New Zealand should fix its election date in law. Otherwise, John Key needs to tell us when the 2011 election will be held ... and soon.

On Monday I had the pleasure (and I'm not being sarcastic here - it genuinely was a pleasant experience) of talking to Parliament's Electoral Legislation Committee for the best part of an hour about the bills to set up the 2011 referendum on MMP and to reform campaign funding practices.

I was speaking to my written submissions, which are available here. A couple of the points that I raised then caught some attention in the media. One was my (probably futile) recommendation that there be spending caps on everyone wanting to campaign in relation to either the referendum or the general election in 2011. The other was my call for the election date to be fixed in law.

With respect to this latter issue, what wasn't made so clear in subsequent reports was the reasoning behind the suggestion. After all, the question of when an election is held seems (on the face of it) to have little to do with how much people can spend on campaigning. So what gives?

In New Zealand, we traditionally have limited the amount that candidates and (since 1995) political parties may spend on advertising their campaigns in the 3 months prior to election day. The Electoral Finance Act 2007 extended this "regulated period" out to the beginning of the election year - as well as putting limits on what so-called "third parties" (i.e. non-candidates or parties) could spend on election advertising. But following the 2008 election, those new rules were quickly repealed by all the parties in Parliament (except the Greens) - raising the question of what rules we should have instead.

I've posted previously on the Government's initial proposals for change in this area. What wasn't included in those proposals was any suggestion that the traditional 3 month regulated period would be changed. But when the Bill entered the House, it contained a new clause proposing to change the regulated period so as to prevent it from applying retrospectively.

(Rather than try my own explanation of how it works, I'll just pinch David Farrar's: "The bill defines the default day (with the regulated period starting the next day) as three months before the latest possible date an election could be called. If the PM announces an election date prior to the default day, then the regulated period starts the day after the PMs announcement, unless the announcement is made more than three months before the election, in which case it is from three months out.")

I can see why this change got made. The problem with applying a three-month period of regulation pre-election day is that elections in New Zealand often get called with less than three months notice, meaning that advertising spending that took place before the election was called suddenly gets deemed to be an "election expense". In the past, political parties have been able to manage this problem (as they have spending caps in the millions of dollars), while candidates also have survived (albeit with a bit more difficulty, given their quite tight $20,000 advertising limits).

But as the new Bill proposes to require "third parties" to register before spending more than $12,000 on election advertising, they potentially could be stung by having their advertising spending retrospectively deemed to be an election expense. For example, let's say Forest and Bird spent $50,000 on urging the public to pressure the Government not to mine National Parks a couple of weeks before an early election was called. That spending subsequently could be deemed to be an "election expense", and thus Forest and Bird will have committed an offence by undertaking it without registering with the Electoral Commission.

Furthermore, there are whispers that the regulation of parliamentary funding finally is to be brought into line with the regulation of general electoral spending  - meaning that MPs could find their routine use of things like their communication budgets to communicate with their constituents suddenly get deemed an "election expense".

So in order to avoid such unfair or unforeseeable consequences, the regulated period will be made purely prospective in application. All well and good ... except that it isn't. Here are the problems.

First, where an election is held at the "usual" time in November, the particular way that the regulated period is defined under the current Bill will in practice lead to it becoming much shorter. So candidates and political parties will be able to spend as much as before on their campaign advertising, but over a shorter period of time - which is the equivalent of substantially loosening the spending controls on these participants.

I don't think that's what the Government intended. At least, I hope it's not - because to do so would be contrary to the views of the majority of people who submitted to the electoral finance reform consultation process. And the problem can largely be fixed by deeming "default day" to fall 2 years, 9 months after the last election day (rather than 90 days before the "last possible day" for an election). So if that were the only issue involved, it would simply be a case of substituting a new definition.

But the bigger problem arises where an early election gets called at relatively short notice (as happened in 2002 and 1984). Because here the "regulated period" will start only when the election is called - which in 2002 was 46 days before election day, and in 1984 was a mere 30 days in advance. Furthermore, the fact that only the Prime Minister and his (or her) party knows when the election will be called, and thus the regulated period begins, confers a considerable potential advantage. The incumbent party could engage in a swift, expensive advertising blitz, then call an early election and thereby restrict how much the opposition can spend in response (while still being able to spend up to the cap itself).

Which is where the idea of fixing the election date in law comes in. For if the election day was specified in advance for all to see, with a fixed 90-day/3 month period of regulated spending preceding it, then any partisan advantage would be nullified. And why should the Prime Minister even have the effective power to decide what day we get to vote on? (In formal terms it is the Governor General who dissolves Parliament and calls an election, but by constitutional convention he or she only will do so on the advice of the Prime Minister.) It seems more a hangover of practices past than a rule that has good reasons to recommend it.

Furthermore, New Zealand law already places limits on when an election may be held. Under the Electoral Act 1993, s.139(1)(b) it has to be on a Saturday. So why not go that extra step and say not only that it must be a Saturday, but that it must be this particular Saturday?

That, then, is the reason for raising the issue of fixed election dates in the context of campaign finance reform. I happen to think the idea is a good one in any case, for reasons much like Colin James outlined here. But given the concerns that inevitably get created when the Government is proposing to change our electoral finance laws in a way that might serve its own interests - concerns we've had enough of after the whole Electoral Finance Act 2007 saga - the reasons for fixing the election day have just gotten much stronger.

Of course, there is another way that any suspicions could be put to rest. If the Electoral Legislation Committee decides not to recommend fixing the election date in law, and decides to stick with a definition of the regulated period that begins with the Prime Minister's announcement of the election date, then John Key could end any fear that he intends gaming the system by announcing the 2011 election date during the Bill's second reading debate. That would trigger a regulated period beginning 90 days/3 months before that date. And it would mean everyone would start that campaign on an even footing.