Why Electoral Laws Are Often Not Enforced
It is of little value to have laws on the statute book, unless those who contravene the law are subject to penalties. But it is, in addition, of little value to include a schedule of penalties on the same statute book unless the offender anticipates that breaches of the law are likely to be investigated, and unless he fears that illegal practices will be enforced. Punishments that are not applied will not deter wrongdoers.
Yet, laws relating to the conduct of elections - especially those regarding political financing - are often disregarded. There are several reasons why this is commonly the case. First, there may exist a culture of disregard for the law among the rival political parties and candidates. If most or all of them turn a blind eye to the regulations, none of them will wish to initiate a legal challenge against political opponents for fear of retaliatory actions against themselves. Informal 'non-aggression pacts' between professional campaign organizers of various parties are a common feature of political life.
Second, the institutions responsible for electoral administration may not possess an enforcement arm and, therefore, may be in no position to initiate inquiries or checks into possible wrongdoing. Breaches of the rules (for instance, concerning limits on permitted campaign spending) may be subtle and hard to detect. Without a qualified and properly staffed 'detective force' the authorities will frequently take no action unless presented with a complaint. They will merely respond, but they will not initiate inquiries.
Third, when legal challenges are left to aggrieved individuals or parties (for instance, candidates who feel that they have been unfairly defeated), the costs of initiating such an action may prove prohibitive. All too often, cost considerations have deterred defeated candidates from bringing election petitions in the law courts in Britain.
Examples of Rarely Enforced Laws
It is not hard to find examples of poor enforcement.
Germany
According to the U.S. Library of Congress, '[s]anctions are not a major feature of the German provisions on party financing.'
Italy
'Law No. 515 [of 1993] ... has quietly achieved a complete depenalization of all violations of private financing [of election campaigns] by imposing exclusively administrative fines that range in amount from a few thousand [U.S.] dollars to a few hundred thousand dollars. These are modest sums when compared to the astronomical cost to taxpayers for the kickbacks and bribes involved in the political scandals over just the last decade.'
Turkey
In Turkey, the 'Constitutional Court usually fails to audit the accounts of the parties in the year submitted. It generally takes a few years before the Court examines them.' 85
Britain
Parliamentary candidates face severe penalties for exceeding the legally permitted limit on campaign spending. Yet the last election petition that led to an elected candidate being forced to forfeit his seat in the House of Commons was brought three-quarters of a century ago.
United States
In the United States, the Federal Corrupt Practices Act of 1925 proved almost entirely a dead letter:
in the history of the 1925 act, no one was prosecuted for failing to comply with the law. Only two people--Republicans William S. Vare of Pennsylvania and Frank L. Smith of Virginia--were excluded from office for violating spending limits. And they were excluded in 1927 as a result of violations incurred in the first election in which the law was in place. Over the next forty-five years, no other candidates were punished under this act. 86
Policy Implications of Fact of Rarely Enforced Laws
Two very different reactions are possible to the fact that penalties of breaches of electoral laws are rarely imposed. One approach is to advocate relatively light penalties, such as small or medium-sized fines. The rationale is that if penalties are moderate, there will be an added incentive for the electoral authorities to seek to enforce them. If the penalty for a breach of the law is very heavy - such as forfeiture of a seat in the legislature - those accused of contraventions will fight extra hard to avoid being found guilty. Enforcement will become especially costly, and, because of this, it will become rare.
The opposite approach is that, since enforcement is likely to be irregular, it is all the more important that penalties for proven and significant breaches should be severe.
Policy about the severity of penalties is influenced also by another factor, namely the possibility of legal breaches that arise out of genuine errors, rather than from an intention and a plan to break the law. The problem about over-severe penalties is that they may unduly damage new and relatively inexperienced parties and candidates. They may thus deter such new actors from entering the electoral arena while leaving unaffected the established parties, which are likely to know the law better as well as the most effective ways around the law. Because of this problem, electoral law in Britain permits candidates found guilty of breaching the law (for instance, concerning campaign spending limits) to appeal to the Court for 'relief' from the heaviest penalties on the ground that the breach has been minor or unintentional.
The Impact of Electoral Laws on the Types of Offences
Breaches vary greatly between country to country on the basis of the laws against which offences or alleged offences have been made. For example, regulations concerning campaign financing in Britain relate mainly to individual candidates and their agents. At worst, successful candidates stand to forfeit their parliamentary seats if serious breaches are proved. However, this penalty of the loss of particular seats in the legislature will be inappropriate and difficult to conceive for list systems of proportional representation. Under these systems, it is the party, rather than the individual candidate that presents itself to the electors.
To give another example, where political parties receive public funding, it will become possible to use a withdrawal of such funding as a penalty. Needless to say, such a penalty will not be available in countries where parties receive no public funding in the first place.
