Efr Submission

Submission on the Electoral Finance Reform Issues Paper

26 June 2009

Jesse Wilson Jonathan Orpin Stephen Whittington Yogesh Patel

―[Representative democracy] means ultimately government by the free public opinion of an open society, the effectiveness of which, as events have not infrequently demonstrated, is undoubted. But public opinion, in order to meet such a responsibility, demands the condition of a virtually unobstructed access to and diffusion of ideas. Parliamentary government postulates a capacity in men, acting freely and under self-restraints, to govern themselves; and that advance is best served in the degree achieved of individual liberation from subjective as well as objective shackles [...] This constitutional fact is the political expression of the primary condition of social life, thought and its communication by language. Liberty in this is little less vital to man's mind and spirit than breathing is to his physical existence. As such an inherence in the individual it is embodied in his status of citizenship.‖ Switzman v Elbing [1957] SCR 285 at 306 per Rand J

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26 June 2007 By email: [email protected]

[email protected] [email protected] [email protected] [email protected]

Ministry of Justice WELLINGTON

Electoral Finance Reform

We welcome the opportunity to make a submission in relation to the Ministry of Justice‘s Issues Paper, Electoral Finance Reform, dated 22 May 2009. While we believe that many aspects of the Ministry of Justice‘s Issues Paper provide a helpful starting point for the development of new electoral laws, we also respectfully consider that certain aspects of the discussion in the Issues Paper are ill-considered and contemplate measures that would be likely to undermine important rights and freedoms. For the reasons set out in this submission, we hope that the government will conclude that many of the restrictions on political speech discussed by the Issues Paper are unjustified and that it will not include such measures in its Proposal Document. We also hope that the government will take this opportunity to reconsider the arbitrary restrictions on private political advocacy on radio and television. Notwithstanding our criticism of a number of parts of the Ministry of Justice‘s Issues Paper, we believe that the consultative process with respect to the review of New Zealand‘s electoral finance laws is commendable. This submission is made in our personal capacities only. Please contact us if you have any queries in relation to the above. Yours sincerely, Jesse Wilson / Jonathan Orpin / Stephen Whittington / Yogesh Patel

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TABLE OF CONTENTS 1.

Introduction

6

2.

Guiding principles

7

Principle 1: Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form 7 Principle 2: Elections should be free and fair

15

Principle 3: Legal barriers to public participation in public debate and parliamentary democracy should be minimal 18 Principle 4: The election laws should protect the reasonable privacy interests of citizens 18 Principle 5: The use of public monies in connection with the electoral process should be transparent 19 Principle 6: There is a public interest in the disclosure of donations to political parties and candidates if those donations raise the possibility of quid pro quo by virtue of their size and nature 20 Principle 7: Electoral laws should be applied impartially and expeditiously so as to ensure that participants in the electoral process are held accountable according to law 21 Principle 8: In accordance with the rule of law, it should be possible to ascertain with fair certainty the meaning, scope, and effect of the electoral laws 21

3.

Summary

23

Comments on the Ministry of Justice’s proposed guiding principles

24

The “equity” and “level playing field” expressions are ill-considered

24

The concern that some political ideas will be “drowned out” in the absence of regulation is unfounded 35 The concern that regulation is required to control the “manipulative” effects of expensive political advertising is misguided 37

4.

Transparency

40

Disclosure of donations

41

Anonymous donations should be permitted via the protected disclosure regime 3

41

Summary

44

5.

Limits on donations

45

6.

Public funding of political parties and candidates

46

7.

The exclusion of express private political advocacy from radio and television is unjustified 46

8.

Spending limits on political parties and candidates

48

There is no convincing evidence that the absence of spending limits on political parties or candidates would undermine the integrity of the electoral process 48 There is no convincing evidence that campaign expenditure is highly determinative of election outcomes 49 Spending limits may have pro-incumbent consequences

54

Summary

55

9.

Spending limits on private political advocacy

58

10.

The meaning of election advertising

60

The rationale of preventing “exploitation” of gaps in the definition of “election advertisements” is a recipe for comprehensive regulation 61

11.

The distinction between election advocacy and issue advocacy is blurry at best

63

Media-specific exemptions are arbitrary

70

Summary

73

Public disclosure of names and addresses

74

Requiring disclosure of a speaker’s identity is a form of content regulation that limits freedom of speech 75 There is no compelling state interest that justifies requiring speakers to reveal their name and address 76 There are many legitimate reasons why one may wish to speak anonymously

79

There is a long and honourable tradition of anonymous political speech

80

Summary

81 4

12.

Reflections on the Electoral Finance Act 2007

82

The failures of the Electoral Finance Act reflected flawed premises as well as poor drafting 82 The harms that were asserted to justify the Electoral Finance Act were never adequately explained or demonstrated by convincing evidence 83 Appendix One: Authors

85

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1.

Introduction

1.1.

One of the most important rights guaranteed by a free society is the right to freedom of expression, including the freedom to criticise politicians and advocate change. The publication of such expression takes myriad forms in an advanced society: from books and pamphlets to websites and documentary films. Governmental restrictions on how many books or pamphlets can be published and distributed or how much production expense can be devoted to websites and documentary films limit freedom of expression. Special restrictions on how much money citizens are allowed to spend developing, publishing, and disseminating political advocacy strike at the core principle that citizens should be able to speak freely about public affairs and publish their views about the government and candidates seeking political office.

1.2.

Given the fundamental character of the right in question, the rationales put forward to justify restrictions on political speech prior to an election warrant careful scrutiny, especially in view of the historical tendency for such laws to serve the interests of incumbent politicians. It would be especially concerning if the new electoral regime combined restrictions on private political advocacy with the introduction of public funding for political parties, higher spending limits for politicians than citizens, and the maintenance of a system that excludes private political advocacy from the airwaves while mandating special broadcasting privileges to political parties. That such measures might be introduced under the banner of ―the level playing field‖ provides an insight into the apparent elasticity of that concept and its inadequacy as a basis to justify limits on fundamental rights.

1.3.

It is also appropriate to carefully consider the potential machinery provisions necessary to enable a system of restrictions on the publication of advocacy (if such there must be) to operate. New Zealand‘s experience under the Electoral Finance Act 2007 demonstrated the operational problems associated with a relatively comprehensive regulatory system. It would be possible to improve on the workability of the system by creating a number of exceptions from the reach of the campaign finance laws. Such exceptions are likely to be arbitrary and would also raise questions about why a set of rules that are said not to unduly restrict political advocacy by ordinary citizens are nonetheless thought sufficiently burdensome to necessitate exceptions for specific institutions or media formats. However, it is difficult to design logical rules for an illconsidered game.

1.4.

A more principled approach, and one which we hope the government will consider, would be to return to first principles and allow citizens to publish their political views without restriction. This would allow the electoral laws to focus on more important matters such as ensuring the integrity of the electoral process, preventing corruption, 6

and ensuring appropriate disclosure of large donations to candidates and political parties. 2.

Guiding principles

2.1.

We agree with many of the Ministry of Justice‘s proposed ―guiding principles‖ for reforms to New Zealand‘s electoral finance laws. However, we disagree with the Ministry of Justice‘s approach in two respects: First, the Ministry of Justice‘s proposed guiding principles do not take account of several important principles that ought to be taken into account (e.g., the principle of the rule of law which requires that it should be possible to for citizens to ascertain with fair certainty the meaning, scope, and effect of the electoral laws). Second, several of the Ministry of Justice‘s proposed guiding principles are unnecessary or could be stated more succinctly (e.g., the principle of ―Equity‖, which is said to mean that ―The electoral contest should be fair‖, can, in our view, be restated in terms of the principle: ―Elections should be free and fair‖).

2.2.

Accordingly, we set out below the eight principles which we submit should guide the process of reforming New Zealand‘s electoral finance laws, together with some discussion of the implications of those principles for electoral finance regulation.

Principle 1: Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form 2.3.

Section 14 of the New Zealand Bill of Rights Act 1990 (Bill of Rights) affirms that ―everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.‖ It has been accurately observed that ―it is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression‖ 1 and that freedom of expression is the ―the first and last trench in the protection of liberty.‖2 The right to freedom of expression is as important for the audience as the speaker, as Justice Marshall, joined by Justice Brennan, eloquently explained in his dissenting judgment in Kleindienst v Mandel:3 The freedom to speak and the freedom to hear are inseparable; they are two sides of the same coin. But the coin itself is the process of thought and discussion. The activity of speakers becoming

1

Edmonton Journal v Alberta (Attorney General) [1989] 2 S.C.R. 1326 at 78 per Cory J. Hosking v Runting [2005] 1 NZLR 1 at 64 per Anderson J (dissenting). 3 408 US 753 (1972) (concerning the decision of consular officials to bar a Marxist academic from entering the United States to appear at conferences and lectures). Marshall and Brennan JJ concluded that they were ―convinced that Americans cannot be denied the opportunity to hear Dr Mandel‘s views in person because their Government disapproves of his ideas.‖ 2

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listeners and listeners becoming speakers in the vital interchange of thought is the means indispensable to the discovery and spread of political truth. Its protection is a fundamental principle of the American government. The First Amendment means that the Government has no power to thwart the process of free discussion, to ―abridge‖ the freedoms necessary to make that process work.

2.4.

In the context of proposals to limit freedom of expression in the context of campaign finance regulation, we submit that four aspects of the right to freedom of speech bear emphasis: First, regulations that limit the amount of money that can be spent on political speech implicate the right to freedom of expression affirmed by section 14 of the Bill of Rights. Second, it is important to distinguish the principle of freedom of speech (i.e., everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind) from the beneficial effects for societies that respects freedom of speech. While not all protected speech is admirable (indeed, sometimes it is loathsome), it is necessary to respect the principle of freedom of speech if one hopes to preserve the desirable effects of that principle. Third, freedom of expression may be subject, under section 5 of the Bill of Rights, to such reasonable limits as can be demonstrably justified in a free and democratic society. Demonstrable justification requires that freedom of expression only be limited in the pursuit of pressing and substantial public interests and that the harms invoked as justifications for limiting freedom of speech ought to be properly explained and evidenced. Fourth, the right to freedom of expression is closely connected to the right to associate with others of a like mind to advocate for change and to encourage others to associate with you for that purpose.

2.5.

We consider each of these matters in turn.

REGULATIONS

THAT LIMIT THE AMOUNT OF MONEY THAT CAN BE SPENT ON POLITICAL SPEECH

IMPLICATE THE RIGHT TO FREEDOM OF EXPRESSION AFFIRMED BY SECTION

14

OF THE

BILL

OF

RIGHTS. 2.6.

