In some systems, the political finance regulator (PFR) has the authority to file a civil action in the general courts, requesting monetary relief or an injunction if an electoral participant appears to have violated the political finance laws. In addition, the PFR will have to bring an action against the offender in the civil system to enforce administrative orders and penalties if they are not self-executing.
The advantage of civil enforcement is that the PFR need not depend on the law enforcement authority 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 file 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 civil cases initiated by the PFR, civil society groups and academics may provide useful research and legal arguments by filing an amicus curiae (“friend of the court”) brief in support of the PFR. Even a candidate or campaign may promote enforcement by bringing suit under the political finance laws because of injury suffered in the electoral process.
Enforcement is strengthened if the PFR can itself initiate criminal prosecution of political finance offences or can refer certain cases to another government body with the authority to launch criminal proceedings. Most countries, however, 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. [2]
In fact, rather than severe criminal penalties, experience shows that a more effective way of enforcing the law is through monetary fines and the threatened withdrawal of public subsidies. [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 of any potential violation.
- The PFR usually must rely on law enforcement agencies to prosecute criminal violations of the political finance laws.
In 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. [4] 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 vulnerable 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. [5] For instance, in the 1993 parliamentary elections in Poland, dozens of campaign committees failed to make timely disclosure, or any disclosure. Despite this, the prosecutor’s office decided to discontinue proceedings in 58 cases of political finance violations that it deemed were socially harmless. [6]
NOTES
[1] IFES, Enforcing Political Finance Laws: Training Handbook, February 2005, p. 60–61.
[2] International Institute for Democracy and Electoral Assistance, Funding of Political Parties and Election Campaigns, 2003, p. 151; See also Davidson, Diane R., “Enforcing Campaign Finance Laws: What Others Can Learn from Canada,” Election Law Journal, 3(3), 2004, p. 537–44.
[3] Enforcing Political Finance Laws, p. 30–31.
[4] Funding of Political Parties and Election Campaigns, p. 151–52.
[5] Enforcing Political Finance Laws, p. 33.
[6] Ibid.
