Is spending money on trying to affect how people vote a bad thing ... unless it's you who is doing the spending?

On my sabbatical year in Canada in 2006, I was introduced to a couple of truly great new (to me) things. One was chocolate porter as the ideal mid-winter tipple in a land of ice and snow. The second was Arrested Development, watched as a DVD box set in evening-long binge sessions. For those who've done likewise, you'll understand the reference made in this post's title. For those who haven't, this might help.

Anyway, the current case brought by the "Climate Voter" coalition, seeking a declaration that their website and associated advertising activities are not "election advertisements" under the Electoral Act, reminds me of that running gag. I'll get to my views on the particular legal point at issue in that case at the end of this post (so feel free to skip down to it, if that's all you're visiting here for), but first I want to recount why it represents an object lesson in why getting what you want actually can make you quite unhappy.

(I also note at the outset that, unsurpisingly to my regular readers, I sympathise greatly with the substantive position that the Climate Voter coalition is advocating - indeed, climate change policies will be one of the main determinants of my vote this election. If you think that fact taints the following analysis, then full disclosure has achieved its purpose.)

Once upon a time, back in 2005, there was a small group of wealthy individuals belonging to a religious sect. Their leader, based in Australia, decided that it was the duty of the sect members to use their wealth to try and effect social change at the ballot box (despite the members of the sect themselves being forbidden from voting). So, as good servants of their leader, they set out to do just that by running a range of newspaper ads, as well as printing and distributing to almost every household throughout New Zealand a range of election-related pamphlets at a total estimated cost of somewhere north of $800,000.

These messages explicitly encouraged voters not to vote for Labour or the Greens, and instead "vote for change" by supporting parties with policies such as lower taxation, etc. While they never expressly told anyone that they should instead vote for National (or, maybe, Act), they came pretty close to doing so - one pamphlet, for instance, had the slogan "vote for change" with a blue tick in a circle next to it. It's also worth remembering the context of that 2005 election. National was rejuvinated under Don Brash, who had brought with him a swag of conservative/rightwing policy positions. And up until the final count of special votes, it was not entirely clear whether he would carry National into Government, or whether Labour would be able to get a third term in office.

So in that different time and place, good lefty liberals throughout the nation were in agreement. This unprecedented flow of "big money" into our electoral process from these "third party" groups with the aim of electing a hardline, right wing government was an anti-democratic outrage that required immediate regulatory action to make sure it never happened again. The stage was thus set for the Electoral Finance Act 2007's passage into law, which for the first time imposed restrictions on the amount that "third party" individuals and groups could spend on "election advertising" in an election year.

Now, the particular restrictions included in that legislation were overly draconian. Also, the entire process by which the Electoral Finance Act was created and ushered through Parliament left much to be desired. Meaning that when National won government in 2008, it was able to repeal the bits of the Electoral Finance Act that dealt with "third party" spending with the support of all parties except the Greens (who thought the law just needed tweaking, not wholesale replacement). Simon Power then steered a replacement law through a public submissions process and multi-party parliamentary committee ... which ended up pretty much replicating the basic structure of the legislation it replaced. In particular, as I said at the time:

... the new legislation accepts the proposition that anyone who wishes to involve themselves in the election campaign with the aim of influencing the outcome of the vote ought to be subject to financial limits. So it doesn't matter if you are a political party, a candidate, an outraged individual, a pressure group or a labour/business organisation - if you want to tell people how they should vote come election day, then you should get a say ... but not too much of a say.

Which is where the Climate Voter coalition enter the picture. Because they've been told by the Electoral Commission that the website and associated material they have produced constitute an "election advertisement", and thus must comply with the regulatory restrictions contained in the Electoral Act. Whereupon it seems that at least some of the sorts of lefty liberals who previously were supportive of the idea of controlling the use of money to influence elections suddenly have decided that such laws are a grave impediment on free speech and must be resisted at all costs.