Regulations that burden or limit the exercise of the right to freedom of expression implicate the right affirmed by section 14 of the Bill of Rights. For example, restricting the amount of money that a person may spend on publishing a pamphlet limits freedom of expression for both the author of the publication and its recipients. The Crown Law 8

Office acknowledged as much in its opinion concerning the consistency of the Electoral Finance Bill 2007 with the Bill of Rights. 4 This legal proposition has been confirmed by the highest appellate courts in Australia, 5 Canada,6 and the United States.7 2.7.

Nevertheless, some proponents of campaign finance regulation continue to assert that a limitation on the amount of money that a person may spend when expressing an idea is not a limitation on the expression of ideas. 8 With respect, such a claim is unsustainable as a matter of practical reality as well as being incorrect as a matter of law under the Bill of Rights. The direct connection between a limitation on the amount of money expended on the expression of ideas and the limitation of that expressive act was explained in the following unanimous passage of the US Supreme Court:9 A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.

2.8.

The Supreme Court went on to observe in a footnote to its per curiam opinion: 10 Being free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline.

2.9.

The limitation on freedom of expression associated with restrictions on spending for the purposes of political advocacy is also readily apparent when evaluated in the context of other hypothetical limits on the ability of citizens to express themselves. Consider, a person who wants to publish a pamphlet. One way to print sufficient copies would be to pay for printing services. However, if the person owned a printer or press, another option would be to print them

4

―Electoral Finance Bill: Consistency with the New Zealand Bill of Rights Act 1990‖, 26 June 2007, at paragraph 8 (―By limiting electoral advertising and/or imposing conditions on electoral activity, all of these provisions constrain freedom of expression in terms of s 14 of the Bill of Rights Act‖) available at http://www.justice.govt.nz/bill-ofrights/bill-list-2007/e-bill/electoral-finance-bill.html. 5 Australian Capital Television Pty Ltd v Commonwealth (1992) 175 CLR 1. 6 Libman v Quebec (Attorney General) [1997] 3 S.C.R. 569 at paragraph 35: ―The Act accordingly places restrictions on such persons who, unlike the national committees, cannot incur regulated expenses during the referendum period in order to express their opinions and points of view. This clearly infringes their freedom of political expression. There is no doubt that freedom of expression includes the right to employ any methods, other than violence, necessary for communication.‖ 7 Buckley v Valeo 424 US 1 (1976). 8 Ibid at 19. 9 Ibid at 19. 10 Ibid at footnote 18.

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herself. Presumably no one would dispute that a government restriction on the ability to use one‘s own printer would constitute a direct limitation on the right to freedom of expression. In the same way that a law restricting the free use of private presses would limit the right to freedom of expression, so too would a law restricting the ability of a person to pay the owner of a private press to publish his book. Suppose, furthermore, that the government passed a law requiring its approval for the publication of more than 100 copies of a book containing political advocacy or a political book consisting of more than 100 pages. Such a law would constitute an infringement on free speech because it limits the number of copies or pages in order to control political speech. A law prohibiting a film maker from spending more than a certain amount of money producing a documentary film that criticised the qualifications and positions of a politician running for office would limit the rights of the film maker and the audience to freedom of expression. 2.10.

Accordingly, we submit that the international jurisprudence to the effect that limitations on spending money on political speech implicate the right to political speech is logical. As Scalia J explained in McConnell: ―Where the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore.‖11

IT IS

IMPORTANT TO DISTINGUISH THE PRINCIPLE OF FREEDOM OF SPEECH FROM THE BENEFICIAL

EFFECTS FOR SOCIETIES THAT RESPECTS FREEDOM OF SPEECH

2.11.

A common argument by proponents of limitations on political speech is that the limitations are necessary to further the ultimate objective of freedom of speech. It is argued that democratic value will be strengthened and the quality of public debate enhanced if the right to political speech is subject to certain limitations. Professor Owen Fiss, a leading proponent of speech regulation, exemplifies this approach:12 A commitment to rich public debate will allow, and sometimes even require the state to act in these ways, however elemental and repressive they might at first seem. Autonomy will be sacrificed, and content regulation sometimes allowed, but only on the assumption that public debate might be enriched and our capacity for collective self-determination enhanced. The risks of this approach cannot be ignored, and at moments they seem alarming, but we can only begin to evaluate them when we weigh in the balance the hidden costs of an unrestricted regime of autonomy.

11 12

McConnell v Federal Election Commission 540 US 93 at 252 (2003). Owen Fiss, ―Free Speech and Social Structure‖ (1986) 71 Iowa L. Rev. 1405 at 1415.

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2.12.

We believe that the conceptual flaw in this approach has been cogently expressed by Professor Charles Fried in this way: 13 The error Fiss commits right at the outset is to mistake an effect of the principle for the principle itself. The First Amendment protects a liberty -- liberty of expression -- and it is an effect of this liberty that there is wide and uninhibited discussion of political matters. Similarly, property rights enable markets and the efficiencies they entail. But property is not respected just because of the effect, economic efficiency; rather the effect follows because property rights are respected in principle.

2.13.

A similar point has been helpfully expressed by Bernard Robertson, the editor of the New Zealand Law Journal, who observes: 14 Once one assumes the ability to identify some purpose to an institution such as freedom of expression one opens the door to the Fatal Conceit, a line of thinking which goes like this: The purpose of X is Y; we can identify occasions when X does not fully pursue Y; therefore we should intervene to make X better pursue Y. […] In the case of freedom of speech we have, first, the marketplace of ideas. This is a parallel with the marketplace for goods and services and is said to encourage innovation and so on. But the free market is simply an aspect of a free society. Likewise the marketplace of ideas is a consequence of, not the purpose of freedom of speech. It is a spin-off.

2.14.

We submit that Professor Fried and Mr Robertson are essentially right: the positive consequences associated with freedom of speech are the consequences of respecting everyone‘s right to speak their mind.

FREEDOM OF EXPRESSION MAY BE SUBJECT, UNDER SECTION

5 OF THE BILL OF RIGHTS,

TO SUCH

REASONABLE LIMITS AS CAN BE DEMONSTRABLY JUSTIFIED IN A FREE AND DEMOCRATIC SOCIETY

2.15.

Under section 5 of the Bill of Rights, the rights affirmed by the Act may be subject only to such reasonable limits as can be demonstrably justified in a free and democratic society. In our view, the justifications for limit restrictions on spending, burdens on the exercise of political speech, and the exclusion of private political speech from certain media ought to be clearly explained and the asserted harms should be properly explained and demonstrated. Given that the right to freedom of speech is clearly implicated by many of the proposals contemplated by the Issues Paper, we believe that the persuasive burden rests on proponents of such restrictions. We believe that this approach is consistent with the principles underpinning the Bill of Rights, which the White Paper made clear:15 The third important feature of the provision is that is puts the burden of persuading a court that the provision justifies a law or other government action which is presumptively in breach of a right in the Bill on the Government or the other party relying on the law or action.

13

Charles Fried, ―The New First Amendment Jurisprudence: A Threat to Liberty‖ (1992) 59 U. Chi. L. Rev. 225 at 226–227. 14 Bernard Robertson, ―Freedom of Speech‖ [2007] NZLJ 197 at 197–198. 15 Palmer, A Bill of Rights for New Zealand (1985) at 10.29.

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2.16.

The New Zealand jurisprudence under section 5 of the Bill of Rights has largely followed the approach of the Canadian Supreme Court under section 1 of the Canadian Charter of Rights and Freedoms. 16 The first question is whether the restrictions are directed towards a pressing and substantial governmental objective. This principle was expressed as follows by the Supreme Court of Canada in R v Chaulk:17 The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right or freedom; it must relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

2.17.

If the restrictions are designed to pursue a pressing and substantial objective of sufficient importance to override the right to freedom of expression, the next issue is whether the restrictions are reasonable, which requires that the restrictions must:18 ―be ‗rationally connected‘ to the objective and not be arbitrary, unfair or based on irrational considerations‖; ―impair the right or freedom in question as ‗little as possible‘‖; and ―be such that their effects on the limitation of rights and freedoms are proportional to the objective‖.

2.18.

In the first place, we submit that these principles require that the justifications for restrictions on spending, burdens on the exercise of political speech, and the exclusion of private political speech from certain media ought to be clearly explained and the asserted harms should be properly explained and demonstrated.

2.19.

For the reasons elaborated in this submission, we also consider that some of the justifications offered in support of restricting freedom of expression do not constitute pressing and substantial governmental objectives. In particular, we submit that there is no pressing and substantial state governmental objective in restricting the ability of some citizens to criticise politicians or engage in robust advocacy with respect to public policy in order to somehow ―equalise" the relative voices of other citizens. Moreover, we submit that some justifications offered in support of restricting freedom of expression during the election period (not least, the argument for ―equalising‖ influence or expression) do not satisfy the tests for reasonable justification due to their incoherence, arbitrariness, and reliance on irrational considerations. Furthermore, we submit that certain of the objectives of restricting political expression during campaign periods could not be achieved without a restrictive and comprehensive system of speech regulation of a kind that is not justifiable in a free and democratic society.

16

See, e.g., R v Oakes [1986] 1 SCR 103. R v Hansen [2007] 3 NZLR 1 (SC). [1990] 3 SCR 1303 at 1335. 18 Ibid at 1335–1336. 17

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2.20.

It is also helpful to make some preliminary observations on the overseas case law. We acknowledge that there are a number of cases from Canada and the United Kingdom which assist the argument of proponents of campaign spending restrictions. There are also cases from the United States and Australia that are of assistance to the opponents of such restrictions. Nevertheless, we would make the following comments: The Canadian and United Kingdom cases that are helpful to the arguments made by supporters of campaign spending restrictions explicitly defer to legislative judgments about the policy rationales for such restrictions19 (though we acknowledge that there is also judicial commentary that suggests substantive agreement with those legislative policy judgments as well as mere deference); We consider the Canadian decisions upholding campaign spending restrictions should not be followed because the scrutiny that they apply to limitations on freedom of expression is not sufficiently exacting, their rationales are conceptually flawed, the empirical basis for those rationales is weak and in some cases mere assertion, there are well argued dissenting judgments, and there are a number of earlier decisions from lower courts20 which make well reasoned arguments to overturn such restrictions; The position in the United Kingdom has not been conclusively settled with respect to the Political Parties, Elections and Referendums Act 2000. However, we acknowledge that the tenor of Animal Defenders International21 suggests that it is more likely than not that those provisions would be held to satisfy the principles laid down in Bowman;22 We consider the United States23 and Australian24 decisions make powerful and principled arguments, and correctly note some of the conceptual and

19

See, e.g., Harper: ―The difficulties of striking this balance are evident and, given the right of Parliament to choose Canada‘s electoral model and the nuances inherent in implementing this model, a court must approach the justification analysis with deference‖; and Animal Defenders: ―Government and Parliament have recently examined with some care whether a more limited ban could be made to work and have concluded that it could not. The solution chosen has all-party support. Parliamentarians of all political persuasions take the view that the ban is necessary in this democratic society. Any court would be slow indeed to take a different view on a question such as this.‖ 20 See, e.g., National Citizens’ Coalition Inc v Canada (Attorney General) (1984) 11 DLR (4th) 481 (Alta. Q.B) and also the judgments of the Alberta Court of Queen‘s Bench and the Alberta Court of Appeal in Harper v Canada: (2001) 93 Alta LR (3d) 281(2002) 14 Alta LR (4th) 4 and 21 R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 2 WLR 781. 22 Bowman v United Kingdom (1998) 26 EHRR 1 (ECHR). 23 See, e.g., Buckley v Valeo 424 US 1 (1976). 24 Australian Capital Television Pty Ltd v Commonwealth (1992) 175 CLR 1.

