Pundit member Hayden Wilson discusses why the Electoral Finance Act could make this election campaign the nastiest in New Zealand’s history.

Dancing Cossacks and the Exclusive Brethren notwithstanding, New Zealand’s election campaigns have never been known for particularly negative campaigning. We don’t do negative campaigns in the style of the United States, where attack campaigning, often through political action committees or 527 groups, is ever present.

Commentators have been suggesting for some time that the 2008 election campaign is likely to be one of the nastiest, and possibly most litigious, election campaigns in New Zealand’s history (Although that is a claim that has probably been made every election since 1853).

However, this time electoral law might actually encourage negative campaigning, particularly by third party groups. With all the ink that has been spent over the Electoral Finance Act and the way it was pushed through Parliament, surprisingly little has been said about the way the Act deals with the expenses of candidates and parties. However, one element of those rules actively encourages negative campaigning by third party groups.

Imagine I am a member of a third party that supports a particular policy position that is held by a party contesting the election. If I go out and promote advertisements supporting that policy in a way that ‘encourages or persuades, or appears to encourage or persuade’ you to vote for that party, then a number of things happen:

  • My party needs to register under the Act (if we intend to spend more than $12,000), appoint a financial agent and comply with the reporting requirements under the Act;
  • We need to get the permission of the financial agent of the party that the advertising could arguably support; and
  • The cost of that advertising must be included, not only in my third party’s returns (and therefore counted towards the $120,000 maximum that we can spend) but also in the financial returns of the party concerned.

The same restrictions apply to third party advertising that could arguably support a candidate rather than a party and, even worse, the maximum spending limits are much more restrictive for both - $4,000 for the third party and $20,000 total for each candidate.

But let's approach it from the other direction. Any campaign that can be expressed in a positive way (‘vote for X’) can equally be expressed in the negative (‘don’t vote for Y’). So if, rather than championing party X’s support for the policies I hold so dear, I castigate party Y for their failure to agree with me, what happens then?

Well, assuming that I want to spend over $12,000 (less than a full page ad in the major dailies) I still have to register under the Act. But if I do that and run an entirely negative campaign against Y, my spending doesn’t have to be included in X party’s election return, notwithstanding that it will likely have just as much effect as a positive campaign would have had.

There is some evidence of this already happening – EMA (Northern) launched newspaper advertising that was a (very) thinly disguised attack on Labour’s Kiwisaver changes and the CTU has been distributing dark warnings to its members about the prospect of a National government.

And a sophisticated party political campaign can make huge political mileage out of leveraging off exactly this kind of ‘surrogate negative’ campaigning. Using closely linked messages in their ‘official’ advertising, a party or a candidate can gain exactly the advantage from this sort of campaigning as if they had run the ads themselves, without the high risk of voter backlash for ‘going negative’. As an example, just see what Bush Snr and the National Security Political Action Committee did to Michael Dukakis with the ‘Willie Horton’ ads .

In an election showing every sign of being hotly contested, it is quite likely that the Dancing Cossacks will be holding a reunion gig soon on a television near you.

Hayden Wilson is a senior associate in the Government Relations team at Kensington Swan and joined Pundit this week.

Comments (5)

by Ian MacKay on October 01, 2008
Ian MacKay

Of course Hayden, it might cause political people to choose their shots very carefully and thus we will be spared the avalanche of material which would otherwise be consigned to the bin along with other flyers. There is a great deal of Blog activity where ideas facts and fancies are exchanged, probably with no change from entrenched positions. A huge change in the forum for sharing ideas, and very different from those soap-box or noisy hall meetings, and a long way from the EFA. Good fun though :)

by Hayden Wilson on October 01, 2008
Hayden Wilson

Ian, I'm not so sure that it will make people choose their shots any more carefully - perhaps it might make them aim more carefully (but if I'm right their aim will simply  be lower).  I doubt very much it will relieve the load on your average postie.

What I find particularly ironic about the EFA is that it was introduced in response to negative campaigning (Exclusive Brethren et al) and yet seems to encourage it.  That said, I am not wholly opposed to the Act.  It's not the policy approach I would have chosen, but parts of it (particularly around donations) are pretty good law - mostly those bits have been missed by the avalanche of commentary on the obvious contradictions and gaps in the Act. 

Still and all, I guess if it wasn't for those contradictions, people like me wouldn't have anything constructive to do in our day jobs.

by Tim Watkin on October 01, 2008
Tim Watkin

Your mention of the Bretherens is the first point that came to my mind, Hayden. The springboard for the EFA was a third party going aggressively negative, so you'd think that would be the first thing it would have dealt with. Sure, the secrecy element is largely gone, but the attack politics is still there. I just hope parties resist the temptation to start 'swift-boating' each other.

by Andrew Geddis on October 02, 2008
Andrew Geddis

Hayden is quite right about this issue. However, it should be noted that this "push to negativity" existed under the old Electoral Act 1993 ... it also required any advertising that promoted a party or candidate to be authorised by that party/candidate, thereby making it part of the party/candidate's overall expenses. That's why the Brethren campaigned against Labour/Greens and only in favour of generally "changing the Government". In fact, they shelved a leaflet that praised Don Brash after getting advice from the Chief Electoral Officer that this would require National's authorisation.

The requirement to get a party/candidate's agreement really is there to allow these actors a veto over "support" messages that might muddy their own campaigns ... so (for instance) Labour can veto a group wishing to conduct a leaflet campaign that says "Vote Labour for the Revolution", or a candidate can veto an individual who wants to say "Vote X and Jesus will Save you."
It's a protective measure for the "real" contestants at election time.

by Hayden Wilson on October 02, 2008
Hayden Wilson

Andrew - oddly under the old Act, authorised negative campaigning had to be included in the candidates expense return as well (s213(1)(c)) but there was no requirement for negative ads to be authorised.  My view was that the possibility of arguing that an ad was implicitly authorised (in the Willie Horton way) acted as a check on negativity.  That check has now gone, which seems strange given the avowed reasons for the EFA being needed.

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