(I note that by no means all lefty liberal types are guilty of this changed stance. Idiot Savant and Micky Savage have both posted their view that the Climate Voter material should be covered by the rules on electoral advertising. By the same token, at least one high profile, right-of-center opponent of the very concept of limiting third party electoral speech seems remarkably content to advise Greenpeace and associated groups to just "follow the rules" and accept that their participation in electoral debates ought to be limited.)

Now, I know what those involved in Climate Voter will argue. They'll say that their message isn't the same as that of the Exclusive Brethren, in that they are a genuinely non-partisan group that wants only to inform voters of the various political parties stances on climate change issues, so that voters can decide for themselves how to cast their votes. And the law as passed in 2007 (then pretty much retained in 2010) was not intended to capture genuinely non-partisan issue messages that just happen to have some connection to an election. So the Climate Voter messages aren't the sort of problem that the law has been passed to deal with.

Well, maybe. As it happens, I was one of those who strongly argued back in 2007 that the (as it was then) Electoral Finance Bill ought to be amended so as to ensure genuinely non-partisan issue messages were not caught by it. The example I gave back then was an environmental group wanting to run a campaign during the pre-election period advocating for greater measures to protect the Hector's Dolphin, without mentioning the election at all. The mere fact that some parties may have policies that align with that group's call, while others don't, should not mean that the group's message is subject to regulation under the Electoral Act.

However, you also need to remember the sorts of messages that the Exclusive Brethren were running (insofar as these formed the architypal "problem" that needed fixing). A number of these purported to be simply "issue" based. They didn't mention any party at all, instead simply calling on people to "vote for change" because the particular issue in question was not being addressed adequately by those presently in power. So the mere fact that a message is put forwards as "just talking about the issues" does not mean it is not "election related" - as the Exclusive Brethren's case amply demonstrated.

And then look at what message the "Climate Voter" website carries:

Being a Climate Voter means you care about climate change and you want all political parties to do something about it. It means you want real action on climate change and you’re prepared to use your vote to get it. It says you support strategies to rapidly phase out fossil fuels and grow New Zealand’s clean energy and low-carbon potential.

It seems a bit disingenuous to say it "want[s] all political parties" to act on the issue. The fact is that the website identifies certain policy proposals ("strategies to rapidly phase out fossil fuels and grow New Zealand's clean energy and low-carbon potential") as being desirable, urges voters to "use your vote" to get these policies put in place, then probes the political parties as to how they will deliver on them. While in some idealised world all parties would rush to provide the policies that the Climate Voter group want, in the real world of differing ideologies and viewpoints, they won't. Some parties will do "better" on the identified metric than others, meaning that those who are "Climate Voters" ought to use their votes to support these parties ahead of others.

Consequently, no matter how genuinely meant, the claim that this message is "non partisan" seems completely implausible. And then consider how the Electoral Act actually defines an "election advertisement":

means an advertisement in any medium that may reasonably be regarded as encouraging or persuading voters to ... vote, or not to vote, for a type of party described or indicated by reference to views or positions that are, or are not, held or taken (whether or not the name of the party is stated)

I just can't, for the life of me, see how what the Climate Voters coalition are doing falls anywhere but smack in the middle of this definition. It doesn't matter that they are proclaiming themselves to be non-partisan, or are really only interested in the issues they are promoting. The fact is that they are urging people to judge parties based on those issues, and use their voting power to reward or punish them accordingly.

So does this conclusion mean that the Climate Voter coalition is effectively locked out of participating in this years election? Well, no. It can still do exactly what it is already doing, provided it meets these rules:

  • Places a "promoters statement" (the name and address of the person authorising the ad's publication) on all its election advertisements;
  • Generates and keeps invoices and receipts for all amounts of more than $50 that it spends on its election advertisements, to allow its spending to be verified;
  • If the coalition spends more than $12,300 on its ads before the election, it first must register with the Electoral Commission (which means it must fill out some paperwork and give the Commission the names of the people running it);
  • If the coalition spends more than $100,000 on election advertising, it must file a return of election expenses with the Commission after the election is over (and have this audited if the Commission requires it);
  • It can spend a maximum of $313,000 on its election advertising in the three months leading up to the September 20th election.