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empirical weaknesses of the rationales for certain restrictions on paid political advocacy; As with other subjects, judicial approaches to campaign finance restrictions are not static. Accordingly, we think it is possible that in time the Canadian and United Kingdom courts will conclude that some of their earlier decisions gave insufficient weight to freedom of expression and that the rationales for those decisions were weak; and The real question is not how far the government can limit speech before a court would conclude that the limits were not demonstrably justified in a free and democratic society. The flip-side of judicial deference to legislative judgments is that the legislature should exercise its judgment in a considered way. To the extent that the Ministry of Justice and the government contemplate limitations on political speech during election periods, careful consideration should be given, among other things, to the rationales of such restrictions, whether there is any evidence to support those rationales, and what the consequences of such limitations are likely to be. THE RIGHT TO FREEDOM OF EXPRESSION IS CLOSELY CONNECTED TO THE RIGHT TO FREEDOM OF ASSOCIATION

2.21.

Fourth, the right to freedom of expression is closely connected to the right to associate with others of a like mind to advocate for change and to encourage others to associate with you for that purpose.

2.22.

It is not uncommon for those who wish to express ideas to seek out other like-minded people. Some of those groups work together to jointly develop and articulate ideas on certain political issues of the day (e.g., lobby groups). By working together in the pursuit of a common objective, those individuals hope that their advocacy may be more effective because they have pooled their resources. As those organisations become larger (often by virtue of the success of their previous advocacy efforts in encouraging new members to join, i.e., the process of ―speakers becoming listeners and listeners becoming speakers‖), 25 it may also be helpful for them to incorporate to obtain the benefits of legal personality.

25

408 US 753 (1972).

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2.23.

The relationship between freedom of expression and freedom of association was explained by the United States Supreme Court in National Association for the Advancement of Coloured People v Alabama:26 Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny. (citations omitted)

2.24.

One of the consequences of individuals pooling their efforts and resources in an advocacy organisation is that the capacity of that organisation to publish ideas widely and create publications that examine an issue in depth is greater than the individuals could have managed alone. Indeed, that is, in part, their purpose. Nevertheless, this beneficial consequence of people in concert causes some to fear that such organisations will spend too much money publishing ideas. Their concern is that such organisations constitute ―big money‖27 and therefore ought to have their advocacy curtailed. 28 We consider later in this submission whether such a concern makes sense and whether it provides a demonstrably justifiable basis for limiting free speech. In any event, we note that freedom of speech and freedom of association are closely connected and mutually reinforcing principles of a free society. 29

Principle 2: Elections should be free and fair 2.25.

As noted above, we believe that the Ministry of Justice‘s second principle, ―equity‖, should be better restated in terms of the principle: ―Elections should be free and fair‖. Formulated in this way, the principle captures the essence of the Ministry‘s explanation of that principle (i.e., ―the electoral contest should be fair‖).

2.26.

In our view, fairness in the electoral context should be understood as procedural rather than substantive fairness (if that term is interpreted to mean that the candidates have equal resources as opposed to equality before the law). Elections, after all, are a contest

26

357 US 449 at 460–461 (1958). For example, the Rt Hon Helen Clark has talked of ―just how much big money was sloshing around for the National Party in the last election campaign‖ (Hansard, Questions for Oral Answer, 4 December 2007). 28 For example, Doug Woolerton has stated that ―the important thing to ensure in electoral law is that the voice of the New Zealand public is heard at election time, not just the voices of well-funded lobby groups‖ (Hansard, Questions for Oral Answer, 20 November 2007). 29 Reference Re Public Service Employee Relations Act (Alta), [1987] 1 SCR 313 per McIntyre J at 407: ―It is, I believe, equally clear that . . . freedom of association should guarantee the collective exercise of constitutional rights. Individual rights protected by the Constitution do not lose that protection when exercised in common with others.‖ 27

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in which people and ideas compete. Some candidates and parties will attract more support than others. That is inherent in the nature of the democratic system. In this sense elections by design are not about substantive fairness (if that term is interpreted to require material equality among candidates). We discuss the difficulties associated with the Ministry of Justice‘s use of ―equity‖ and ―level playing field‖ in more detail under section 3 of this submission. 2.27.

Rather, the principal concern when it comes to determining whether an election is ―free and fair‖ is to ensure that there is procedural fairness. Procedural fairness is what distinguishes sham elections from genuine ballots which reflect the free expression of the will of the people. A procedurally fair election has a number of characteristics, including but not limited to, the following: It comports with the principle of one person one vote; It is free from intimidation and fraud; The election process is independently run and managed; The process is transparent and may be monitored by parties and other nongovernment agencies; and The organs and resources of the state are not used to favour particular candidates and parties over others.

2.28.

A focus on procedural fairness is consistent with section 12 of the Bill of Rights which deals with ―electoral rights‖. That section guarantees the right to vote in ―genuine periodic elections‖: Every New Zealand citizen who is of or over the age of 18 years—

2.29.

(a)

Has the right to vote in genuine periodic elections of members of the House of Representatives, which elections shall be by equal suffrage and by secret ballot; and

(b)

Is qualified for membership of the House of Representatives.

This also reflects Article 25 of the International Covenant on Civil and Political Rights which also guarantees ―genuine periodic elections‖: Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

16

(c) To have access, on general terms of equality, to public service in his country. 2.30.

Article 21 of the Universal Declaration of Human Rights is in similar terms: (1)

Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

(2)

Everyone has the right of equal access to public service in his country.

(3)

The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal suffrage and shall be held by secret vote or by equivalent free voting procedures.

2.31.

The focus in both the Bill of Rights and the international instruments on genuine elections is consistent with our concern of ensuring that the rules under which elections are run are procedurally fair, do not favour or disadvantage some candidates and parties over others, and reflect the free will of the people. While it is true that many countries also impose limits on political speech in the pursuit of other objectives (such as ―equality‖) we think it is helpful to separate the issues and include a principle that focuses on the integrity of the electoral process.

2.32.

The requirements for a ―free and fair election‖ were discussed (though not exhaustively) by the Constitutional Court of South Africa in New National Party of South Africa v Government of the Republic of South Africa.30 Commenting on s 19(2) of the South African Constitution which provides that ―[e]very citizen has the right to free, fair and regular elections‖, Yacoob J said: 31 The right to vote is of course indispensible to, and empty without, the right to free and fair elections; the latter gives content and meaning to the former. The right to free and fair elections underlines the importance of the exercise of the right to vote and the requirement that every election should be fair has implications for the way in which the right to vote can be given more substantive content and legitimately exercised. Two of these implications are material for this case: each citizen entitled to do so must not vote more than once in any election; any person not entitled to vote must not be permitted to do so. The extent to which these deviations occur will have an impact on the fairness of the election. This means that the regulation of the exercise of the right to vote is necessary so that these deviations can be eliminated or restricted in order to ensure the proper implementation of the right to vote.

2.33.

30 31

Accordingly, we submit that the second principle should be rephrased to focus on procedural fairness: ―Elections should be free and fair‖. Those who argue that the guiding principles should include a principle that addresses material inequalities between candidates and parties ought to explain their rationale for such a principle on its own terms, as opposed to conflating it with the fairness of the election. For the reasons we set out under section 3 of this submission, we consider that the rationale for adopting a principle based on leveling down inequalities of resources between candidates would

[1999] ZACC 5. Ibid at [12].

17

be weak. However, regardless of the view that the government ultimately takes with respect to that issue, we submit that the principle that an election should be free and fair is so important that it ought to be expressed in those terms (as opposed to the abstract expression ―equity‖, which, with respect, is devoid of obvious meaning). Principle 3: Legal barriers to public participation in public debate and parliamentary democracy should be minimal 2.34.

We broadly agree with the comments made by the Ministry of Justice at paragraphs 1.8–1.9 of its Issues Paper. Legal barriers to public participation (whether by way of they spending limits or burdensome procedural requirements), increase the costs of political participation and therefore decrease the quantity and, perhaps, quality of political participation. For example, if private citizens are required to register before they are able to campaign, then some may not bother to do so. Others may not express their political views for fear of falling foul of the law. Therefore, legal barriers to public participation affect groups at the margin who are considering whether to campaign.

2.35.

In our view, the focus of this principle should be the reduction of legal barriers to participation. Of course, social and economic circumstances may limit a person‘s ability to participate in public debate. For example, a party may have very few supporters or a speaker may find that no one wants to listen to his or her arguments. We do not regard these types of social circumstances (where a person is nevertheless free to speak) as ―barriers‖ of the kind that this principle addresses.

Principle 4: The election laws should protect the reasonable privacy interests of citizens 2.36.

We submit that election laws should protect the reasonable privacy interests of citizens. While the affairs of government should be transparent, the affairs of citizens fall into a different category. Citizens are entitled to transparency in government given its coercive powers, the fact that they ultimately bear the costs of government, and because government legitimacy in a democratic society rests on the support the citizenry. Such rationales do not apply in reverse. Rather democratic government should, absent some compelling state interest, respect the privacy interests of its citizens.

2.37.

We submit that respect for the reasonable privacy interests of citizens in the political context is a well established value in New Zealand society. It is evident from the following: The secret ballot which allows individuals to vote their conscience without having to explain their decision to others and without fear of reprisal. 32

32

The secret ballot is provided for in s 168 of the Electoral Act 1993.

18

The fact that citizens are not asked to declare a party affiliation when registering to vote.33 The fact that political parties are not required to publicly list the names of their members. The fact that citizens may make anonymous donations to charities and advocacy groups. The absence of a requirement on charities and other incorporated societies to publicly list their members. Section 21(1)(j) of the Human Rights Act 1993 which provides that ―political opinion‖ is a prohibited ground of discrimination. The right to freedom of ―thought, conscience, religion, and belief‖ in s 13 of the Bill of Rights. 2.38.

