The Wikileaks Party’s actual and potential problems with campaign finance laws

The Age this morning reported that Julian Assange had been prevented by the Bank of America from directly donating to his own Wikileaks Party.

Assange asked that the $25,000 award [from Yoko Ono] be sent to the WikiLeaks Party, a separate legal entity to WikiLeaks. However, in April Ms Ono’s office said the Bank of America had refused to wire the money to the party’s account. …The Bank of America is one of a number of major financial institutions including Visa, American Express, Mastercard and Western Union that since December 2010 have refused to transfer funds to WikiLeaks.

But if the Labor campaign finance bill still before the Senate passes, Assange’s problem won’t just be the Bank of America. The Wikileaks Party would not be able to receive any foreign-sourced donation. Unless Assange still has an Australian bank account, he would not be able to donate his own money either.

Preventing ‘foreigners’ from expressing their views on Australian politics is bad enough. But preventing Australians, even candidates, from donating is an indefensible constraint on political freedom.


Until writing this post I had not checked out the Wikileaks Party website. Its donations page advises that:

Presently donations to the WikiLeaks Party are anonymous unless otherwise requested

Unfortunately, that’s wrong. Until their registration as a political party is confirmed they are a ‘third party’, and must disclose donations over $12,100 (unless Labor’s bill gets through, in which case it will be donations over $1,000).

Campaign finance threat not over

The plan by the main political parties to award themselves large amounts of taxpayers’ money showed such naked self-interest that the public awoke from its general indifference to campaign finance law, and forced the Liberals to withdraw their support.

But there was an underlying political logic behind the Liberal position. They were trying deal with a bill to lower the donation disclosure threshold from $12,000 to $1,000 that has already passed the House of Representatives and could still pass the Senate before the election. They feared that this would have a disproportionate effect on their supporters, who for social, employment, business or political reasons don’t want their names appearing on the AEC website. Labor’s main financial backers, the unions, are obviously quite open about their support.

Labor’s problem is less that their supporters don’t want their names disclosed than that too few people want to give them money under any circumstances. Hence their plan for so-called ‘administrative funding’ to finance them year-to-year. They offered the Liberals a higher disclosure threshold in exchange for this taxpayer-financed bail-out. The deal was done, but has now been broken.

Now Julia Gillard is threatening to go back to the original bill. I wrote a lengthy critique of it back in 2011. Around that time I also wrote op-eds that more briefly explain some of the issues:

* why the idea that a $1,000 threshold is needed to stop undue influence is ridiculous; the only plausible purpose of such a law is to deter donors;

* the xenophobic attempts to restrict the influence of ‘foreigners’;

* and the unjustifiable measures to harass NGOs.

There is almost nothing to be said in favour of this bill, and it would be sad day for Australian democracy if it is passed.

Campaign finance reform back on

I had hoped that Labor’s long-stalled campaign finance reforms would be left behind in the rush of legislation before the election. But that has proved to be an over-optimistic view, and media reports this morning suggest that they have done a deal with the Coalition to get an amended version of the legislation through.

Essentially, it looks like the parties are awarding themselves more public funding and reducing the donations disclosure threshold from $12,100 to $5,000. Labor had wanted to lower the disclosure threshold to $1,000. While I don’t think there is any need to change the disclosure threshold, $5,000 is certainly a lot better than $1,000.

Apart from the problems around disclosure, the threshold is (for no obvious reason) used for other purposes in the legislation, such as the total amount of spending required for third parties to have to enter the campaign finance system. If they spend more than the threshold, they face complex reporting requirements.

Here I think $5,000 is too low, even on the arguments put by advocates of tighter campaign finance laws. Small-scale activism leading to a $5,000 spend on election issues poses no plausible threat to the integrity of government or to political fairness. To the contrary, having the AEC harass minor activists reduces political fairness.

Union and business political activity under threat in Queensland

One of my main interests in campaign finance law has been the increasing attempts by political parties to limit ‘third party’ opposition. Governments dislike the campaigns being run against them by interest and issue groups, and since 2006 a series of laws have been passed to obstruct or discourage third party political activity.

Queensland went down this path in 2011, introducing laws restricting political donations from and to third parties, and limiting their spending during campaign periods.

And now there is a new attempt to impose yet more controls. This time the Queensland government proposes using industrial rather than electoral law to implement its policy. This means that it will affect unions and employer associations, but not other third parties. In practice, unions and business tend to be the biggest-spending third parties.

If this bill passes, Queensland unions and employer groups will have to run Electoral Commission ballots if they want to engaged in political expenditure of $10,000 or more in a year. The political expenditure is defined broadly to inlcude a political cause of belief, and not just partisan campaigning (full definition below the fold). Presumably this would cover routine unions campaigns such as those currently being run by the Queensland Council of Unions.

