Clayton Cosgrove is in trouble for this. What do you think - should he be?
The nineteenth century US Senator and Republican Party manager, Mark Hanna, purportedly once claimed "There are two things that are important in politics. The first is money and I can't remember the second."
It's one of those clever-sounding quotes that get hauled out whenever some sort of political financing scandal breaks. Never mind that it may not be entirely true - or, at least, not entirely true in the New Zealand context. You could, for instance, let Ewen Macdonald raise as much money as he possibly can and then let him spend it on running for Parliament, safe in the knowledge that it will never make him a viable candidate for office (once he is released from jail and thus becomes eligible to stand, that is).
But while Hanna's statement may overegg things somewhat, it still contains an important insight. You simply can't run a political campaign of any sort without some money to pay for it. And unless you are independently wealthy - step forward, Colin Craig - you've got to get that money from somewhere. Which means that if you are a humble electorate candidate seeking to get elected, you have to hit up your supporters in the electorate and beyond for the cash to fund all the leaflets, hoardings and other forms of advertising that you'll use to try and remind the voters of your many, many good qualities.
This reliance on private sources to raise the money needed to pay for the path to Parliament then poses a pretty obvious potential problem. MPs possess a certain degree of public power that is not held by anyone else. They can grease the wheels of officialdom. They can put a word in the right ears. They can even make (or unmake) laws. All of which can have value for individuals or groups (be they companies, unions or otherwise) that have an interest in something that only government can give to them.
So, how can we know whether some person who is giving a candidate the money he or she needs to mount a successful campaign for office is doing so out of a true belief in the qualities that candidate possesses and the policies he or she espouses, as opposed to seeking to buy influence in the governmental realm? The short answer is, we can't. Only the donor knows why they are giving, and even they may not be entirely sure; or, at least, may have several motives for their generosity. After all, it is only human to believe that the person who may be best able to help you personally also is the person who is best suited to take part in running the country generally.
Therefore, because those pesky civil libertarians refuse to allow the SIS to apply electrodes to the sensitive spots of potential donors in an effort to uncover their true motivations, there are three layers of protection against the relationship between a donor and a potential MP decaying into outright corruption.
First, we have the criminal law (as Philip Field found out to his cost, albeit outside of the campaign financing arena). Under the Crimes Act 1961, s 103(1):
Every member of Parliament is liable to imprisonment for a term not exceeding 7 years who corruptly accepts or obtains, or agrees or offers to accept or attempts to obtain, any bribe for himself or any other person in respect of any act done or omitted, or to be done or omitted, by him in his capacity as a member of Parliament.
A "bribe" could include a campaign contribution, where this is specifically tied to some action (or omission) done in a candidate's capacity as a member of Parliament. And as the Supreme Court noted in its judgment on Philip Field's appeal, any connection between a "bribe" and some action (or omission) by an MP need not have been arranged before the MP's action (or omission). If the person paying the "bribe" does so out of gratitude to the MP for an action (or omission) already undertaken and the MP knows that this is the reason why the payment is being made, then it is an offence if the MP goes ahead and accepts it anyway.
So, then, direct, overt arrangements that tie a campaign donation to an MP's action (or ommission) are illegal and punishable by quite hefty spells in prison (as Philip Field found out). But, of course, these sorts of deals can be tricky to prove in the absence of one or the other parties spilling the beans on the deal (as, again, happened in Philip Field's case). To try and deter even the possibility of corrupt relationships between a donor and a potential MP, then, there is Justice Brandeis' old adage that "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."
New Zealand's attempt to disinfect the campaign fundraising process takes the form of the disclosure requirements in the Electoral Act 1993, s 209. Every electorate candidate must file a return with the Electoral Commission within 70 working days of the election setting out the identity of all donors who gave a donation of more than $1500 for use in that candidate's campaign for election (with an associated ban on receiving "anonymous" donations of more than $1500). Which then gives an insight into those individuals (or groups, be they companies, unions or otherwise) that are significant financial backers of each candidate - including those who are successful in winning election to Parliament.
