Abstract
This article compares the legal regulation of ‘third parties’ as actors in electoral contests across four common law parliamentary democracies: Australia, Canada, New Zealand and the United Kingdom. In comparing the third-party regulatory regime to that of political parties, the article offers insights into what legislative provisions reveal about the ‘nature’ of third-party actors, the activities they perform and how the law conceives of them as electoral and political participants. The final section of the article compares the scale of third-party spending in all four democracies, and examines who is doing the spending and how this compares with political party spending. We argue that although regulation has intensified in some democracies and has normative justification in both electoral exceptionalism and egalitarian theory, it faces both constitutional and pragmatic hurdles.
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Notes
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 (UK). ‘Third party’ refers to participants in an election other than political parties and candidates, such as interest groups or individuals.
Particularly the Corrupt and Illegal Practices Prevention Act 1883 (UK) that targeted the cost and style of electioneering.
Third parties and pressure groups have always featured in American elections. Although political action committees (PACs) are regulated under the Bipartisan Campaign Reform Act, ‘501’ and ‘527’ organisations (political advocacy and charitable groups, so-named after the sections of the taxation code they are created under) are an increasingly important source of electoral expenditure and influence (Briffault, 2012, pp. 683–685).
Restrictions on spending to advance a particular candidacy date to the 1883 Act (see endnote 2). An advertisement disparaging the Labour Party in The Times newspaper by the Tronoh Mines company was found not to have offended local spending limits, as the legislation only targeted efforts to promote ‘a candidate at a particular election, and not candidates at elections generally’ (R v Tronoh Mines Ltd [1952] 1 All ER 697).
In the last decade, three Australian states and territories have introduced third party expenditure limits (New South Wales, the Australian Capital Territory and Queensland).
Electoral Act 1993 (NZ), s 204K. An overseas person can only be an ‘unregistered promoter’, that is, a small scale campaigner.
Canada Elections Act 2000, s 349.
Harper v Canada [2004] SCC 33 at para. 79.
Third party expenditure limits do currently apply in New South Wales and Australian Capital Territory elections.
Section 314AEB.
The source of this data is annual third party disclosure returns filed with the Australian Electoral Commission from 2006 to 2011.
Section 85(2).
Section 85(3)(c).
Schedule 8A, Part 1.
Section 3A.
Section 319.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 (UK), Schedule 8A, Part 2, s. 3.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 (UK) Schedule 8A, Part 2, s. 4.
Electoral Act 1993 (NZ), s. 204I. Inserted by the Electoral (Finance Reform and Advance Voting) Amendment Act 2010 (NZ). See Geddis, 2014, pp. 142–143.
Canada Elections Act 2000 ss. 2, 57. Electoral Act 1993 (NZ) s. 3B. Political Parties, Elections and Referendums Act 2000 (UK) Schedule 10, s. 3.
Section 314AEB.
Political Communications Act 2003 (UK) s 321(2).
Animal Defenders International v. The United Kingdom [2013] ECHR 362 (22 April 2013). See Rowbottom, 2013.
Australian Capital Television v Commonwealth (1992) 177 CLR 106.
Converted into sterling at August 2014 rates, UK third parties may spend up to £390 000 or 450 000 in 12 months, New Zealand third parties £156 000 in 3 months, and Canadian third parties £102 000 in a 5–6 week campaign.
Electoral Act 1993 (NZ) s. 206I; NZ Electoral Commission (2014, p. 24).
Bowman v United Kingdom 63 Eur. Ct. HR 175 (1998); Harper v Canada [2004] 1 SCR 827.
See, for example, the Canada Elections Act 2000 ss. 350, 351.
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Acknowledgements
The authors acknowledge funding from the Australian Research Council Discovery Project ‘Dollars and Democracy’ (Tham, Costar, Orr).
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Gauja, A., Orr, G. Regulating ‘third parties’ as electoral actors: Comparative insights and questions for democracy. Int Groups Adv 4, 249–271 (2015). https://doi.org/10.1057/iga.2015.2
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DOI: https://doi.org/10.1057/iga.2015.2