what it is we are discussing.
Which means we first need to consider the big, underlying question: what does democracy mean in New Zealand, and what democratic values are most important to us?
* Andrew Geddis is an Associate Professor, Faculty of Law, University of Otago. He is the author of Electoral Law in New Zealand: Practice and Policy.
