The political finance law should
mandate a government regulator to enforce the relevant laws, or authorize an
existing government body to perform this function. The identity and structure
of the political finance regulator (PFR) will vary in different jurisdictions,
and the responsibility for enforcement can be assigned to a single body or
shared by a number of bodies. In many countries, the PFR is a department within
the electoral management body. Other countries may authorize government
agencies with more general jurisdiction to administer or enforce the political
finance laws—for instance, the interior or finance ministry, government auditor
or comptroller, or tax authorities. The PFR may also be a separate executive
institution, such as an independent administrative agency.[1]
To perform their oversight and
enforcement functions, PFRs must have independence, impartiality and
operational integrity:
Independence
An independent PFR is better
protected from attempts by the executive or legislative branches to misuse the
regulator’s enforcement powers for political ends. Independence is fostered by a fair and
transparent appointment process, with members selected by the executive and/or
legislature through open deliberation. To promote continuity and stability, the
institution should have a strong chair or chief commissioner, and staggered
terms of office for members. Public monitoring by the media and public interest
groups can serve to check interference by the legislature.
The PFR should have an
independent budget; otherwise it could face budget cuts as retaliation for
enforcing the laws against elected officials or the party in power. Ideally,
the need to protect the PFR from threats to its budget should be balanced with
the justifiable need for government oversight of the PFR’s expenditures,
salaries and other costs.[2]
Impartiality
The appointment process is
central to ensuring impartiality. There is no single appointment method that
guarantees impartiality and accountability. In some countries the president or
executive makes all appointments, although this method may yield a PFR lacking
independence. For greater balance, the appointments responsibility can be
divided between the executive and the legislature. Another approach is to give
the lead responsibility to the judiciary or a designated civil service
commission. In the U.K.,
a group of senior civil servants are mandated to review applications for
appointments to the (largely advisory) U.K. Electoral Commission, and political
parties are consulted only later in the process.[3]
Some enforcement bodies are
non-partisan, while others are “multi-partisan”, having participation by all
major political parties. A non-partisan PFR may be effective only in
jurisdictions with a strong and independent civil service and political culture
that fosters the genuine neutrality of members. Multi-party representation may
appear to be fair but has been criticized as leading to gridlock and inactivity
within the PFR.[4]
This is certainly true in the U.S.,
where the balanced bipartisan composition of the FEC has prevented meaningful
responses to a range of financial and related reporting issues.
Finally, impartiality is
enhanced when the PFR itself is subject to monitoring. Like any government
body, the PFR may become enmeshed in partisan politics, or internally corrupt
or wasteful. Biased enforcement of political finance laws is a problem
particularly in transitional democracies or countries under one-party rule;
elected officials and parties in power may attempt to use the PFR to harass or
eliminate opposition candidates and parties. For example, in Ukraine
during the 1999 presidential elections, the government reportedly used the
police, fire and tax inspection services to harass the opposition.[5]
Several steps can enhance the
PFR’s impartiality:
- The PFR should develop
internal guidelines setting forth objective, neutral criteria for
discretionary decisions, such as whether to commence an investigation or
an administrative penalty proceeding.
- If political finance laws
are administered and enforced with full transparency, the media and civil
society organizations can monitor the impartiality of the PFR and raise
public confidence in its integrity. Some aspects of the audit and penalty
decision-making process may need to remain confidential, but much of the
PFR’s internal policy can be made public. (For instance, on its Web site
the New York City Campaign Finance Board [NYCCFB]
posts disclosure statement deadlines and administrative penalty schedules,
as well as a plain-language candidates’ handbook explaining the general
structure of the electoral law and the disclosure/audit process.)
- Regular audits of the PFR
can provide assurance that the PFR is using its budget legitimately and
efficiently to achieve the purposes for which the funds were allocated.
- A written code of ethics
can clarify the PFR’s internal policies on public employment,
confidentiality and conflicts of interest.
Operational
Integrity
The PFR must have the
authority to plan its own program for political finance administration and
enforcement, along with the financial and human resources to implement this
program. Even if the PFR’s budget is protected from political pressure, it may
be insufficient for effective enforcement if the country itself has limited
resources or because political finance simply is not a legislative priority. In
fact, in many countries political finance laws have become more far-reaching
and complex in recent years, but PFRs’ budgets have not necessarily increased
commensurately.[6]
Without sufficient resources, the PFR cannot maintain operational integrity. If
it has to depend on another agency or the legislature for resources or
personnel, vigorous enforcement could be at risk.
PFR staff may lack expertise
or experience, a deficiency that particularly weakens the audit function. For
instance, although the Election Commission of India
has powers of oversight, investigation, prosecution and sentencing, it has had
little success in enforcing the political finance law because of staffing
shortages.[7] To
maintain operational integrity and independence, the PFR should also have
control over—or at least some involvement in—the recruitment, organization and retention
of its own staff.
The
Role of Technology
A PFR with limited resources
can increase its operational efficiency through the proactive and innovative
use of technology. If it has competent technical staff, the PFR can computerize
much of the disclosure information it receives as well as its analysis of that
information, publishing relevant material in a timely manner on the Internet.
Australia, Bosnia and Herzegovina, Bolivia,
Britain, Georgia, Peru, the United States
and other countries currently have databases for collecting and storing political
finance information, most of which are made publicly available over the
Internet. Both the Central Election Commission in Lithuania and the
NYCCFB (see above) in the United
States have developed comprehensive
electronic campaign finance reporting programs. Both regulators provide
software to candidates so that they can file disclosure statements
electronically or on electronic media. The information is uploaded to the PFR’s
public Web site, allowing users to undertake on-line searches for a wide range
of campaign finance information. In addition, the NYCCFB maintains a public
computer terminal that anyone can use to study current political contribution
data.
[1] See
IFES, Enforcing Political Finance Laws: Training
Handbook, 2005, p. 10–11.
[5] US Agency for International Development, Money in
Politics Handbook: A Guide to Increasing Transparency in Emerging Democracies
(Washington DC, 2003), p. 25
[6] IFES,
Enforcing Political Finance Laws, p. 17
[7] International Institute for Democracy and Electoral
Assistance, Funding of Political Parties and Election Campaigns, 2003, pp.
148, 151
