Bryce Edwards: Political Roundup – Will electoral and political finance law reform succeed this time around?

It’s welcome news that the Government has announced this week that they intend to improve how elections work in this country, including fixing the political finance rules. Justice Minister Kris Faafoi has announced that major reforms will be investigated in the areas of political donation rules, promising changes that will make it “easier to see where money is coming from”. He will do this by establishing an independent review panel of experts to come up with some suggested reforms.

The review will also consider other highly contentious electoral issues: lowering the voting age, reducing the 5% MMP threshold, abolishing the coat-tailing rule, lengthening of the parliamentary term, and increasing the ability to switch on and off the Māori electoral roll.

But the devil is definitely in the detail, and it seems that Justice Minister Kris Faafoi has made some questionable decisions in how he’s set up his new review. It might all mean that the chances of achieving any significant reform will once again be stymied by poor design. Or else it might even produce an electoral shakeup that makes things worse.

The announcement has generally not been well received. Political journalists and commentators have all found plenty to question about what the Government is doing.

Today Newsroom’s Sam Sachdeva suggests that the Government’s announcement is unlikely to lead to much real reform, concluding: “it is easy to be sceptical about this Government having any more success than others in moving beyond piecemeal change to a more substantial overhaul” – see: Push for more than piecemeal electoral reform may struggle.

The lack of information provided by Faafoi about the review is part of the problem apparently – especially in terms of political donations transparency. But Sachdeva suggests that the easiest area for donations reform will be in terms of lowering donation disclosure levels, and tightening up the rules about parties selling expensive artworks as a way of receiving donations. He questions, however, if the review will look at tightening up money related to foreign influence.

In terms of state funding for political parties – a long-time policy wish of the Labour Party – Sachdeva reports that Faafoi says he won’t proceed on this without obvious public support, which really means it’s not on the table as a reform option.

The Herald’s Audrey Young is also highly sceptical about the Government’s latest initiative, especially because we’ve already had so many reviews of electoral law and political finance, and they never seem to result in any progress: “The golden rule in politics appears to be if at first you don’t succeed, set up a review. If you still don’t get what you want, set up another review a few years later. And if you still don’t get what you want, set up an even bigger review. That is the record in electoral law. It is one of the most reviewed areas of law – and the Labour Government has just proposed another major review” – see: If at first you don’t succeed, order another electoral law review (paywalled).

Young also refutes Faafoi’s “fallacious” argument that another review is required because there’s been hardly any change to the electoral rules since the 1950s: “Since the 1950s, the voting system has changed to MMP, electoral advertising rules have been overhauled twice, election donation rules have been overhauled, MMP has been reconfirmed in a referendum, and four-year terms have been rejected twice by referendums in 1967 and 1990.”

Young says there’s also the problem that Labour doesn’t have a mandate for this review as there was no mention of this in last year’s election manifesto. She points out that Labour could’ve promised at election to implement the 2012 Election Commission recommendations – which Labour agrees with – but it didn’t.

RNZ political editor Jane Patterson has also raised questions about Labour’s process for this electoral review. The main question is whether Faafoi’s way of doing it will just allow the vested interests of politicians to prevail: “Another decade, another review of electoral laws – but in the end any fundamental decisions will end up in the hands of politicians. There will be a review, ministerial consideration and most likely a referendum, but the power to decide which changes will go ahead, and at what pace, will rest with Cabinet ministers and ultimately Parliament. The public would be right to be sceptical about leaving those with the most skin in the game to set the rules” – see: Electoral changes in the hands of the elected?.

Patterson points to the 2012 Electoral Commission review which the National-led Government to kicked to touch on the basis that the parties couldn’t find consensus. She suggests that “self-interest” might once again dominate this new process.

On the possible issue of state funding of parties, Patterson says: “the logistics would be challenging, for example, how it would be allocated? The number of seats a party has is currently used to divvy up a variety of resources, including money, but that model would run the risk of entrenching popularity, or failure, if replicated for election allocations. Bigger parties would end up with a larger share of campaign funding, and conversely a party that suffered a bad defeat the election before, would continue to be disadvantaged for the next one.”

Another RNZ article also raises concerns about the Government’s promised process – this time from other political parties like the Greens and National – see: Electoral law review sparks demands for faster changes, referendums.

In this, the Greens electoral reform spokesperson Golriz Ghahraman suggests that there have already been too many reviews that don’t result in reform. She says the Government should simply implement the 2012 Electoral Commission recommendations, and she’s advocating her own private members bill be passed, which would do this.

Ghahraman also criticises Labour’s promise of consultation and consensus, saying that this unnecessarily “politicises” the process and allows the “vested interests” to decide the rules of elections. She says that Faafoi’s proposal “will mean again that those already in power will get to pick and choose which bits they like and if they don’t agree then that will just sit there”.

