There is no blueprint for campaign finance; each country will
need to reflect its unique historical, political and socio-economic setting in
the design of its own regulatory framework. This section focuses on comparing
the strengths and weaknesses of existing legal frameworks by stressing the goals
pursued by campaign finance regulations and their positive and negative effects
on the electoral process. It also highlights several key elements to consider
for all approaches regarding the main shortcomings of existing campaign finance
systems worldwide.
Comparative assessment
of strengths and weaknesses of existing legal frameworks
This section includes a summary
table that assesses the potential positive and negative effects of existing
frameworks against the goals pursued and the effect on the electoral process. ‘Strength’
relates to the rationale having led to the adoption of different campaign finance rules and the
impact that these campaign finance regulations can have on the electoral
process as a whole, while ‘weakness’ pertains to their negative effect.
|
Type of campaign finance regulation
|
Potential Strengths
|
Potential Weaknesses
|
|
|
|
Sources of financing
|
|
|
|
-
Allocation of public funding
|
→ enhancing
political pluralism
→
levelling the playing field
→ limiting
effects of corruption and reducing the influence of large donors on political
debate
→helping
promote women’s participation in elections and increasing the number of
female candidates and elected women
|
→ Risk of over-dependency on
financial state support
→ Weakening of links between the political parties/
candidates and their electorate
→ Harming political pluralism and emerging small parties/
candidates when eligibility threshold and allocation criteria are vaguely
defined or too restrictive/high
|
|
- Limitations/ bans on
private contributions
|
→ allowing electoral contestants to have a
social and local anchorage/ and a grass-roots financial support
→
levelling the playing field
→limiting
effects of corruption
|
→ Circumvention
of rules when limitations/ bans only apply to election campaigns and not to
political party financing
→ Limitation
of freedom of speech and association
|
|
|
|
Campaigning
|
|
|
|
-
Spending limits/ bans
|
→ reducing the gap between wealthy and
poor candidates and thus the advantage of the first ones over the second ones
→ ensuring equality of opportunities
for candidates and political parties
→
constraining the growth of electoral campaign cost
|
→ Circumvention of the spending limit when key-notions are
not or are vaguely defined (electoral expenditure, length of the electoral
campaign), when spending limit does not apply to all electoral actors
(third-party spending)
→ Limitation of freedom of speech and association
|
|
-
Prohibitions on misuse of
administrative resources
|
→ reducing the inherent advantage of incumbent candidates over their opponents and ensuring equality of opportunities among electoral
contestants
→promoting a clear distinction between party
and state
→
increasing transparency of campaign resources
|
→ risk that all State
activities are seen as abuses
→ Hindrance to an effective
governance in the period prior to an election where, for instance, rules ban
hiring staff during campaign periods
|
|
|
|
Control
mechanisms
|
|
|
|
-
Reporting and disclosure
|
→ ensuring that electoral contestants comply
with campaign finance regulations through the submission of comprehensive and
exhaustive reports
→providing
transparency of the financing of campaigns
→
holding electoral contestants accountable
|
→ Reporting requirements too burdensome to be feasible
→ Deadlines for submitting financial reports too short to allow
for accurate reporting
→ Absence of disclosure of (some) sources of financing
→ Harassment of supporters of
the opposition party(ies)
|
|
-
Oversight
|
→ ensuring effective enforcement of campaign
finance regulations
→enhancing
transparency of campaign finance
→
creating safeguards against abuses or circumventions of campaign finance
legislation
|
→ Oversight body non endowed with investigative power;
→ Partiality or political appointments of the members of
the EMB leading to deadlocked decision- making process/ political-biased decisions
or absence of enforcement of regulations
|
|
-
Sanctions
|
→ sanctioning violations of campaign finance
regulations
→
punishing those who fail to comply
→
deterring future non-compliance
|
→ Oversight body not endowed with the power to impose
sanctions;
→ existence of an array of sanctions which are not
dissuasive enough to deter future non-compliance
|
Main weaknesses of
existing legal frameworks
Although
a legal framework is necessary to regulate the influence of money in politics,
it is not always sufficient. In many countries legal regimes governing campaign
finance are riddled with loopholes and poorly enforced. It is difficult to
enforce campaign finance regulation when laws are too complex, burdensome or
vague to be implemented, or when oversight bodies are insufficiently resourced
to carry out their duties.
Loopholes/ Ambiguous laws
One
recurrent problem of existing campaign finance systems is imprecision or the
lack of definitions of key terms. Indeed, it makes little sense to set out
extensive and detailed reporting and disclosure requirements when the concepts
of electoral expenditure, the length of the electoral campaign period or
in-kind contributions are inadequately defined.[1] The
absence of clarity in the regularity framework is also problematic when
reporting requirements, such as opening a dedicated bank account or appointing
a financial agent, or disclosure requirements are established by law without
greater detail. The oversight body will then need to develop and issue
instructions to further clarify the obligations of electoral contestants if it
has the mandate to do so.
A common loophole is when regulations
apply to either parties or candidates, but not to both, allowing for funds to
be channelled from one to the other and thus circumventing the law. Most countries around the world do not
have regulations on third-party spending. As mentioned in the
IDEA Handbook on Political Finance, “actors that are neither political parties
nor candidates may want to spend funds in order to influence political
discourse in general or the outcome of an election. Such political spending by
[third-parties] poses
serious problems in terms of the amount of corporate and interested money that
can be channeled in to the political process.”[2]
This area remains problematic and third-parties are often used as vehicles to
circumvent campaign finance regulations, such as spending limits, contribution
limits or disclosure requirements in countries where this issue is not dealt
with.
Absence of enforcement
The
oversight body must be independent in terms of appointment, security of tenure
and funding. It also needs to have adequate authority to supervise and investigate
accounts and refer irregularities to criminal justice authorities. Whenever appointment and dismissal
procedures of the oversight body members are not independent from political
pressure, when appointees
are not guaranteed security of tenure, or when the funding and the independence
of its budget necessary for the oversight body to fulfill its mandate is not
sufficient, there is a risk that the oversight body can be deadlocked along ideological lines, perceived
as partial or be susceptible to biased enforcement of campaign finance
regulations.
A
broad range of sanctions is the main toolset that
the oversight body can use to effectively enforce campaign finance regulations.
Sanctions should be flexible enough to cover the type and gravity of a possible
violation and also proportional, effective and deterrent. Thus, a balance
should be struck between sanctions that are excessively harsh and those that
are too weak to act as a sufficient deterrent, leading to situations where
electoral contestants prefer to accept penalties rather than comply with the
law.
[1]Defining
such key understandings is critical to guarantee
the completeness of the financial reports by enabling electoral
contestants to classify the expenditures that have to be included in their
financial report and have to be accounted for the compliance
with the spending limit and the timeframe during
which they have to abide by the campaign finance rules.
[2] Cf: p.259 of IDEA’s Handbook on Political Finance.
