To ensure the effectiveness of
a political finance system, the political finance regulator (PFR) often has authority
to take enforcement action at the administrative level. Without independent
authority to negotiate settlements or impose sanctions, the PFR is entirely
dependent on other government agencies and the courts to give force to the
political finance laws.
Enforcement does not
necessarily require the imposition of administrative penalties, or recourse to
civil or criminal courts. Where appropriate, non-legal approaches—such as
training, conciliation or public exposure (“shaming”)—can often resolve
non-compliance issues more quickly and inexpensively.
Education
and Training
One method of encouraging
compliance is to provide education and training to regulated electoral
participants. The PFR may hold training seminars, and/or issue plain-language
handbooks or summaries of the applicable laws and regulations. Not only can
training help promote a culture of compliance, it can also empower parties and
candidates themselves to monitor their own reporting and financial activities,
and to correct inadvertent mistakes. The system should also encourage
self-monitoring by reducing penalties for errors or violations that are self-reported,
or by treating self-correction as a mitigating factor.
Negotiation
Non-compliance may also be
resolved by informal negotiations, such as conferences, conciliation and
alternative dispute resolution.[1]
Generally, negotiations result in a compliance or conciliation agreement: the reporting
entity acknowledges a violation, and agrees to take certain actions, pay a
civil penalty or offer other remedies. The best practice is to make all
settlements a matter of public record.
Particularly if the PFR has no
direct authority to impose administrative penalties or take legal action
against offenders, negotiation and conciliation may also be valuable tools for increasing
compliance with the political finance laws. Alternative
dispute resolution mechanisms offer several advantages:
- faster resolution of disputes;
- an active role for
electoral participants or other respondents in determining the settlement
of their cases; and
- reduced costs and
resource depletion compared with traditional enforcement mechanisms.
“Shaming”
Sanctions
Since publicity is the
lifeblood of politics, one of the most effective non-legal enforcement
techniques is public exposure (“shaming”). An example is public release of the
final audit reports of political parties/candidates, through print publication
or posting on the PFR Web site. This promotes public awareness, information and
education . It may also persuade reporting entities to correct reporting
problems during the audit process, lest their violations become common
knowledge. Another shaming sanction is Web posting of a blacklist of political
parties/candidates found to be in violation of the law.
Press coverage is key to the
shaming process. The PFR press department may promote compliance by informing
the media about enforcement actions as they are taken, and by hosting periodic
background briefings for journalists about the political finance requirements
to be met by electoral participants.
Administrative
Penalties
Non-legal sanctions ultimately
depend on the good faith of the regulated electoral participants, and civil or criminal
sanctions on the good will of the regulatory or law enforcement agency. Hence
the need for authority to impose administrative penalties. In many countries,
the PFR itself can impose sanctions or monetary penalties against political
parties, candidates or other electoral participants. Often, it establishes a
quasi-judicial process to adjudicate violations of the political finance law.
The process for determining
violations and/or assessing penalties should vary according to the seriousness
of the potential offence/penalty. The best way of handling minor violations
(e.g. late or incomplete filing of disclosure statements) may be under a
“strict liability” standard, with a minimum of formal procedures to impose minor
fines. For instance, PFRs in Canada and the United States
administer a system of lesser fines to punish minor infringements and encourage
voluntary compliance.[2] A
trial-type hearing is usually unnecessary in these circumstances, and due
process standards can normally be met simply by providing adequate notice to
the offending entity as well as an opportunity to respond. This system
resembles the issuing of tickets for illegal parking in many cities; the great
advantage is that it is easy and inexpensive to administer. Any monetary
penalty should be proportionate to the offence but serious enough to have a
deterrent effect.
For a more complex violation
or one involving specific intent or even civil responsibility, the PFR may
establish a quasi-judicial hearing process to ensure that the case is
adjudicated properly and to afford the offending electoral participant a
meaningful opportunity to be heard. The process generally begins with the
serving of notice that charges have been laid and that the electoral
participant has the right to appear to challenge them. The administrative
adjudication may take place before a commission appointed by the PFR, or it may
be assigned to an administrative law judge in the general administrative
tribunal system. Whoever acts as adjudicator, the accused is entitled to an
impartial, politically neutral proceeding. Further, due process requires that
the electoral participant, whether in person or in writing, have the
opportunity to mount a defence by presenting evidence and to test evidence
presented by officials.
[1] International IDEA, Funding of Political Parties
and Election Campaigns, op. cit. (2003),
p. 151
[2] IFES, “Enforcing Political Finance Laws …”, op. cit
(2005), p. 32