These demands may be a bit of a pain in the neck for the groups involved in the Climate Voter initiative. But before decrying them as a brutal assault on the very concept of free speech, consider this. A group of businesses come together to form the "New Zealanders for Free Trade" organisation. They go about running a large scale, well funded "public information" campaign to educate New Zealanders on the benefits of the Trans-Pacific Partnership, and to encourage such voters to use their ballot to reward parties that support this measure (while, of course, upholding a non-partisan front that claims that they want all parties to come to an agreement on the matter). What is more, because frame them in a way that doesn't "encourage or persuade or appears to encourage or persuade voters to vote for a political party or the election of any person at an election", they link their general campaign to a series of expensive, emotive and well-made television advertisements extolling the general virtues of free trade as an issue.

How prepared are you to accept the subsequent election of a majority National government as fair, legitimate and worthy of your respect? If that causes you any qualms at all ... well then, watch for what you wish for from the Climate Voter court case.

Comments (3)

by Simon Connell on July 16, 2014
Simon Connell

Climate Voter have kindly put a number of documents up on their website: their original letter to the Electoral Commission, the Commission's reply and their reply to the reply.

http://www.climatevoter.org.nz/high-court

The first is the most interesting as it gives us more on Greenpeace's arguments, including references to Hansard and the Select Committee Report to argue that "Section 3A of the Electoral Act 1993 was not intended to prevent issue advocacy". Also an attempt to invoke Freedom of Expression.

Possibly the most interesting argument is this (emphasis added):

"Even if the website would otherwise be caught by the definition of election advertisement, in our view the exception under section s 3A(2)(e) of the Electoral Act 1993 would apply to the website. In line with the decision of the High Court in Kirk v Electoral Commission [2008] 3 NZLR 125 the exception should include legal as well as natural persons."

s 3A(2)(3) excludes "any publication on the Internet, or other electronic medium, of personal political views by an individual who does not make or receive a payment in respect of the publication of those views" from being an election advertisement.

I'm guessing that this is aimed at letting Jo Blogger say whatever they want about political stuff without getting caught by the regulatory net. The use of "individual" rather than just "person" would support this. If that's the intention, it doesn't seem obvious that legal persons should also be able to avail themselves of this exception. Then again, there's always Citizens United...

by Rich on July 17, 2014
Rich

If (for instance) Kim Dotcom decided they really wanted to blow some money on NZ politics, he could call up Mr Tony O'Reilly, remind him that he owns some declining newspapers on the other side of the world and ask him how much he wants for them. Instant bully pulpit for whatever view he wants to put forth. AFAIK, newspapers have a sufficiently wide exemption that he could even print "The Herald votes Internet/MANA" on the front page and every newsstand.

He could even have a go at the perennially cash strapped Fairfax and Mediaworks and add almost all newspapers and most of our TV to the deal. Not sure if he'd get that one past the Commerce Commission, but he could have a go.

 

 

by Matthew Whitehead on July 18, 2014
Matthew Whitehead

I think it's perfectly reasonable that as a loudspeaker site, Climate Voter should carry a promoter statement.

However, I'm not 100% sure that it doesn't fall into similar territory to news sites and blogs. Climate voter IS a third-party organisation and not a news or commentary source, true, but it also does something very different than most third-party organisations: It talks about an issue being important, but it only raises awareness around the actual values of parties and their policies, using the words of the parties themselves without editorialising or characterising them. That doesn't exactly sound like electioneering to me, and I think anyone should be free to do it. It's when you start commenting on parties' policies, or advocating a specific approach, rather than just saying "You as a voter probably think babies are adorable- we asked all the political parties what they think, here's who responded and what they said," that we run into problems with third-party groups.


So... I'm open to these organisations spending above their caps, if it's JUST to inform us. As that's a public service and not just an electioneering stunt. But- and here's the thing- the current law does not provide an exemption for that. So I think they're wasting their time going before a judge when their strongest defense is simply "the law is an ass".

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