Political finance laws are technical and complex and have often proved vulnerable to evasion, distortion and abuse. For enforcement efforts to be effective, it is important for the law to be clear, unambiguous and comprehensive. It should also anticipate how political parties, candidates or other electoral participants may seek loopholes to subvert the law.
An effective political finance law clearly states the scope of its jurisdiction and defines all relevant terms unambiguously.[1] Vague terminology allows electoral participants or their representatives to argue that certain financial activities are not encompassed by the definitions of regulated political activities and therefore not subject to the law. For instance, if the definition of “contributions” does not mention “in-kind” contributions (i.e., donations of goods and services), the law may apply only to monetary contributions, allowing potentially valuable in-kind donations to go unregulated and unreported.
Political finance laws are likely to be ineffective if they fail to include all relevant financial activity in their scope or set forth a comprehensive and consistent enforcement mechanism.[2] For effective enforcement of disclosure requirements, for instance, the law should list every type of financial transaction that electoral participants are required to report, including monetary donations, in-kind contributions, loans, leases, advances, liabilities, shared expenditures and joint fundraising. Similarly, if the law is intended to regulate political advertising, it should list all media and types of electioneering messages to which it applies.
The law and regulations should deal clearly with:
Political finance laws must specify which persons or entities are liable for which offences—particularly in the case of “strict liability” violations, where the specific intent of an individual is not determinative. Electoral laws commonly hold political party officials, candidates or campaign committee financial officers (treasurers) liable for political finance violations. If the law does not make high-ranking officials or candidates personally liable for violations, these persons may claim ignorance to evade responsibility for acts committed by their agents and employees. Further, if the law does not make individuals personally liable for violations and imposes liability only on party or campaign committees, there may be no one to hold accountable for violations once these committees disband after an election.
In a federal system, a complicating factor is overlapping jurisdiction of laws and agencies regulating political finance at the national, state/provincial or other local level. In a federal system, depending on the nature of the elective offices involved or the violations concerned, either federal or state law might determine the enforcement procedures.
The best way to ensure that a political finance law is clear and comprehensive is to exercise forethought and due deliberation in drafting. Since electoral statutes are rarely perfect, it is vital to conduct periodic reviews of the law, and to be proactive in amending the law and instituting new programs and procedures. For instance, after every election some political finance regulators publish a review of the political finance law, analyzing the efficacy of enforcement efforts and identifying weaknesses. The political finance system must continually be refined to counter ongoing efforts to circumvent it, and to maintain broad and effective enforcement.