In general, it becomes harder to impose a harsh penalty on a candidate for a presidential election than for a parliamentary election. Equally, it is more difficult to impose a harsh penalty on an entire national party than on a single candidate. If an individual candidate for parliament loses their seat, this will not invalidate the entire national election and it is unlikely to change the entire balance of power between political parties in the legislature.
By contrast, if a successful presidential candidate, or a major party, are found guilty of breaching laws relating to maximum permitted expenditure, the uncomfortable choice for those concerned with electoral law is between a penalty that is too small and one that is probably too large. A financial penalty - even a large one - will hardly be a just and adequate punishment if the winning candidate has achieved success by a significant degree of cheating, and is permitted to enjoy the fruits of this cheating. On the other hand, if the punishment for a breach of regulations relating to expenses carries the penalty of forfeiture of the election, then the stakes involved in investigations regarding alleged offences will be little less than revolutionary. A law court will have in its hands the ability to overthrow a president, or to void the seats of an entire party.
Types of Penalty
The most common penalties are:
- forfeiture of contributions obtained in contravention to laws or regulations,
- forfeiture by a political party to part or all of its entitlement to public funding,
- fines,
- imprisonment,
- temporary loss of right to sit and vote in the legislature by successful candidates who have failed to submit a return of expenses on time,
- forfeiture of seat in the legislature by a successful candidate later found guilty of a serious offence,
- loss of civil rights by those found guilty of offences. This may include a loss of the right to vote for a certain period of time, the loss of the right to stand as a candidate for office in the electoral district in which the offence has taken place, the loss of the right to stand as a candidate in any electoral district.
Responsibility for Breaches
Who should be held accountable if a campaign worker disobeys the law in the interests of his party or his candidate? Is it just to penalize candidates for actions taken on their behalf, but without their authorization?
There is no simple answer. If those at the top of the campaign hierarchy are held responsible for every low-level breach, they will risk being penalized for actions over which, in practice, they have had no control. On the other hand, if the candidate is free from liability, there will be a great temptation for campaign organizations to disregard the law in the knowledge that, even if they are found out, the candidate and the party will not suffer. In some countries, a junior official is expected to be the person who will carry the can and will, if necessary, go to prison on behalf of the cause. He will then receive his reward later from the party hierarchy for saving the principal actors from incarceration or other serious penalties.
A device was introduced in Britain in the nineteenth century to deal with this problem, and this has been adopted in other countries that have copied the 'Westminster Model'. Since candidates cannot be expected to deal with the details of campaign organization and spending, while at the same time spending their time making speeches and meeting electors, candidates may delegate the task of managing the campaign, as well as the expenditure of money, to an agent. Since candidates have been able to appoint an agent of their choosing, candidates are therefore liable for breaches committed by the agent. At the same time, the agent must assure that no campaign expenditure is incurred without his authorization.
Enforcement: Electoral Authorities versus Law Courts
Where there is a special electoral authority, it may have certain enforcement responsibilities. For example, the United States' Federal Election Commission is permitted to reach agreements with those accused of breaches of campaign finance laws. If those accused of offences are willing to come to such an agreement, they will not normally face prosecution before the Courts.
A conciliation agreement between the Federal Election Commission and the person against whom a legal complaint has been filed consists of three elements:
- a description of the facts.
- an admission by the accused of a violation of the law,
- a financial penalty.
In 1991, the Canadian Royal Commission for Electoral Reform and Party Financing made the case for administrative, rather than criminal, enforcement:
the designation 'criminal offences' should be reserved for violations of society's most fundamental values. An individual should be convicted of a crime and subjected to the corresponding stigma and punishment only where it can be demonstrated beyond a reasonable doubt that the prohibited conduct was carried out intentionally, knowingly or purposively. Most election violations do not fall under this rubric. Rather, they are primarily administrative or regulatory in nature. ...
We propose that all violations under the Canada Elections Act be defined as either infractions or offences. Infractions would be either procedural, administrative or regulatory and would involve less severe penalties. They would be adjudicated exclusively by the Canada Elections Commission, with the possibility of judicial review by the Federal Court of Canada. The second category of violations would be the more serious, involving some element of wilful misconduct. These violations could result in severe penalties, including higher fines, imprisonment or the loss of certain rights under the Canada Elections Act.87
In some countries, apart from electoral commissions and courts of law, enforcement of electoral laws is a responsibility of the president or speaker of the legislature (as in Germany and Greece).
Penalties: Non-Compliance with Electoral Law and Agreements
This distinction is relevant where, as described above, an electoral authority has reached a conciliation agreement with a person accused of a legal violation. Where this agreement includes a fine, and where the violator fails to pay the fine, there will need to be provision for a distinct, additional penalty for non-compliance with this agreement.
For more information on this and related subjects, see also Legislative Framework.
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