We recognise that in drafting election laws the reasonable privacy interests of citizens will necessarily have to be weighed against competing considerations. We submit, however, that this balancing process will be better carried out if respect for the reasonable privacy interests of citizens is explicitly acknowledged as an important guiding principle at the outset. At present it is not mentioned as a guiding principle in the Ministry of Justice‘s issues paper. We submit that it should be included.

Principle 5: The use of public monies in connection with the electoral process should be transparent 2.39.

To the extent that public monies are used in connection with the electoral process such use should be transparent. This is simply a specific application of the wider principle that democratic governments should be accountable to the citizens they serve. While the application of this principle in certain contexts may raise complex policy issues, we believe it is appropriate to make two general points.

2.40.

First, to the extent that public money is used, either to run elections or to support individual candidates and parties, such use should be acknowledged and disclosed. In other words, the use of public money in the electoral context should be subject to the same accountability principles that other uses of public funds are. In particular, citizens

33

Unlike in some States in the United States where it is necessary to declare a party affiliation in order to vote in primary elections when registering to vote. See question 7 of the National Mail Voter Registration Form on the United States Election Assistance Commission‘s website which asks for the voter‘s ―choice of party‖: http://www.eac.gov/files/voter/nvra_update.pdf. The accompany notes to the National Mail Voter Registration Form provide a State by State explanation as to whether this requirement is compulsory.

19

should be able to see what money is being spent on and by whom. Access to such information allows the public to assess the legitimacy of such spending and demand accountability, be it political or otherwise. In this respect, we agree with the Issues Paper when it says:

2.41.

1.10

The public must have confidence in their democratic system. Rules to promote transparency around electoral finance help to maintain that confidence.

1.11

Transparency is the best way of ensuring that participants in the electoral process comply with the law and behave ethically because, ultimately, the voters will hold them to account.

Second, our inclusion of this principle should not be taken as an indication of our support for allowing political parties and candidates to spend public money for campaign related purposes. It is merely an acknowledgment that to the extent that such spending either takes place now or is proposed in the future, such spending should be subject to public scrutiny. We are, however, opposed to the concept of creating a general system of public funding for political parties.

Principle 6: There is a public interest in the disclosure of donations to political parties and candidates if those donations raise the possibility of quid pro quo by virtue of their size and nature 2.42.

As a particular aspect of transparency, we submit that there is a public interest in the disclosure of donations to political parties and candidates if those donations raise the possibility of quid pro quo by virtue of their size and nature.

2.43.

As indicated above, we generally believe that electoral laws should seek to uphold the reasonably privacy interests of citizens. Small and anonymous donations made to political parties do not give rise to concerns that financial support is being given in return for favours, influence or policy support. We reiterate the observation (made in a different context) that it is necessary ―to distinguish between matters of general interest or curiosity to the public, and matters which are of legitimate public concern‖.34 Although it may be interesting that one‘s neighbour donates small sums of money to a political party, it is not a matter of legitimate public concern. Accordingly, we are of the view that the privacy interests of small and anonymous donors are entitled to respect.

2.44.

We recognise, however, that certain donations by their size and nature are of legitimate public concern. Although large donations are not improper, they may raise an inference

34

Hosking v Runting [2005] 1 NZLR 1 (CA) at [133] per Gault and Blanchard JJ.

20

of a quid pro quo.35 In such cases we submit that the privacy interests of the donor are outweighed by the public interest in disclosing the existence of the donation. Disclosure will allow voters to evaluation any inference of a quid pro quo and, as the Issues Paper notes, ―hold [parties and candidates] to account‖, if they believe that is warranted.36 Principle 7: Electoral laws should be applied impartially and expeditiously so as to ensure that participants in the electoral process are held accountable according to law 2.45.

We agree with the fifth principle proposed by the Ministry of Justice (―accountability‖), as well as its comment that ―it must be clear to everyone that those who break the rules are held to account.‖37 Clearly expressed and coherent electoral laws assist electoral regulators to enforce those laws expeditiously and are likely to improve public confidence in the electoral system. We believe that it would be helpful to express the principle in the terms we suggest above.

Principle 8: In accordance with the rule of law, it should be possible to ascertain with fair certainty the meaning, scope, and effect of the electoral laws 2.46.

Reasonable certainty as to the meaning and application of the law is an important aspect of the rule of law. The Hon Murray Gleeson, then Chief Justice of the High Court of Australia, explained the importance of the ability of citizens to foresee how the law will affect them as follows:38 In a liberal democracy, the idea of the rule of law is bound up with individual autonomy – the freedom to make choices. It is only if people know, in advance, the rules by which conduct is permitted or forbidden, and the rights and obligations that flow from their conduct, that they are free to set their personal goals and decide how to pursue them. That is the purpose of having law in the form of general rules, of reasonable clarity and certainty, capable of being known by people in advance of choosing to act in a certain way.

2.47.

The Nobel laureate economist and political philosopher, F.A. Hayek similarly expressed the importance of fair certainty to the rule of law in this way:39 Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law. Stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one‘s individual affairs on the basis of this knowledge.

35

For example, in 2008 questions were raised about the connection between donations received by the New Zealand First Party and its racing policy. See http://www.odt.co.nz/news/politics/14508/peters-rejects-donations-influencedracing-policy. 36 At paragraph 1.11. 37 Issues Paper, paragraph 1.13. 38 The Hon Murray Gleeson, "A Core Value", Judicial Conference of Australia, Annual Colloquium, 6 October 2006. Available at http://www.jca.asn.au/attachments/2006-cj_6oct06.pdf. 39 F.A. Hayek, The Road to Serfdom (1944).

21

2.48.

Fair certainty is particularly important where criminal sanctions apply to the breach of a rule (i.e. a concomitant principle to the rule that ignorance of the law is no excuse for breaching it is that those subject to the law should be able to ascertain what the law forbids). It is especially important where, as in the context of campaign regulations affecting political speech, significant human rights are at stake. As the Privy Council indicated in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing – a case concerning freedom of expression – "legal provisions which interfere with individual rights must be . . . formulated with sufficient precision to enable the citizen to regulate his conduct."40 As Lord Simonds, put the point: ―a man should not be put in peril on an ambiguity.‖ 41

2.49.

We therefore submit that one of the guiding principles for the development of new electoral laws should be that the rules are sufficiently understandable to afford citizens fair certainty as to what is permitted and what is prohibited. As the experience of the Electoral Finance Act demonstrated, laws which are based on vague standards are difficult to understand and apply. 42 We submit that it is inconsistent with the rule of law to regulate public debate according to prohibitions so uncertain that citizens and regulators alike are unable to determine their meaning with fair certainty. We also believe that it would be helpful for the Ministry of Justice and the government to consider the comments of the New Zealand Law Society‘s Rule of Law committee with respect to the Electoral Finance Act, including its comment that:43 The rule of law requires, as a minimum, certain, stable and predictable rules of laws that commend themselves to the sense of fairness of the people. However, the uncertainties that beleaguer the Act are seriously confounding the political process. No one is able to say with confidence whether some forms of political spending constitute election advertising and are subject to the Act‘s prescriptive requirements. Given the uncertainties, the rule of law has descended into what an electoral official says is the law (does this or does this not constitute election advertising?). So much, then, for certain, stable and predicable rules of law. The Act is fundamentally flawed and misconceived, and ought to be repealed.

2.50.

To some extent, the need for certainty and predictability is touched upon by the sixth principle of ―legitimacy‖ proposed by the Ministry of Justice. The Ministry notes that,

40

[1998] 3 WLR 675 at 682. [1951] 2 All ER 278 at 281 (HL). The significance of the principle is not diminished by the fact that the penal statute does not concern serious crimes: ―I regard it as of particular importance that this rule should be observed, whether the statutory prescription refers to the invasion of copyright, or to the system of working in a factory, or, as here, to the repair of ships in a shipyard‖ (at 281 per Lord Simonds). 42 See, for example, R. Harrison QC, ―Political Free Speech in New Zealand: Dangerous Beast or Endangered Species‖, University of Waikato Seminar, Freedom of Speech and the Safety of the State, 10 July 2008; A. Nicholls and L. Clark, ―Law and Disorder‖, Listener, 28 June 2008, 24; M. Chen, ―Advising clients on the Electoral Finance Act 2007‖ 86 NZLawyer, 18 April 2008, 10; R. Partridge and J. Wilson, ―Free Speech in Election Years‖ [2008] NZLJ 96) 43 http://www.lawsociety.org.nz/__data/assets/pdf_file/0015/4416/Electoral_Finance_Act.pdf. 41

22

―having legitimate electoral finance legislation that is clear and easily understood means that the law has credibility, and constituency candidates, political parties and electoral agencies know what is expected of them.‖ 44 While this correct, the ability of citizens to understand the electoral laws implicates more fundamental concerns relating to the rule of law. For this reason, we submit that a separate principle be introduced affirming the principle that it should be possible to ascertain with fair certainty the meaning, scope, and effect of the electoral laws. Summary 2.51.

In summary, we submit in relation to the questions raised by the Ministry of Justice: Q1.1 Do you agree with the six principles for guiding the development of the new legislation? Are there any other principles you think are also important? A1.1 As discussed above, we disagree with the way in which the principles are expressed. We also discuss some of the problems with the Ministry of Justice‘s commentary to the principles below under section 3 of this submission. We also submit that several important principles relating to the requirement have been omitted (not least, the principle that, in accordance with the rule of law, it should be possible to ascertain with fair certainty the meaning, scope, and effect of the electoral laws). Q1.2 Are any principles more important than others? Do any of the principles conflict? If so, how do you think a balance can be achieved? A1.2 Certain of the principles discussed above are more important than others, which is reflected by Parliament‘s decision to enact the Bill of Rights to affirm and protect New Zealanders‘ fundamental rights and freedoms, including freedom of expression. The New Zealand Bill of Rights also sets out the grounds on which the rights it guarantees can be limited. Accordingly, to the extent that some of the principles proposed by the Ministry of Justice (such as ―equity‖) conflict with rights affirmed and protected by the New Zealand Bill of Rights, those rights ought to prevail except where a limitation on them can be demonstrably justified as necessary to the achievement of a pressing and substantial governmental purpose. Q1.3 Should a statement of these principles be included in the new legislation? A1.3 In order for such a statement of principles to be useful, it is necessary that the principles be expressed clearly and that the principles themselves should be

44

Issues Paper, paragraph 1.14.

23

sound. In our discussion above, we have suggested ways in which the principles can be expressed more directly (e.g., replace ―Equity: The electoral contest should be fair‖ with ―Elections should be free and fair‖ and replace ―Freedom of expression: Freedom of expression should not be unduly restricted‖ with ―Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form‖). In the next section we submit that certain concepts raised by the Ministry of Justice are incoherent and have potentially far reaching and ill-considered implications. 3.

