The same law for MPs Bill

A new Bill proposes that incumbents shouldn't be able to use public funding to pay for their election ads. Surely that's cause for celebration?

Over at No Right Turn, Idiot Savant castigates National for its hypocrisy in introducing a Bill to limit what MPs and political parties can use their publicly funded parliamentary entitlements for at election time. His charge is that the proposed legislation merely replicates the rules adopted by Labour following the 2005 "pledge card" inbroglio and subsequent critical Auditor-General's report - rules that National at the time damned as "one law for the politicians, and another law for everyone else", and "load[ing] the dice in favour of incumbent MPs."

I think he's wrong.

To see why, let's take a quick trip down memory lane. The taxpayer shells out a lot of money - $140 million annually - to pay for the full range of activities involved in representing the voters in Parliament. Much of that money goes on actually running the institutional aspects of Parliament, as well as things like MP's staff, electorate offices and (of course) salaries. And some of that money is spent on MPs travelling domestically or internationally ... as the media excitedly discovers every now and then.

What came to the fore in the 2005 election campaign is the money parliamentary parties and MPs can spend on communicating with the electorate: either to tell constituents what their representatives have been (or will be) up to; or to ask constituents what they are thinking. Shortly before polling day, Labour used a chunk of its money to distribute the infamous "pledge card" to voters, informing them of its proposed policies for the next parliamentary term.

Although this expenditure got signed off by the Parliamentary Service, and various parties had engaged in similar spending at the 2005 and previous elections, the Auditor-General subsequently determined that it was in breach of the (somewhat complex) legal rules governing the use of parliamentary funds. (The Electoral Commission also considered it an "election expense" that Labour should have counted towards its overall limited advertising spend for the campaign ... but hadn't.) Whether the Auditor-General's determination was correct as a matter of law - it never got tested in court - it probably was right as a matter of policy. Parties and candidates already in Parliament just shouldn't be allowed to use the funding given to them for the purpose of representing the public to try and convince that public to reelect them.

Following the Auditor-General's intervention, Parliament stepped in to try and tidy away the mess. It "retrospectively validated" the 2005 election spending (i.e. deemed it to have been legal) and also enacted new (albeit temporary) rules to restrict how parliamentary funding can be used to communicate with voters. Those rules (which National rolled over in 2009) prohibited the use of parliamentary funds at any time for "electioneering", which meant:

any communication that explicitly—

(a) seeks support for the election of a particular person or people; or

(b) seeks support for the casting of a party vote for a particular political party or political parties; or

(c) encourages any person to become a member of a particular political party or political parties; or

(d) solicits subscriptions or other financial support.

However, communications that don't carry such an explicit message could be paid for using parliamentary funds. Meaning that the rules entitled MPs and their parties to use their public cash for things like the pledge card - which, remember, never actually said "vote for Labour". While that spending might (but only might) constitute an "election expense" if carried out during the regulated period before an election, and hence might count towards the overall limited amount that parties or MPs can spend on their campaigns, it nevertheless constitutes a significant leg-up to incumbents.

So there remained a need to further tighten the rules on parliamentary funding to take away that incumbent advantage, whilst not tightening them so much that elected representatives are prevented from (or subsequently punished for) trying to talk with the voters. Which is where the proposed new Bill comes in. Not only would it prohibit the use of parliamentary funding for the existing "electioneering" purposes (expanded slightly to include spending on communications that explicitly seek a vote in a referendum), it also would stop the use of such money for:

"an election advertisement published during the regulated period in relation to a general election, regardless of whether all or any part of an expense in relation to the advertisement is incurred or paid before, during, or after the regulated period in relation to a general election."

In other words, if a communication looks like it is intended to persuade people to vote for or against any candidate or party (irrespective of whether it mentions any candidate or party by name), then parliamentary funding can't be used to pay for it during the regulated period prior to an election. That seems fair enough to me - while it is near impossible to separate out "partisan political" messages from "genuine parliamentary communications", incumbents shouldn't get what are in effect their election messages paid for by the taxpayer. (Although note: parties and MPs will still get the benefit of other forms of parliamentary funding during the campaign ... such as help from their staff and free travel).

So this is a fairly significant change - significant enough for me to deem Idiot Savant's judgment to be a little harsh on this particular issue. National has, as it promised to do, tightened the rules. But ... there's a but.

The ban on the use of parliamentary funds for "election advertising" only kicks in
with the start of the "regulated period". And, as I've posted on before, National is also proposing to change the definition of the "regulated period" in the Electoral (Finance and Advance Voting) Bill. One effect of that change would be to
begin the period with the PM's announcement of an early election.

Put these two pieces of legislation together, and what you could have is an incumbent party that uses its parliamentary funding to pay for a bunch of communications encouraging voters to support it - then promptly calls an early election, which would have the effect of preventing its rivals using their parliamentary funding on "election advertising" in response. Cynical, yes ... but I note that there's already some people expressing their suspicions that National intends gaming the rules in just this manner.

There is, of course, one very easy and simply way to dispell such cynical suggestions. Were John Key to do more than hint at next year's election date and formally announce what it will be, that would automatically trigger a regulated period beginning three months before the polling day. A date all the contestants - inside and outside Parliament alike - would know and could plan around.

So - what about it, National? So far you've done a pretty commendable job in legislating in the field of election law. Now why not top it off with one last, grand hurrah?