In contrast, National’s electoral law spokesperson Chris Penk points out that there is already a parliamentary review currently looking at election rules: the Justice Select Committee review of the 2020 election, which is likely to result in recommended changes to things such as donations.

Penk is quoted saying: “National sincerely hopes that Mr Faafoi is not seeking to undermine that cross-party process by establishing a separate process in competition”. According to this article, “He also criticised the scope and process of the review”, because Faafoi has ruled out certain areas from being addressed in the review.

The Act Party is also critical of the review. Leader David Seymour is cited as questioning the unelected appointees to the new review panel: “Who on earth are these people on this panel, I didn’t vote for them… why should those people get to decide what our political system is?”

And on the issue of state funding of parties, Seymour says: “If taxpayers fund the political parties you really have an insiders closed shop. People should have to go out to the community and seek funding to contest political power. If they’re funded by the very institution they’re supposed to be holding accountable, that’s no longer true democracy.”

The NBR’s Brent Edwards raises the problem of other voices being excluded from the reform process: “Strangely, though, the government is not proposing to consult with political parties outside Parliament, those most likely to benefit, for instance, from lowering the party vote threshold from 5% to 4% or 3%” – see: Political parties already disagree over possible changes to electoral law (paywalled). He also reports that if consensus fails, Faafoi won’t rule out pushing changes through with their majority.

The issue of how any contentious changes are decided and implemented are dealt with by Jenna Lynch, who says “it may not happen until at least the 2029 election” – see: Voting age and taxpayer-funded campaigns shaping up to be contentious areas of electoral review.

Here’s Lynch’s main point about timing and processes: “Fundamental changes to our electoral system – like the voting age or the length of the parliamentary term – must either be passed by a supermajority in Parliament of 75 percent of MPs voting yes, or if the public vote ‘yes’ in a referendum. A referendum won’t be held on this in 2023, meaning these changes may not be in force until after 2029.”

The issue of a referendum for changes is also discussed in Claire Trevett’s MPs split on need to reform political donations rules, support for 4-year term. She cites National leader Judith Collins proposing that a referendum would be necessary on the big issues: “Elections belong to the people, they don’t belong to MPs. I personally believe that a four year term would be more useful, but it is absolutely up to the people.”

In this, Collins also questions whether donation rules need further reform, asserting that the rules are already clear: “There’s nothing wrong with the rules. I think the problem is, as we’ve seen from some of the prosecutions that have been taking place, that not everybody has been following those rules.” Similarly, “Act Party leader David Seymour said the current rules were working: and charges laid for alleged breaches of those rules were evidence of that.”

This point of view gets some back up on this from an electoral law specialist Andrew Geddis, who believes “if the current rules around transparency were adhered to they were fine”.

But Geddis also says that public confidence in the rules could benefit from such an investigation, and he makes some suggestions for reform: “changes could include lowering the current $15,000 disclosure threshold for party donations, and aligning it more closely to the $1,500 disclosure limit for electorate candidates. Another issue that needed addressing was the Electoral Commission had no enforcement powers to check the accuracy of donations returns. Often problems were only discovered if somebody reported it.”

Blogger No Right Turn is highly sceptical about the Government’s reform process, viewing it as simply a bad-faith attempt to push through an extension of the parliamentary term to four years, by embedding this contentious reform amongst in a pre-determined review that is stacked to produce a result to suit the Government – see: The electoral law review.

As well as representing self-interest, the blogger questions why the review process is designed to report back just after the 2023 election, meaning it’s too late to include a referendum at that election. He says: “I do not trust this process, and I do not trust politicians to make these decisions with party and self-interest corrupting the process entirely.”

Finally, is the announcement of this review just designed to show that the Government is being transformational when other efforts are failing? Heather du Plessis-Allan suggests that Labour needs to get back to basics: “The government is stretched. They’ve got too much going on. The few ministers in Cabinet who are capable are run off their feet. The public servants are at capacity with what they can do. The government needs to stop announcing things like this just to create the impression that they’re doing something. Frankly, I’d be happier if they scrapped all their planned reforms and did nothing but manage the pandemic because that is the most important and pressing problem right now.  And they’re not nailing it. Cancel the announcements, focus on the crisis, please” – see: Why is Kris Faafoi reviewing the electoral laws in the middle of a pandemic?.

 

Dr Bryce Edwards is Political Analyst in Residence at Victoria University of Wellington. He is the director of the Democracy Project.

This article can be republished under a Creative Commons CC BY-ND 4.0  license. Attributions should include a link to the Democracy Project.