In some systems, the political finance regulator (PFR) has the authority to file a civil action suit in the general courts, requesting monetary or mandatory (injunctive) relief if an electoral participant appears to have violated the political finance laws. The PFR may also have to bring an action against the offender in the civil system to enforce administrative orders and penalties if they are not sufficient or self-executing.

The advantage of civil enforcement is that the PFR need not depend on the law enforcement authorities to initiate legal action, as is the case for criminal prosecutions. Should a PFR be ineffective or lack resources, non-governmental organizations (NGOs) and private litigants can attempt to bring a civil suit. An NGO often is able to sue on behalf of its membership or the general public to ensure that candidates and political parties comply with the law.[1]

In a few countries (e.g., Georgia), accredited national observers can submit electoral complaints. In civil cases initiated by the PFR, civil society groups and independent individuals (such as academics) may provide useful research and legal arguments by filing amicus curiae (“friend of the court”) briefs in support of the PFR. Even a candidate or campaign may promote enforcement by bringing suit under the political finance laws on the basis of injury suffered in the electoral process.  Similarly, a candidate or party could potentially bring action against the State if the response of electoral administration to a violation by another election participant is ineffective.[2]

Enforcement is strengthened if the PFR can itself initiate criminal prosecution of political finance offences or can refer cases to another government body with the authority to institute criminal proceedings. Most countries do not empower the PFR to initiate or conduct prosecutions of criminal violations of the political finance laws. An exception is Canada, where the PFR can initiate an investigation and appoint personnel to conduct it. The Canadian PFR can also initiate prosecutions of offences under the political finance laws. [3]

Prosecutions involve two disadvantages:

• They almost always take place after the election is over. As a result, when making their voting decisions, electors do not have the benefit of knowing the facts that might emerge from a proceeding.
• The PFR usually must rely on the prosecutorial discretion and good faith of law enforcement agencies to prosecute criminal violations of the political finance laws.

Thus experience shows that, rather than severe criminal penalties, monetary fines and threatened withdrawal of public subsidies are often more effective ways of enforcing the law.[4]

In the Republic of Korea, for instance, the Central Election Management Committee must transfer every investigation/prosecution of violations of the spending limits and disclosure requirements to the criminal investigation authorities, which decide whether imprisonment or fines are appropriate.[5] A decision to pursue criminal sanctions thus shifts all enforcement authority to the law enforcement agency, and this body may not give priority to political finance violations or may be subject to political pressure.

Particularly in countries in transition, the decision about whether to prosecute political leaders or candidates is not always made objectively and may not be based on a detailed review of the case. [6] For instance, in the 1993 parliamentary elections in Poland, dozens of campaign committees failed to make timely disclosures, or any disclosure at all. Despite this, the prosecutor’s office decided to discontinue proceedings in 58 cases of political finance violations that it deemed socially harmless.[7]