For enforcement to be
successful, the political finance regulator (PFR) should have clear authority to
enforce the political finance laws in administrative, civil and criminal
forums, and must have access to a range of penalties and sanctions. Even if the
PFR has full oversight authority, it cannot meaningfully enforce the political
finance laws without the power to impose sanctions or initiate proceedings
against offenders. Japan,
for example, has extensive disclosure requirements but the election agencies
that administer disclosure regulations are not authorized to verify financial
statements, investigate financial transactions, or impose sanctions on parties
or politicians.[1]
Without penalties, a system of political finance regulation is ultimately
toothless and is forced to rely entirely on the good faith of electoral
participants.
Enforcement will be better and
more consistent if a full range of
penalties of varying degrees of severity are available. Sanctions may include:
- modest administrative
fines for minor violations;
- heavier monetary
penalties for serious violations;
- criminal sanctions for
significant violations that undermine the integrity of the elections;
- loss of reimbursement for
election expenses, withdrawal of public funding and ineligibility for
future funding;
- loss of seat in the
legislature, disqualification from standing for future elections and
ineligibility for appointment as a public official;
- dissolution of a party;
and/or
- cancellation or annulment of an election, in whole or in part.[2]
If the political finance laws
provide only for severe sanctions, such as the reversal of an election or
criminal penalties, the PFR may be reluctant to bring an enforcement action or
is likely to face considerable resistance from the violator and supporters.
Equally problematic is a general belief that penalties for relatively minor
transgressions are too severe: this may raise doubts about the fairness of the
political finance system, with the result that non-enforcement or the
“under-charging” of offences is tolerated.
In the Republic of Georgia,
for example, the absence of civil penalties is widely thought to have led to
the non-enforcement of political finance disclosure laws. The only penalty for
disclosure violations is disqualification from future electoral contests, and
this sanction has yet to be imposed by judicial authorities.[3]
Similarly, the Canada Elections Act can be enforced only through the
criminal courts, not an administrative tribunal or civil court. As a result,
the Canadian PFR has developed a policy of imposing light sanctions for many
offences.[4]
A final consideration in the
establishment of an effective enforcement system is timing. For many aspects of
political finance, enforcement is meaningful only if it takes place during the
election period. For example, if the PFR does not ensure that campaign
committees are making contemporaneous disclosure of their financial
transactions, the public will not receive accurate and timely information on
which to base voting decisions. If penalties are not assessed before election
day, the sanctions may come too late to safeguard the integrity of the
electoral process. Further, media coverage of political finance violations
during an election draws public attention to the integrity of campaign
committees, and this attention may be a far greater deterrent to offending
committees than any monetary penalty imposed after the election.
[1] International IDEA, Funding of Political Parties
and Election Campaigns, 2003, op.
cit., p. 149
[2] IFES, “Enforcing Political Finance Laws …”, op.
cit., (2005), p. 30
[4] International
IDEA, Funding of Political Parties and Election Campaigns, op. cit., p.
153
