This is why they can't have nice things

Did Labour set up an overseas intern scheme in order to evade the limit on political party election expenses? No ... no it did not.

Earlier this year I bought the book Shattered: Inside Hillary Clinton's Doomed Campaign for my Dad. Here's how one reviewer opens his account of that account:

The mantra for the Clinton campaign was “we’re not allowed to have nice things.” Many staff joked that the campaign seemed to be cursed, whenever anything good happened, some brand new disaster flew in from offscreen, preventing Clinton from gaining any sense of momentum and ultimately leading to her defeat in November.

I can't help but think that there must have been a fair few within the NZ Labour Party ruefully sharing the same sentiment with each other over this week's Friday night drinks. After all, they finally seem to be landing some pretty heavy Todd Barclay-related blows on National generally and Bill English personally when Politik goes and trips them up with a messy story about young interns from overseas feeling mistreated and mislead.

On the actual substance of these two issues, I'm with Audrey Young. Labour's intern scheme looks to me like a botched attempt to import some Momentum into New Zealand. Poorly concieved and ineptly executed, yes. Opening the Party to accusations of policy hypocrisy, sure (even if Labour actually isn't proposing any changes to the working holiday visa programme that the interns apparently were told to apply for). So it's bad politics, baby.

But English's at-least-enablement of Todd Barclay's public denials of activity that was potentially criminal, along with a claim that a National Party Board member allegedly encouraged the alleged victim of the offending to withdraw her police complaint, is different in nature. Indeed, it smacks of the privilege of power, in which "our kind" could never really be thought to be acting in a criminal manner and police processes really aren't meant to apply to "folks like us". So, for instance, David Farrar reduces Barclay's alleged criminal behaviour (which we should note was grave enough to have Barclay automatically removed from Parliament upon conviction) to "a serious error of judgement".

Just an error of judgment, albeit "serious". Quite different to those terrible media types back in 2011 who "are not above the law, and do not get to decide which laws apply to them, and which do not."

However, in an effort to establish some equivalency between the intern saga and Barclay's travails, Farrar has gone looking for illegality (or, at least, legal evasion) in the former scheme. So today he asks his readers "was Labour trying to get around election spending laws?":

[W]hy was this Labour Party campaign pretending to be independent of Labour?

Presumably as a way to get around the electoral laws that restrict how much you can spend on a campaign.

If Campaign for Change phones 100,000 people to persuade them to vote Labour, then that is invisible advertising. It is not like a billboard or pamphlet which you can see has an authorization statement.

It's a nice try, but I don't think it really works. Here's why.

First of all, if the phone calls were election advertisements (and thus could count as an election expense), they require a promoter's statement regardless of whether they come from "Labour" or "Campaign for Change". 

Second, “the labour of any person that is provided free of charge by that person” is exempted from the definition of “advertising expenses” under s.3E. The value of having interns make 100,000 calls simply doesn’t count towards a party’s total “election expenses”.

But more importantly, let us accept that the phone calls made by those interns are in fact election ads that have the effect of promoting the Labour Party. In that case, s.204H(1) applies:

A person may publish or cause or permit to be published a party advertisement that may reasonably be regarded as encouraging or persuading voters to vote for a party only if the publication of the advertisement is authorised in writing by the party secretary

Publishing the ad (i.e. making the phone calls) without such authorisation is then an illegal practice under the Electoral Act. And if the Labour Party secretary gives written authorisation for the party advert to be published (i.e. the phone calls to be made), then any “advertising expenses” that are associated with the calls become “election expenses” for the Labour Party.

So setting up a parallel organisation to do advertising on behalf of the Labour Party simply won’t work to shift the spending off Labour’s books (as it were). Either the whole enterprise would be built on the back of an illegal practice (and I'm pretty sure even Labour wouldn't set up a criminal scheme that could so easily be detected), or the spending would have to be accounted for by the Labour Party anyway.

Finally, Labour actually doesn't need to shift any election spending off its books. In 2014 Labour spent $1,275,201.36 on election expenses, when its allowable maximum was some $2,915,700. And even if Labour’s fundraising has gone a bit better this election cycle, there still is no way it’ll be close to having the resources to enable it to spend up to the allowable maximum this time around.

Assuming someone did give some $100,000/$150,000/$270,000 towards this scheme (different figures have flown about, none of them confirmed), and assuming that all of that money counts as an “election expense” (which is at least somewhat questionable), Labour still wouldn’t be in any real danger of exceeding its overall spending cap. So exactly what would be gained by trying to shift this spending "off the books"?

So, no. If we're looking for the reason for designing the intern scheme in the way it was, avoiding campaign spending limits won't work.

Now, least I be accused of being a mere Labour Party shill (as if!), let me end on a last possibility. If money had been given directly to the Labour Party to run this scheme, it would be a donation that would have had to be declared publicly (and declared within 10 days of it being given). But if it isn’t given to the Labour Party, then it doesn’t need to be declared (as Graeme Edgeler already has pointed out here).

I have no idea whether avoiding disclosure actually was a motivating factor in designing the intern scheme as it was - but it's an at least plausible possibility in the way that evading campaign spending limits isn't. Awaiting Kiwiblog post in 5 ... 4 ... 3 ... .