Not bribery or conspiracy, but power attached to big spending

Those who want limits on election influence might be disappointed, says Max Atkinson

THE State Government plans to release the final report of the Tasmanian Electoral Commission before Christmas. When it does, many people will want to know whether it will limit the use of private wealth to influence elections.

They may be disappointed because the Liberal Party submission argues no reforms – not even transparency reforms – are needed. No one will be surprised given they attracted $4,168,930 in donations in the March 2018 election, while Labor received $1,128,447. The Government may, however, accept some reforms recommended by the TEC, an independent statutory body headed by three distinguished public servants. Its interim report, issued in December 2018, proposed a suite of transparency reforms, with caps on the sums candidates and parties can spend on election campaigns. But it also advised against caps on third party donations. Which means wealthy Tasmanians, as well as corporations, trade unions, trade associations, lobbies, think tanks and civic action groups of all kinds can use their wealth to distort the electoral process.

The TEC interim proposals, and those from the University of Tasmania’s Institute for the Study of Social Change, are welcome.

The special treatment of third-party donors is, however, another matter, although one cannot blame the TEC because it was clear from the outlet that the Government would not accept limits. Likewise with the ALP and its state branch, neither of which put in a submission. They do, however, support reforms similar to those recommended by the TEC.

In these circumstances it is worth asking what a gold standard for reform might look like. It would begin with a distinction between corruption and distortion, because there is a compelling case that the real problem is not bribery, conspiracy or intimidation in the dark, but a systemic distortion of the electoral process in broad daylight.

The distortion is due, not to corrupt actions, but to the expectations aroused when wealthy donors elect parties which in turn favour their interests. This symbiosis explains much that is wrong in modern Western democracies.

Together with doctrines of party unity, it is one reason for the loss of confidence in politicians generally.

The distortion is in the political power inherent in the ability to spend large sums to control and focus campaign debates, using expensive TV and newspaper ads, repeated ad nauseam over the final days.

It shapes the public debate and takes the spotlight off an incumbent party’s record in office. It is also the politics of populism, which aims to manipulate opinion and incite

passions by appealing to greed, fear and anger. The rationale for this privileged treatment is that third parties must be free to share in the political life of the community, a claim which no one who values free speech would deny.

It does not follow, however, that wealthy third parties have a right to spend unlimited funds on protecting their interests just because they have always done so.

What, then, is the basis for treating this privilege as a ‘right’? It cannot be a legal right because there is no constitutional principle, no principle of the common law, and no statutory instrument to justify the claim. One could, of course, argue it ought to be a fundamental or natural right, like the right to life, liberty and the pursuit of happiness, but that seems ridiculous.

Moreover, claims of a right must rest on arguments of principle; otherwise, they are merely a rhetoric for selfinterest. The principles must be consistent with those which justify rights no one disputes, such as rights created under laws which are democratic, just and fair.

There are other problems with the Interim Report: it does not deal with promises to parties or candidates to donate funds after the election. The report should treat these as gifts made at the time. Secondly, the TEC says realtime disclosure means two weeks after the gift is made but fails to ban donations between then and the election, leaving a window of opportunity one can drive through with a hay cart full of money.

Finally, the Interim Report does not consider the freedom of parties and candidates to liaise with donors to have the money provided (or promised) at times convenient to campaign strategy, to lock in prime TV slots, newspaper ads and good poster sites. Despite the ruling of the US Supreme Court in the Citizens United case, this is still a grave criminal offence in the US.

One hopes the final report will have used the extended time to address these matters.