Direct versus Indirect Regulations
Countries differ greatly in the extent to which political parties are recognized in their constitutions and their laws. In Germany, for example, Article 21 of the Basic Law (or Constitution) mentions the role of parties:
(1) The political parties shall participate in the forming of the political will of the people. They may be freely established. Their internal organization shall conform to democratic principle. They shall publicly account for the sources and use of their funds and for their assets.
(2) Parties which, by reason of their aims or the behaviour of their adherents, seek to impair or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional. The Federal Constitutional Court shall decide on the question of unconstitutionality.
In the United States the internal operations of political parties are subject to detailed legal regulation, as well as to review by the Supreme Court.
In contrast to these examples of direct legal regulation of political parties, there are other countries where parties are not now - or have not been in the past - recognized by the law. Legally, they are no different from any other association or club. They are subject to the rules governing such voluntary associations. For instance, in Belgium,
[p]olitical parties are de facto associations and do not have legal personality; hence their accounts are not subject to any fiscal control.
In Ireland,
[p]olitical parties are generally regarded as unincorporated associations or private voluntary organizations and their existence is not regulated by law.
The situation is similar in Luxembourg
3.
Categories of Regulations
- Regulations relating to parties versus regulations relating to candidates for office.
- The campaigning activities of candidates are normally subject to election laws. The regulation of political parties may also be subject to the same laws but, in addition, there may be separate parties' laws.
- Regulations relating to election campaigns versus regulations relating to the routine activities of political parties.
- Regulations relating to party groups with the legislature versus rules concerning extra-parliamentary party organizations.
- Regulations concerning politics and broadcasting.
How to Find Existing Regulations
The country's electoral laws are the first place to look for regulations relating to political parties and candidates. But the search should not stop there. In many countries laws mentioning parties are found in several different parts of the statute book.
The need to search in a variety of places - including unexpected ones - for party-related laws is illustrated by the recent situation in Britain4. For example:
- The restriction on paid political advertising on television is laid down in the Television Act, 1954, s 3(1).
- The special restrictions on donations to political parties by trade unions and employers' associations derive from Trade Union Acts from 1913 onwards.
- Special requirements relating to the disclosure of donations to parties and to other political payments by companies derive from Companies Acts from 1967 onwards.
- The legal status of the Conservative Party was defined only by the Courts as the by-product of an obscure legal case in which the Conservative Central Office appealed against the inspector of taxes for the right to pay income tax rather than corporation tax on its investment income.
- The legal definition of 'political party' was given in the equally obscure Finance Act, 1975, part 1 (11)(2) which defined the conditions under which exemptions from capital transfer tax (i.e. inheritance tax) could be claimed for bequests to political parties.
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