Comments on certain aspects the Ministry of Justice’s proposed guiding principles

3.1.

We believe that several aspects of the Ministry of Justice‘s discussion of its proposed guiding principles warrant specific comment for two reasons: First, the Ministry of Justice uses a number of very ambiguous expressions (e.g., the ―level playing field‖) without explaining those expressions or defining the principles for which the expression is a short-cut reference. Second, several of the Ministry of Justice‘s comments with respect to its proposed guiding principles have potentially far-reaching implications for the reform of New Zealand‘s electoral finance laws. We submit that these comments require detailed consideration before being used to formulate substantive legislative proposals.

3.2.

Accordingly, we discuss below the comments of the Ministry of Justice.

The “equity” and “level playing field” expressions are ill-considered 3.3.

The Ministry of Justice proposes as its first guiding principle a principle of ―equity.‖ The Ministry of Justice begins with the statement that ―the electoral contest should be fair.‖ For the reasons discussed above, we agree with this principle and submit that the principle should be reformulated to reflect the standard language used to describe a fair electoral contest: ―elections should be free and fair.‖

3.4.

However, while the Ministry of Justice‘s proposed standard of fairness is unobjectionable, its discussion of the meaning of ―equity‖ introduces a number of separate and highly uncertain concepts. The Ministry of Justice asserts:45 Equity means that no person has an unfair advantage when seeking election to Parliament. Constituency candidates and political parties should campaign on a level playing field, and have the opportunity to explain their policies to the general public and influence the choice that voters make.

45

Issues Paper, paragraph 1.15.

24

3.5.

The Ministry of Justice makes no detailed attempt to define what it means by ―unfair advantage‖ or a ―level playing field.‖ In our submission, an expression such as ―level playing field‖ is an unhelpful short-cut of which it might be said that ―it owes its attraction … to the fact that one may utter it without having the trouble of really thinking out with precision what one means oneself or what others understand by it.‖ 46

3.6.

If ―equity‖, the absence of ―unfair advantage,‖ and a ―level playing field‖ in fact refer to the establishment of clear and impartially applied rules to ensure the propriety of the electoral process, then such a standard could be directly covered by the principle that ―elections should be free and fair.‖ If, however, the Ministry of Justice intends that the expressions ―equity‖ and ―level playing field‖ include concepts that go beyond the traditional expectation that elections should be free and fair, it is proper and necessary to explain what it means by a ―level playing field.‖ The metaphor of a ―level playing field‖ ambiguously suggests a number of quite different requirements for the conduct of an election. If the Ministry of Justice intends to introduce concepts that fall outside the traditional understanding of a free and fair election, it should explain those concepts clearly. Absent a clear definition of those concepts, it is difficult to determine precisely what the Ministry of Justice means when it states, for example, ―a very high limit [on spending for political speech] may ‗tilt‘ the playing field unreasonably with a negative effect on equity and participation.‖ 47 We therefore believe that the Ministry of Justice‘s decision to include the undefined expression of a ―level playing field‖ is unhelpful to the process of formulating high quality electoral laws.

3.7.

In a free and fair election, of course, some parties will have far more members than others and therefore receive more volunteer support and donations. Some parties‘ candidates will already hold elected office and, therefore, generate more publicity when they speak or make campaign appearances. Certain candidates will be more charismatic than others and some candidates will be highly experienced in political campaigns and, therefore, more effective and resourceful on average than some of their rivals. Influential lobby groups, business associations, or trade unions may endorse and support some candidates to the disadvantage of others. Accordingly, free and fair elections involve robust rivalry as candidates for office and political parties attempt to persuade voters to cast ballots in their favour. This is consistent with an understanding of a ―level playing field‖ that means everyone is free to participate and subject to the same rules, which will be fairly and impartially applied. This is the essence of the traditional conception of political equality: ―the traditional notion of political equality is that each person has a right to vote and to have that vote weighted equally with those of others. But citizens are free to use their differing abilities, financial wherewithal, and personal

46

This comment was made in a different context by Lord Pearce in The Heron II Koufos v C Czarnikow Ltd [1969] 1 AC 350 at 415. 47 Issues Paper, paragraph 3.13.

25

disposition to become more or less active in political life and to attempt to persuade their fellow citizens to vote in a particular manner.‖48 3.8.

It is possible that the Ministry of Justice has used the expression of a ―level playing field‖ to refer to a standard of equality of resources between participants in public debate and Parliamentary democracy. We note, for example, that the majority report of the Select Committee in relation to the Electoral Finance Bill 2007, invoked a (similarly undefined) concept of a ―level playing field‖ to justify the restrictions on political speech in that legislation. If the Ministry of Justice intends the concept of ―equity‖ or a ―level playing field‖ to carry a similar meaning, then we submit that the proposed principle is misguided for the following reasons. First, the legitimacy of an election does not require that each candidate for office enjoys an equal or nearly equal level of resources. Second, electoral finance laws that purport to create a ―level playing field‖ of resources target only one resource relevant to the electoral process. Third, the application of an ―equal playing field‖ (in the sense of an equality of resources to ensure equality of influence) rationale to private citizens makes even less sense than applying it to political parties and candidates. Fourth, we submit that regulation of speech in order to control the ―fairness‖, ―balance‖, or ―equality‖ of public debate disserves the public interest. Fifth, we would disagree with any suggestion that it is undesirable that not every possible viewpoint is equally represented in public debate or that the ideal state of affairs would be that the government ensured that every possible viewpoint was equally represented in public debate. One of the consequences of an uninhibited marketplace of ideas is that certain ideas become more or less popular and some ideas are discredited. That is the point of presenting a reasoned argument and this is the process by which civilised societies decide issues.

3.9.

We consider each of these matters in turn.

THE LEGITIMACY OF AN ELECTION DOES NOT REQUIRE THAT EACH CANDIDATE FOR OFFICE ENJOYED AN EQUAL OR NEARLY EQUAL LEVEL OF RESOURCES

3.10.

First, the legitimacy of an election does not require that each candidate for office enjoyed an equal or nearly equal level of resources.

48

Bradley Smith, ―Money Talks: Speech, Corruption, Equality, and Campaign Finance‖ (1997) 80 Geo. L.J. 45 at 96.

26

3.11.

In our submission, the proposition that an election result does not legitimately reflect the will of the electorate if some candidates greatly outspent others is implausible. To take a trite example, in the 2005 New Zealand general election the party with the highest level of party and candidate spending outspent the party with the least by more than 5241:1.49 The fact that the Labour Party outspent the Republic of New Zealand Party by so many orders of magnitude could not seriously be regarded as impugning the fairness of the election. Indeed such a suggestion would be regarded as absurd on its face. Nonetheless, the example demonstrates the equal absurdity of the claim that an election is ―unfair‖ unless every candidate for office can apply roughly equal resources to the campaign. For example, no one seriously suggests that the 2005 election was not free and fair by virtue of the Labour Party outspending New Zealand First by 6:1 or ACT New Zealand by 3:1. A suggestion that the differences in spending implicated a ―level playing field‖ concern would raise puzzling questions. Should the National and Labour parties have been restricted to a level of spending that New Zealand First could match in order to preserve a ―level playing field‖? Does a ―level playing field‖ standard require a parity of spending with the ACT party (and, if so, why not the Aotearoa Legalise Cannabis Party)? Accordingly, a claim that an election outcome is somehow unfair if some parties spent much more than other parties is unconvincing.

3.12.

Alternatively, a ―level playing field‖ might be thought to require only an upper cap on the amount of spending so as to ensure that the largest parties do not greatly outspend one another (leaving the question of the differences in resources between the largest parties and the smaller parties unaddressed). So modified, the claim would be that the legitimacy or fairness of an election is undermined when one large party or leading candidate spends materially more than the nearest rival candidate or party. Such a claim also seems implausible. In the recent US presidential elections, the successful candidate is estimated to have outspent his nearest rival by $397 million.50 There are no obvious indications that the spending difference was regarded by the citizens of that country as calling into question the integrity of the outcome.

ELECTORAL FINANCE LAWS THAT PURPORT TO CREATE A ―LEVEL PLAYING FIELD‖ OF RESOURCES TARGET ONLY ONE RESOURCE RELEVANT TO THE ELECTORAL PROCESS

3.13.

Second, electoral finance laws that purport to create a ―level playing field‖ of resources target only one resource relevant to the electoral process.

49

http://www.elections.org.nz/record/expenses-returns/party-expenses-2005.html Senator McCain spent $333 million, while Senator Obama (as he then was) spent $730 million (see http://www.opensecrets.org/pres08/index.php?cycle=2008). It is not necessary, for present purposes, to consider whether the calculation of money spent ―for‖ each candidate should include spending by the Republican National Committee, Democratic National Committee, trade unions, and business groups, etc. (Though we note that this illustrates one of the problems with trying to ―balance‖ elections). 50

27

3.14.

Spending money on political speech in the form of pamphlets, posters, or billboards is one way to disseminate ideas. Legislation aimed at a ―level playing field‖ with respect to campaign spending would control expenditure in order to ensure equality of resources among election participants. However, money is only one type of resource deployed during an election campaign. To the extent that other resources are not targeted by campaign regulations, it is relevant to inquire into the implications of their exclusion for the integrity of the ―level playing field‖ concept.

3.15.

One of the most obvious non-monetary advantages that a candidate can enjoy is name recognition. A relatively well known candidate can benefit from their reputation and the simple fact that voters know who she is. By contrast, a little known candidate must establish that reputation with voters by campaigning, many forms of which cost money. It is reported that when Howard Metzenbaum, the United States Senator from Ohio, was criticised for spending too much in a campaign against his ex-astronaut rival, John Glenn, he retorted that he did not have the benefit of his opponent‘s name recognition, based on billions of dollars of expenditure by the federal government. 51 While usually less dramatic, such disparities in name recognition are commonplace. Although it would not be sensible to attempt to level down such disparities, it seems a fair question to ask why supporters of a ―level playing field‖ rationale would not be in one way concerned about such disparities even if they thought that they were too difficult to address.

3.16.