For the expenditure to be approved, 50% of eligible voters must cast a ballot, and of those more than 50% must approve. The cost of the ballot has to be covered by the organisation proposing the expenditure.

Effectively this law imposes huge decision costs on unions and employer groups, since especially mass membership groups like unions will have to spend a lot just informing their membership of the issues. Otherwise, they are unlikely to get the 50% turnout required. The inevitable (and presumably intended) result is that there will be many fewer third party campaigns in Queensland.

The bill is supported by the minister with the usual rhetoric about transparency and accountability. But members of political organisations do not necessarily want to be involved in the detail of campaigns or activism. Joining is an act of delegation, paying others to sort out the detail of a cause or interest the member supports.

Political campaigns are normal business for unions and employer groups. If their members are unhappy with these campaigns they can say so, and vote out the leadership or leave the organisation if they are not satisfied with the leadership’s response. This is all the accountability that is required.

Read More »

Business groups again outspend left-wing third parties

The annual AEC third party political expenditure returns were released this morning. Annual reporting was introduced by the Howard government with the pretty express purpose of harassing left-wing third parties such as green groups and GetUp!. However it catches industry groups as well, and as the table below for the third successive year they have outspent left-wing groups.

The law does not require disclosure of which issues were pursued, but the main industry players for 2011-12 were industry groups involved in the carbon tax ($9.3 million) and and pokies regulation ($4.3 million). (Updated noon 1/2 to correct misclassified expenditure).

Political expenditure disclosure laws are very complex, including a requirement for disclosure of spending exceeding $11,900 a year on ‘the public expression of views on an issue in an election’. So third parties operating during 2011-12 were required to forecast which issues would be issues in the 2013 election, which we now know will be on 14 September. As it is very hard to predict what will be an issue that far out (quite possibly, not pokies in the end) there is a basic rule of law problem with this provision.

Under the current system, these complexities are largely restricted to major players which spend $11,900 plus a year. But in bill before the parliament, which the government this week announced it would try to pass by 30 June, the threshold for disclosure would drop to $1,000 in any six month period. This will catch many small political groups run by volunteers, few of whom will have any idea that their trivial political activity could land them in serious legal trouble.

Queensland Labor could protect its funding, but not its seats

After yesterday’s disastrous electoral result, one decision of the former Queensland Labor government is looking good, at least from their perspective. This was the change to the public election campaign funding regime.

Previously Queensland, like other jurisdictions, had a pay-per-vote system of election public funding (about $1.65 per vote in the QLD case). In the reforms legislated last year, this was changed to a system of reimbursement, up to a maximum of about $5.3 million. The formula works like this:

All of the first 10% of electoral expenditure
75% of the next 80% of electoral expenditure
50% of the remaining 10% of electoral expenditure

I’m not sure how much Queensland Labor spent this time around, but presumably they will walk away with several million dollars in public funding, while the old system would have netted them $1.2 million on yesterday’s vote.

The main argument for the new system is that it introduces a counter-cyclical element to the system. With donations tending to follow popular support, parties on the downward part of their cycle are dealt a double blow. This system of public funding lets them mount a decent-sized campaign (I’m not sure how big the Queensland Greens or Katter Party campaigns were, but this system also helps small parties, provided they reach a 4% threshold).

However, as the NSW and QLD elections demonstrate there is only so much money can do. From a campaign finance theory perspective, each campaign was a fairer and more even contest than it might otherwise have been. But that did not stop two of the biggest defeats in Australian electoral history.

The pattern of growing information regulation

There has been plenty of negative comment on the Finkelstein review proposal to impose federal regulation of the media. But so far as I have seen this commentary has not focused on how it fits a pattern of increasing central regulation of, or proposed regulation of, information flows in Australian society. Further examples here:

* National curriculum. One of the oddities of Australian political culture is that we have always – and the negative reaction to Finkelstein suggests still – been sceptical of government media regulation, but quite unconcerned about government control of what is taught to the young people who must attend school for 10 to 12 years. Many complain about the content of that curriculum – but think that the wrong people are in charge, not that there is too much centralisation of curriculum in the first place.

* The mechanism now exists for the federal minister of education to impose ‘teaching and learning standards’ that could control what universities teach.

* While the federal proposals for controlling 3rd-party opposition to the government are much milder than the draconian NSW regime, it’s highly likely that we will see more controls introduced during the current parliament. Was Wayne Swan’s speech today softening us up for banning billionaires from buying media space when the government attacks them?

* Senator Conroy’s internet filter seems to be on hold, and while not aimed at political speech it would create a mechanism for regulating it at a future time.

Overall, I think technological changes mean that we are in a better free speech situation now than 15 or 20 years ago. It is important to keep things in perspective. But it is hard to see that the at best very minor gains from the proposed or actual centralisation of information control in Canberra are worth the risks.