Note one problem with this regime, though. Disclosure of donations only happens well after an election is over; the candidate returns from last November's election weren't due to Electoral Commission until 26 March this year. And note another - while disclosure to the Electoral Commission tells us who gave a candidate how much (as well as when they gave it), it doesn't tell us why they gave it or why a candidate accepted it. Even if a funding relationship is out in the open, the nature of that relationship may remain a legitimate cause of concern.
Which, in the end, brings us to a candidate's internal sense of political morality. That is to say, we rely to a large extent on candidates knowing that receiving donations from some private sources is not only wrong in itself, but if revealed to the public will be politically damaging to them personally and their party generally. And we expect candidates to show the appropriate wisdom to avoid not only overtly wrongful relationships (such as where a potential donor expressly offers to make a donation in exchange for the candidate's help), but also those which appear to be wrongful (such as where a reasonable observer may conclude that there is some connection between a donation and the candidate's past or future help). Because it is only by our prospective MPs avoiding the latter that we can be fully sure that they are not participating in the former.
How, then, does New Zealand's three-part response to the potential problem of political corruption by way of campaign funding apply to Clayton Cosgrove's current predicament? (I'm going to assume if you've made it this far into the post, you know what I'm talking about. If you don't, you can read all about it here.)
First of all, no-one is accusing Cosgrove of accepting a bribe from Independent Fisheries - at least, they are not doing so out loud. Both Cosgrove and the company adamently deny there was any connection between his introduction of a members bill that would financially help the company (as well as a number of other constituents) and its later decision to donate money to his campaign. Not only is this most probably true in fact, the dual denial means that there is no way of proving it to be false. And no-one is going to be silly enough to invite a defamation action by accusing Cosgrove and the company of overt corruption - at least, not unless they are judgment proof (i.e. a bankrupt blogger who I shall not name), or enjoy the privilege of parliamentary proceedings.
Second, Cosgrove quite rightly declared the $17,500 in donations to the Electoral Commission - from which we all then were able to find out about the relationship a couple of months ago. True, this action tells against any corrupt relationship existing in fact; you'd have to be a pretty silly (or incredibly brazen) person to openly tell the world that you've accepted a chunk of money which was paid to you in exchange for trying to get a change in the law. But the point of declaring donations is to let us make those sorts of judgments about what may or may not have been the motives on each side - if we were to say that simply declaring a donation automatically means that, ipso facto, there cannot be a corrupt intent behind it, then that would have a rather perverting effect on the disclosure regime!
Which brings us once again to the third level of protection. What does the decision to accept a considerable donation from a long-term friend whom you have, in your official capacity as an MP, taken steps to help in a quite significant fashion say about Cosgrove's internal sense of political morality? By this I mean, what does it say about his ability to scrutinise not only his own motives for taking the money, but also understand how taking that money would look to others? And here I mean not those political enemies who would like to see him taken down, but rather the "average voter" who is assessing the behaviour of her or his political masters? Is it a "good look" to them for an MP to be in this sort of relationship, even if all involve protest the purist of motives?
This, it seems to me, is the level on which Cosgrove's actions must be judged. No, the donations weren't illegal. Yes, they were fully decared as the law requires. But were Cosgrove's actions as an MP (and then a prospective MP) right, both in the sense of up to the moral standards we expect of our political leader and displaying the sort of political wisdom that is necessary in such leaders? Because, in the end, our system of government depends upon those involved in it complying with these standards just as much as their abiding by the law - which is why John Key's brushing off John Banks' attempt to conceal Kim Dotcom's donation from public disclosure with the claim that "there's quite a wide definition of ethics" was so disgraceful.
One last point. I note that Cosgrove is alleging that this story has been "shopped around" by Gerry Brownlee in an effort to distract from a court case being brought by Independent Fisheries against his use of CERA powers to rezone their land. That may well be true. And that case also may well reveal what some of us said from the outset - giving Brownlee or any other Minister extensive powers to override existing property rights and legal processes in order to "help Canterbury" carries considerable risks of their misuse.
However, the motives for drawing attention to Cosgrove's relationship with Independent Fisheries do not touch on its basic rightness or wrongness. Or, to put it another way, the problem isn't so much that people are noticing the donation to Cosgrove, but rather that the donation was given and accepted in the first place.