Another such resource is time. As Bradley Smith observes, ―even the availability of time can be very unevenly distributed in favour of certain points of view. For example, a sole proprietor may have less time to devote to political activities than his hourly employees. However, he may also have more money to contribute.‖52 A single person may have more time to devote to a campaign than a person with substantial family commitments. Those who work long hours or seven day weeks may find it impracticable to participate in political activity. Moreover, the effect of each person‘s time on a campaign is unequal: ―a Hollywood celebrity‘s time spent campaigning is far more valuable than any time a typical butcher can donate to a campaign.‖ 53 In Professor Sanford Levinson‘s words, it would presumably ―be bizarre to tell the [Paul] Newmans of the world that they could not actively participate in the political world because the resource they contribute – their celebrity – is so much greater than that of the average citizen.‖54 Again, it seems reasonable to ask why disparities between candidates based

51

See Sanford Levinson, ―Regulating Campaign Activity: The New Road to Contradiction‖ (1985) 83 Mich. L. Rev. 939 at footnote 41. 52 Bradley Smith, ―Money Talks: Speech, Corruption, Equality, and Campaign Finance‖ (1997) 80 Geo. L.J. 45 at 94–95. 53 Ibid at 95. 54 Sanford Levinson, ―Regulating Campaign Activity: The New Road to Contradiction‖ (1985) 83 Mich. L. Rev. 939 at 949.

28

on the availability or value of their supporters‘ time would not be thought to be unfair in some sense by supporters of a ―level playing field‖ concept. After all, these considerations are relevant to a candidate‘s electoral prospects. 3.17.

Another resource consists of the benefits of being an incumbent office holder. An incumbent is generally able to generate more coverage from the press than her lesserknown rivals. For example, a Prime Minister campaigning for re-election can expect to enjoy significant publicity and attention at campaign appearances. Similarly, his or her rivals who have already been elected to Parliament will ordinarily receive more significant publicity than candidates who are not Members of Parliament. Such coverage is clearly helpful to the candidates and the interest of the public and media in following the progress of the leading candidates is obvious. It would not be serious to claim that an election was unfair or illegitimate (by virtue of violating the principle of a ―level playing field‖) because some candidates received vastly more coverage than others through the ordinary process of news reporting. Yet few would question that the coverage of the campaign on the nightly news, the radio, or the morning newspapers plays at least as significant a role in the outcome of the campaign (in fact, probably more significant) than the billboards that the parties erect and the pamphlets they distribute. While the Broadcasting Act mandates balanced reporting,55 it would not be serious to suggest that the law should regulate news reporting so as to require equal time be devoted to each candidate in order to provide a ―level playing field.‖

3.18.

The same point could be made about a host of other inequalities56 that might be imagined to tilt the notional ―level playing field‖ (e.g., experienced campaigners will tend to be more effective than novices). Such inequalities in the availability and value of the time of political activists are facts of life and their impact on political campaigns can be substantial. However, no one proposes something as quixotic as regulation to impose a ―level playing field‖ in respect of the time and energy of political supporters. That such proposals would be thought preposterous in respect of those resources ought to at least make supporters of a ―level playing field‖ rationale for limiting speech think twice about whether that rationale has been properly thought through.

3.19.

As the discussion above indicates, one of the unusual aspects of regulation intended to impose a ―level playing field‖ of resources during elections is that the regulatory efforts target one type of resource – money spent on political advocacy – while leaving other resources that are significant to campaign efforts unaddressed. The fact that these

55

Broadcasting Act 1989 section 4 (1)(d). As Scalia J quipped during the oral argument in Davis v. FEC 128 S. Ct. 2759 (2008) (holding that the provisions in 2 USCS § 44a-1 and § 44a-1(b) of the Bipartisan Campaign Reform Act – the so-called ―millionaire‘s amendment‖ – violated the First Amendment): ―You think that‘s really a proper function of government, to look out over there and say. ―We‘re going to even the playing field in this election‖? What if … one candidate is more eloquent than the other one? You make him talk with pebbles in his mouth or what?‖. 56

29

resources are largely ignored is likely to reflect both the practical impossibility of ensuring that competing candidates for office are somehow equal in all conceivable resources and attributes as well as the conceptual incoherence of the ―level playing field‖ metaphor. THE APPLICATION OF AN ―EQUAL PLAYING FIELD‖ RATIONALE TO PRIVATE CITIZENS MAKES EVEN LESS SENSE

3.20.

Third, the application of an ―equal playing field‖ (in the sense of an equality of resources to ensure equality of influence) rationale to private citizens makes even less sense than applying it to political parties and candidates.

3.21.

For the reasons discussed above, we believe that the concept of regulating speech in the pursuit of an equality of resources among parties and candidates is misguided. However, we believe the notion is quite bizarre when applied to all political advocacy by private citizens during an election period.

3.22.

Even on an abstract theoretical level, there is no obvious basis for a claim that a ―level playing field‖ requires the government to regulate speech in an attempt to somehow ―equalise‖ the influence of all private citizens. As a starting point, it is not clear what it would mean for everyone to somehow be equally influential in public debate. As Professor Lillian Bevier observes: 57 If being a "political equal" means that one cannot legitimately attempt to acquire political influence, what point is there in engaging in political deliberation? If everyone truly had "the same" amount of political influence, would not the very concept of "political influence" be oxymoronic?

3.23.

Differences in political influence among private citizens reflect the diversity and complexity of life. Religious leaders have influence among their followers. Celebrities may attract greater attention to the social or political causes they support than noncelebrities. Journalists and editorial commentators have a greater opportunity to express their ideas to a wider audience than others. 58 Editorial commentators engaged by successful publications have a wider audience than those employed by less successful or more narrowly focused publications. Full-time and part-time bloggers can attract a following among internet users. Professors and teachers can play an influential role in

57

Lillian BeVier, ―Campaign Finance Reform: Specious Arguments, Intractable Dilemmas‖ (1994) 94 Colum. L. Rev. 1258 at 1267. 58 See, e.g., Mills v. Alabama 284 US 214 at 218 – 219: ―Suppression of the right of the press to praise or criticize governmental agents and to clamor and contend for or against change, which is all that this editorial did, muzzles one of the agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free. The Alabama Corrupt Practices Act by providing criminal penalties for publishing editorials such as the one here silences the press at a time when it can be most effective. It is difficult to conceive of a more obvious and flagrant abridgment of the constitutionally guaranteed freedom of the press.‖

30

shaping the ideas of their students. Simply put, influence is a feature of peaceful human interaction. 3.24.

Contrary to the implicit logic of the idea that the government should regulate speech in order to ―equalise‖ political influence among private citizens, a person who has been ―influenced‖ is not worse off by virtue of that persuasion. We are, in fact, better off when we hear a convincing speech that persuades us to re-evaluate our view on a subject or read a well-reasoned article that persuades us that we had wrongly judged an issue. We are better off for the speaker or writer having marshaled the evidence and arguments in support of an issue or raising a matter which we had not previously considered. We are better off for the fact that some people have established television and radio stations to broadcast news and entertainment that we could not arrange by our own efforts. Influence through persuasion is the basis for positive human interaction, not a threat to our ―political equality.‖ Indeed, a person who sought to avoid being influenced or persuaded by others would be a hermit or misanthrope. A person who distrusted persuasion unless he could somehow ―persuade them back‖ would be misguided.

REGULATION OF SPEECH IN ORDER TO CONTROL THE ―FAIRNESS‖, ―BALANCE‖, OR ―EQUALITY‖ OF PUBLIC DEBATE DISSERVES THE PUBLIC INTEREST

3.25.

Fourth, we submit that regulation of speech in order to control the ―fairness‖, ―balance‖, or ―equality‖ of public debate disserves the public interest.

3.26.

It is not possible to attempt to level down inequalities in public political debate or private political advocacy without a regulatory regime to monitor and control the amount of spending and supervise the content of speech. While it is debatable that such a regulatory regime could achieve the ideals of a ―level playing field‖, it is in our view certain that a number of regulatory measures would be required to pursue that ideal. Accordingly, when considering the merits of measures to limit political debate, it is necessary to have regard to the likely (even if unintended) consequences of regulating speech in this way (we discuss some of these consequences below).

3.27.

For the purposes of evaluating the consequences of attempts to level down inequalities and redress imbalances in public debate, it is helpful to consider the regulation of the US broadcast media, as an example of where this has been tried and ultimately rejected by the regulators themselves. It is also helpful to refer to this for the purposes of providing some balance to the New Zealand policy debate concerning electoral finance reform. Many of the various assessments of the necessity of campaign regulation in New Zealand (particularly in connection with the Electoral Finance Act) have largely focused on the judgments of the House of Lords and the Supreme Court of Canada as well as certain legislative inquiries. For completeness, it is appropriate to refer to the 31

contrary findings, based on no less extensive work, of the Federal Communications Commission (FCC) in relation to now defunct ―fairness doctrine‖. 3.28.

The ―fairness doctrine‖ required broadcasters to broadcast devote equal time to each side of a political issue in order to ensure that one viewpoint was not ignored. The constitutionality of the doctrine was upheld in an early decision based on the ―the scarcity of broadcast frequencies‖, which entitled the federal government to impose content-based licensing restrictions on broadcasters. 59 However, following considerable dissatisfaction with the doctrine, the FCC initiated a wide-ranging review, the findings of which were reported in its Report Concerning General Fairness Doctrine Obligations of Broadcast Licensees.60

3.29.

In that report, the FCC stated:61 On the basis of the voluminous factual record compiled in this proceeding, our experience in administering the doctrine and our general expertise in broadcast regulation, we no longer believe that the fairness doctrine, as a matter of policy, serves the public interest. In making this determination, we do not question the interest of the listening and viewing public in obtaining access to diverse and antagonistic sources of information. Rather, we conclude that the fairness doctrine is no longer a necessary or appropriate means by which to effectuate this interest. We believe that the interest of the public in viewpoint diversity is fully served by the multiplicity of voices in the marketplace today and that the intrusion by government into the content of programming occasioned by the enforcement of the doctrine unnecessarily restricts the journalistic freedom of broadcasters. Furthermore, we find that the fairness doctrine, in operation, actually inhibits the presentation of controversial issues of public importance to the detriment of the public and in degradation of the editorial prerogatives of broadcast journalists.

3.30.

The FCC went on to state:62 In sum, we find that the evidence, derived from the record as a whole, leads us to conclude that the fairness doctrine chills speech. As a result of this finding alone we no longer believe that the fairness doctrine, as a matter of policy, furthers the public interest and we have substantial doubts that the fairness doctrine comports with the strictures of the First Amendment. Because the fairness doctrine inhibits the presentation of controversial and important issues, in operation, it actually disserves the purpose it was designed to achieve. In our view, an elimination of the doctrine would result in greater discussion of controversial and important public issues on broadcast facilities.

3.31.

