An investigation into an
electoral participant’s financial activities may be warranted if a political
finance report is submitted that is incomplete or incorrect, or if the
political finance regulator (PFR) has reason to suspect a violation of the law.
While PFRs may be reluctant to conduct them, investigations are crucial to the
detection process. If a PFR has its own investigative capacity, it can identify
and analyze political finance violations itself without relying on cooperation
from other government entities.
An investigation may:
- collect general
information about the electoral participant’s financial activities,
including banking and vendor records;
- gather testimony from
employees, contributors and other witnesses through interviews or other
communications; and/or
- collect evidence of
political finance violations for use in administrative, civil or criminal
enforcement proceedings.
The PFR may decide to launch
an investigation on the basis of its own internal review and audit of the
electoral participant, or in response to an external source such as a complaint
or a press report. If the PFR has an effective audit and review system, most
reporting errors and potential political finance violations may be detected
in-house. Even the most advanced political finance monitoring system, however,
will benefit from an external oversight mechanism.
Many jurisdictions have a
complaints procedure allowing citizens to report political finance problems or
suspected legal violations on the part of political parties, candidates or
other electoral participants.
In addition to complaints, the
PFR may be empowered to launch an investigation in response to information
received from other sources, including other government agencies, the media and
non-governmental organizations.
The PFR may have the authority
to conduct a field investigation itself, or else it may refer a case to another
government agency or engage a private investigator. In Poland,
for instance, the National Electoral Commission may refer cases to the tax
authority for investigation.[1] With
a potential criminal violation, the PFR often will refer the matter to the
appropriate federal or state criminal law enforcement authority or prosecutor’s
office. Referring an investigation to another government agency conserves the
PFR’s resource but it leaves to that agency the decision on whether to
investigate the alleged violation.
When investigating potential
political finance violations, the responsible agency should respect the legal
rights of suspects or witnesses, and inform them that an investigation is being
conducted. In a criminal investigation, additional due process rights might
apply to a suspect under interrogation, such as the right to counsel or the
right to refrain from self-incrimination. Proper care should be taken to ensure
that all evidence gathered in an investigation is admissible in an
administrative, civil or criminal court.
An external investigation may
also be initiated by the media or by non-governmental organizations and other
civil society groups. Such an investigation might encourage a reluctant or
deadlocked PFR to undertake an official investigation. Alternatively, the outside
group may refer the evidence it gathers in its investigation to the PFR or a
government regulatory or prosecutorial authority for further action.
[1] IFES, Enforcing Political Finance Laws: Training
Handbook, 2005, op. cit., p. 45
