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;
- 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 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.
The complaints mechanism should be accessible and user-friendly. At the same time, it should discourage frivolous complaints or “fishing expeditions” by competing electoral participants. The PFR should set clear standards, requiring at a minimum that any complaint be timely, based on specific factual allegations, and signed and affirmed by the complainant. In the case of transitional democracies or states with one-party rule, some flexibility may be needed: if there is a danger of reprisal from the party in power, citizens should be able to file complaints anonymously.
In addition to complaints, the PFR should 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 resources 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 should 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 a civil or criminal court.
An investigation may also be initiated by the media or by non-governmental organizations and other civil society groups. Such an external investigation might encourage a reluctant or deadlocked PFR to undertake an official investigation. Alternatively, the external group may refer the evidence it gathers in its investigation to the PFR or a government prosecutor for further action.
NOTES
[1] IFES, Enforcing Political Finance Laws: Training Handbook, 2005, p. 45.