While the FCC concluded that it remained for Congress to abolish the doctrine, the United States Court of Appeals for the District of Columbia subsequently held that the doctrine was an ―administrative construction, not a binding statutory directive.‖ Accordingly, the FCC formally abolished the ―fairness doctrine‖ in Syracuse Peace Council.63 That decision was challenged on administrative law grounds but sustained

59

Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969). 102 F.C.C.2d 143 (1985). 61 Ibid at paragraph 5. 62 Ibid at paragraph 68. 63 2 F.C.C. Rcd. 5043 (1987). 60

32

by the District Court and the Court of Appeals for the District of Columbia;64 and a Congressional resolution requiring the FCC to enforce the ―fairness doctrine‖ was subsequently vetoed by President Reagan. 3.32.

THE

We submit that the findings and careful analysis of the FCC with respect to the ―fairness doctrine‖ are relevant to some of the issues involved in New Zealand‘s review of campaign finance regulation. It might be thought that the core focus of the FCC‘s report would be less relevant if the New Zealand review proposes a widely drafted exemption for media reporting. However, such an exemption may raise almost as many questions as it answered. IDEAL STATE OF AFFAIRS IS NOT ONE IN WHICH EVERY POSSIBLE VIEWPOINT IS EQUALLY

REPRESENTED IN PUBLIC DEBATE

3.33.

Fifth, we would disagree with any suggestion that it is undesirable that not every possible viewpoint is equally represented in public debate or that the ideal state of affairs would be that the government ensured that every possible viewpoint was equally represented in public debate.

3.34.

In a free society, people have the liberty to speak their minds and evaluate the arguments of others. Not all arguments are equally persuasive, certain ideas lose salience or credibility when viewed in the light of experience, and some arguments are patently false. Not all ideas that rise to prominence turn out to have desirable consequences and, in turn, those ideas tend – on average and over time – to be discredited by reasoned argument. Accordingly, the ideal state of affairs is not one in which every possible viewpoint is equally represented in public discussion and there is much wisdom (provided one notes the careful adjectival qualifier, ―best‖) in the observation of Justice Oliver Wendell Holmes that ―the best test of truth is the power of the thought to get itself accepted in the competition of the market.‖65

3.35.

That is not to say that the marketplace of ideas is perfect at distilling good ideas from bad ideas. While part of the realisation that some ideas are not worthy of consideration occurs through discussion, sometimes it is necessary to put ideas into practice before the discovery process reveals them to be poor ideas. Some ideas may still be popular despite the poor results they deliver when actually practiced, and despite the success of alternatives. (An example that is sometimes given in the literature on this topic is that free trade is often unpopular.66)

64

867 F.2d 654 (1989). Abrams v United States 250 US 616 at 630 (1919). 66 See, Bryan Caplan, The Myth of the Rational Voter, Princeton University Press, 2007. 65

33

3.36.

We therefore consider it simplistic for supporters of restrictions on political advocacy to rely on situations in which more resources have been devoted to presenting arguments in favour of one policy as opposed to another. We respectfully consider that the Supreme Court of Canada fell into this error in Libman v. Quebec (Attorney General).67 It is helpful to quote the relevant passage from the Supreme Court‘s decision in full: 68 The 1988 federal election showed clearly how independent spending could influence the outcome of voting. During the 1988 election, there were no controls on independent spending. Elections Canada was not enforcing the provisions of the Canada Elections Act, R.S.C. 1970, c. 14 (1st Supp.), on spending limits for individuals and groups as a result of the decision in National Citizens’ Coalition Inc. v. Canada (Attorney General) (1984), 11 D.L.R. (4th) 481 (Alta. Q.B.). In that case, the National Citizens‘ Coalition had challenged, inter alia, the limits on independent spending provided for in s. 70.1 of the Canada Elections Act (now s. 259). That section prohibited all independent spending to directly promote or oppose candidates or political parties during an election. Medhurst J. held that this provision was an unjustified restriction on the freedom of expression of individuals and groups during an election. The government decided not to appeal the decision (Lortie Commission, supra, at p. 328). As a result, this provision was not enforced during the 1984 and 1988 general elections. During the 1988 election, independent spending on advertising exceeded $4.7 million (Lortie Commission, supra, at p. 337). Most of these advertisements were directed at the issue of free trade. The statistics showed that four times as much money was spent to promote free trade as was spent to oppose it. Thus, even if this spending was not necessarily partisan, it clearly favoured the Progressive Conservative Party indirectly. That party was the only one to advocate free trade; it therefore benefited considerably from this ―indirect‖ independent spending. The Lortie Commission drew the following conclusion from that experience, at pp. 337-38: The 1988 election experience clearly demonstrated that advertisements promoting an issue but not explicitly exhorting voters to vote for a particular candidate or party could themselves be grossly unfair because they can constitute an endorsement of a particular party, if one party can be clearly distinguished from others on the basis of its stand on a central election issue.

3.37.

67 68

With respect, the Supreme Court‘s analysis that the predominance of advocacy in favour of free trade demonstrates the possibility that advertisements might be ―grossly unfair‖ is a non sequitur. It is not obvious why anyone would expect the arguments for and against free trade to be evenly balanced or why ―fairness‖ requires an equal amount of resources to be devoted advocating for protectionism as advocating free trade. It is perfectly plausible to surmise that free trade policies prevailed in the marketplace of ideas by virtue of their superior economic logic and the lessons of experience. Few would be troubled today that free trade enjoys much more widespread support than in 1988. We therefore find it puzzling to suggest that it was ―grossly unfair‖ that much more money was spent to promote arguments in favour of free trade than to oppose it. (We note also that we consider it objectionable in principle that the advocacy of policies – which supporters of electoral finance legislation sometimes assert is protected provided that speakers ―stick to the issues – could nevertheless be restricted to avoid

[1997] 3 S.C.R. 569. At [51].

34

―gross unfairness‖ to the politicians who take a different stand on those issues. In our view, the electoral laws ought not to be designed to protect the tenure of politicians). 3.38.

It is not clear how far those who regard it as ―grossly unfair‖ that different viewpoints have unequal resources devoted to them would extend restrictions in order to obviate that unfairness. To begin with some trite examples, philosophies such as communism and fascism have been so discredited that it is unsurprising and unobjectionable that their proponents no longer enjoy minimal (let alone equal) representation in public debate in New Zealand society. To take less extreme examples, we do not consider it troublesome that certain other views that appear to have aged poorly and have very little representation in the marketplace of ideas in modern New Zealand society: The government should control the wages of all New Zealand employees and the prices of all New Zealand businesses;69 Compulsory unionism should apply to New Zealand workers; and New Zealand should return to a system of accident compensation based on tort law and disestablish the no-fault regime.

3.39.

In our view, the absence of support for such views is a consequence of the ―the process of thought and discussion [and] the activity of speakers becoming listeners and listeners becoming speakers in the vital interchange of thought‖ that Marshall J spoke of in Kleindienst v Mandel.70 We see no obvious reason to mourn the demise of ideas that have been discredited or bemoan their unequal representation in the public discourse (after all, no one need be restricted from repeating such arguments if they want to). However, as discussed elsewhere throughout this submission, we consider there are clear risks associated with proposals to restrict – in the pursuit of so nebulous a concept as a ―level playing field‖ – the ability of people to publish their political beliefs using their own money.

The concern that some political ideas will be “drowned out” in the absence of regulation is unfounded 3.40.

A concern commonly expressed by supporters of measures designed to regulate political advocacy and speech is the possibility that ―big money‖ 71 will somehow ―dominate‖72

69

Wages were frozen in 1982 under the Remuneration Freeze Regulations and the Wage Freeze Regulations, while prices were frozen under the Economic Stabilisation Act 1948. 70 408 US 753 (1972). 71 Hansard, Volume 644, page 13418, Clark. 72 Paragraph 5.13: ―Some say that this can lead to wealthy members of the public dominating the election campaign, by targeting a particular candidate or party and damaging their election prospects.‖

35

(or ―overwhelm‖73) political discourse and ―drown out‖74 other viewpoints. For example, Judge J. Skelly Wright complained that ―unchecked political expenditures … may drown opposing beliefs, vitiate the principles of political equality, and place some citizens under the damaging and arbitrary control of others.‖ 75 As with the concept of a ―level playing field‖ of influence, the specific concern is often difficult to identify and it is likely that the use of figurative language reflects the difficulty in explaining the actual basis for the concern. In our view, it is likely that the argument is simply a variation on the ―level playing field‖ argument. Nevertheless, it is potentially helpful to consider what the expression ―drowning out‖ could mean and what specific claims could underpin such a rationale for the regulation of political speech during election years. 3.41.

As a starting point, proponents of regulations to prevent certain ideas ―drowning out‖ other ideas presumably cannot mean that, absent regulation, some wealthy individuals could somehow procure so much advertising as to foreclose the opportunities for rivals to disseminate their ideas. The inconsistency of such a concern with the practical reality of the modern media environment has been expressed colourfully by Professor Fried: 76 Considering the facts of the American world, the whole drownout thesis is patently absurd. It simply is not the case that no one will publish unpopular views. Information technology is so far advanced that it takes relatively small capital -- capital that almost anyone can assemble -- to put out one's message in print form. One need only listen to the news and information programming of public broadcasting to hear the broadest array of opinions -- with opinions on the left generously represented. If raw, uninterrupted, uninterpreted public affairs reporting is your thing, it is possible in most large cities to overdose on twenty-four hours a day of one or even two C-SPAN channels. Mini-dish satellite broadcasting will reach the humblest home in the most rural setting -- as it does already in Europe and parts of the Third World. So what in the world are these people talking about? They cannot literally mean that their messages are drowned out in the sense that those who wish to hear them cannot. It is not as if the networks or The Wall Street Journal were actually jamming the broadcasting of anyone's views. What these people really mean is that not many people are interested; or are not interested for long; or, like myself, if interested are not at all persuaded.

3.42.

Since the publication of Professor Fried‘s comments in 1992, communications technology has continued to develop apace. It is now possible for private citizens to publish their ideas on the worldwide web or upload videos with minimal cost. Personal

73

Explanatory Note to the Electoral Finance Bill at pages 4-5 (―The additional regulation of third parties will – … ensure that election advertising by third parties cannot overwhelm the speech of speech of political parties and candidates‖). 74 Elena Kagan, ―Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine‖ (1996) 63 U. Chi. L. Rev. 413 at 466 (―The realm of public expression may have too much of some kinds of speech, too little of others; some speakers may drown out or dominate their opposite numbers. Self-conscious redistribution of expressive opportunities seems the most direct of correcting these defects and achieving the appropriate range and balance of viewpoint‖). 75 J. Skelly Wright, ―Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?‖ (1982) 82 Colum. L. Rev. 609 at 637. 76 Charles Fried, ―The New First Amendment Jurisprudence: A Threat to Liberty‖ (1992) 59 U. Chi. L. Rev. 225 at 252.

36

computers and printing services are more affordable than ever before. Countless websites offer news and commentary from almost any political perspective and it is possible to create one‘s own website at minimal cost. The notion that some ideas will go unexpressed in the absence of government regulation is therefore absurd. 3.43.

It is, however, possible that proponents of the ―drown out‖ rationale for the regulation of political speech mean that expensive advertisements will be more effective than less expensive advertisements and that those who print more pamphlets will reach a wider audience than those who print less. Since the more expensive and extensive advertising efforts will tend to be more effective, it might be thought that the cheaper advertising initiatives have been ―drowned out.‖ Used in this limited sense, we submit that the claim that less expensive advertising is ―drowned out‖ is simply a restatement of the inequality rationale for the regulation of political speech. Moreover, we consider the use of the expression ―drown out‖ in this context is highly inaccurate. Suppose that a trade union spends $300,000 on advertising advocating one set of policies and a business association spends $100,000 on advertising advocating a contrary set of policies. Is it sensible to say that the trade union ―drowned out‖ the voice of the business association? Would it make sense to say that the business association in turn had ―drowned out‖ the voices of people who disagreed with their position but did not spend any money on advertising?

3.44.

We submit that differences in the amount of spending on advertising cannot be conceptualised through the metaphor of ―drowning out.‖ Each group that spends money on advertising their ideas will have the opportunity to express their viewpoint amidst a vast range of other advertisements in the marketplace of ideas. A group‘s advertising budget will affect the type of advertising and the extent of advertising but even a limited budget does not preclude a group from disseminating their ideas. Some proponents of the regulation of political speech might nonetheless claim that all groups should have equal (or roughly equal) advertising resources and, therefore, the groups with greater resources should be restricted from using those resources for the purposes of political speech. However, this would be an equality-based rationale for regulating speech and not a rationale based on ensuring that those with fewer resources are able to disseminate their ideas.

The concern that regulation is required to control the “manipulative” effects of expensive political advertising is misguided 3.45.

77 78

A legislative assertion made by the British and Canadian governments, to which the House of Lords77 and the Supreme Court of Canada78 have deferred, is that wealthy

R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 2 WLR 781. Harper v Canada (Attorney General) [2004] 1 S.C.R. 827.

37

interest groups will purchase political advertising in such large amounts as to ―manipulate‖ public opinion. For example, Lord Bingham in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport, accepted the legislative judgment that the public interest in having a balanced public debate would be undermined if ―well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious.‖ 79 His Lordship identified the specific concern as being that ―objects which are essentially political may come to be accepted by the public not because they are shown in public debate to be right but because, by dint of constant repetition, the public has been conditioned to accept them.‖80 Lord Bingham illustrated the potential risks as follows:81 Hypothetical examples spring readily to mind: adverts by well-endowed multi-national companies seeking to thwart or delay action on climate change; adverts by wealthy groups seeking to ban abortion; or, if not among member states of the Council of Europe, adverts by so-called patriotic groups supporting the right of the citizen to bear arms. Parliament was entitled to regard the risk of such adverts as a real danger, none the less so because legislation has up to now prevented its occurrence.

3.46.

Baroness Hale‘s speech considered the potential emotional effects of the television advertisement in question. It is worth quoting Baroness Hale‘s discussion of this advertisement in full in order to assess the conclusion that allowing television advertisements such as this ―greatly risks distorting the public debate in favour of the rich‖:82 The proposed advertisement shows an animal‘s cage, in which a chained girl gradually emerges from the shadows into view; the screen goes black and the following messages appear: ―A chimp has the mental age of a 4 year old‖; ―Although we share 98% of our genetic makeup they are still caged and abused to entertain us‖; ―Please help us to stop their suffering by making a donation today‖; the final shot is of a monkey in a cage in exactly the same position as the girl was in. It takes little imagination to understand how powerful this would be, much more powerful than a static image on a bill-board or printed page, and beamed into every households in the land where anyone was watching commercial television at the time.

3.47.

The majority of the Supreme Court of Canada in Harper deferred to legislative judgment with respect to a related concern. While the Canadian voter ―must be presumed to have a certain degree of maturity and intelligence‖, nevertheless political advertising ―seeks to systematically manipulate the voter.‖ Therefore, ―the Canadian electorate may be seen as more vulnerable‖ and measures to protect the electorate by restricting the amount of political speech were held to be justifiable. 83

79

R (Animal Defenders International) v Secretary of State for Culture, Media and Sport at paragraph 28. Ibid at paragraph 28. 81 Ibid at paragraph 29. 82 Ibid at paragraphs 50 and 51. 83 Harper v Canada (Attorney General) at paragraph 80. 80

38

3.48.

The ―manipulation‖ rationale expressed in the majority judgments of these courts is not easy to understand. They do not explain: The distinction between persuasion and ―manipulation‖ in the context of political advertising (e.g. is all political persuasion thought to be ―manipulative‖ by definition, or are there substantive criteria, or does an argument somehow become ―manipulative‖ if it is expressed too often or too expensively?); What it means to be ―vulnerable‖ to an idea; What Lord Bingham means when he suggests that voters can ―conditioned to accept‖ an argument by virtue of its repetition; and Why the series of examples raised by Lord Bingham are assumed to pose a ―real danger.‖ Would advertisements advocating the opposite positions (i.e., urging action on climate change, supporting the availability of abortion services, and advocating gun control) also constitute a ―real danger‖?

3.49.

We submit that the language used by proponents of this ―manipulation‖ rationale is unhelpfully imprecise. We therefore believe it is helpful to begin with the starting point that ―arguments address the mind and the emotions; they threaten only persuasion.‖84 It is neither possible to buy votes nor elections; rather advertising offers an opportunity (whether by appeal to the voter‘s mind or emotions) to persuade a citizen to accept the merits of a point of view. Since it is not possible for the government to determine ex ante which ideas have merit or lack merit, the liberal society allows citizens to make up their own minds. An assertion that it is possible for the government to regulate to protect citizens from the ―manipulative‖ effects of speaking to one other on the subject of politics would therefore require a substantive conception of what types of political speech are unduly ―manipulative‖ by virtue of the amount of money expended or the character of the speaker. Of course people of diverse political inclinations sometimes think that their fellow citizens adhere to seemingly irrational beliefs by virtue of populist demagoguery or superficial arguments. The thought that others are deeply misguided may reflect the depth of one‘s convictions on an issue. (The comments above with respect to free trade are arguably an illustration of this). However, it is, with respect, a misuse of language to speak of protecting other citizens from ―manipulation‖ if that term refers to nothing more than the extensive dissemination and repetition of ideas with which one disagrees.

3.50.

The language deployed by proponents of the ―manipulation‖ rationale for the regulation of political speech is not only troublingly incoherent but also designed to rationalize some form of legislative intervention to protect the ―vulnerable‖ citizens from ―big

84

Charles Fried, ―The New First Amendment Jurisprudence: A Threat to Liberty‖ (1992) 59 U. Chi. L. Rev. 225 at 250.

39

money,‖ which threats to ―distort‖ their judgment. As Professor Kathleen Sullivan explains, ―this epistemology dictates a government response. If we are socially malconstructed, in their view, government should come to the rescue.‖85 We take a less pessimistic view of the capabilities and robustness of citizens (and, in any case, agree with John Stuart Mill that the development of such capabilities is strengthened only through their use).86 We respectfully agree with Rand J‘s comments in Switzman v Elbing: ―Parliamentary government postulates a capacity in men, acting freely and under self-restraints, to govern themselves‖. 87 In our submission, there can be no place for paternalism with respect to the presentation of arguments to voters: citizens have the dignity and the right to listen to the arguments and make up their own minds. Transparency 3.51.

We are generally supportive of the Ministry of Justice‘s fourth principle, ―transparency‖. However, there are two matters of concern that we wish to note.

3.52.

First, we submit that the principle requires some clarification. In particular it is important to establish both what and who must be transparent. In this respect we submit that it is important to draw a distinction between state action and the activities of citizens. We believe that while most people would accept that the affairs of government should be transparent, private individuals are entitled to respect for the privacy of their own activities. In our view this distinction should be reflected in the guiding principles.

3.53.

Second, we submit that there are two distinct elements to transparency which should each be recognised by a separate principle. Those elements are: The use of public monies in connection with the electoral process should be transparent. There is a public interest in the disclosure of donations to political parties and candidates if those donations raise the possibility of a quid pro quo by virtue of their size and nature.

3.54.

The first principle concerning the use of public money is a specific application of the wider principle that democratic governments should be accountable to the citizens they serve. The second principle is specific to the electoral context and recognises that although donations are a sign of civic engagement and not intrinsically harmful, they

85

Kathleen Sullivan, ―Free Speech Wars‖ (1994) 48 SMU L. Rev. 203, 210. John Stuart Mill, On Liberty: ―The human faculties of perception, judgment, discriminative feeling, mental activity, and even moral preference, are exercised only in making a choice … The mental and moral faculties, like the muscular powers, are improved only by being used‖. 87 [1957] SCR 285 at 306. 86

40

can sometimes raises inferences of quid pro quo. In agreement with the Issues Paper, we believe that the best way to deal with such inferences is through transparency. 3.55.

We submit that the above concerns are met by dividing the Ministry of Justice‘s fourth principle (―transparency‖) into two separate principles (the second and third principles below) and by adding an additional principle to recognise that the activities of citizens are in a different category to those of the state. The transparency principle is thus replaced with the following three principles: First, election laws should protect the reasonable privacy interests of citizens; Second, the use of public monies in connection with the electoral process should be transparent; and Third, there is a public interest in the disclosure of donations to political parties and candidates if those donations raise the possibility of a quid pro quo by virtue of their size and nature.

3.56.

We already discussed each of these principles above.

4.

Disclosure of donations

4.1.

Four principal issues concerning the disclosure of donations are raised in the Ministry of Justice‘s Issues Paper: Whether anonymous donations should be permitted; Whether the current disclosure thresholds are appropriate; Whether there should be a limit on donations from a single source; and Whether there should be a prohibition on donations from certain sources.

4.2.

We only wish to comment in any detail on the first issue. For the remaining issues we provide brief answers to the questions raised where we have a concluded view.

Anonymous donations should be permitted via the protected disclosure regime 4.3.

We begin by noting the definition of anonymity adopted by the Ministry of Justice in the Issues Paper:88 ―A donation is not anonymous if the constituency candidate or political party does not know the donor‘s identity, and could not reasonably be expected to know it. A donation is not anonymous

88

At paragraph 2.11.

41

if the candidate or political party knows its true source (or they have a good idea what the source was, or if they could have found out without difficulty).‖

4.4.

Adopting this definition of anonymity, we submit that anonymous donations should be permitted. This follows as a result of our approach to the guiding principles and the balance to be struck between transparency (where the possibility of a quid pro quo is raised) but otherwise giving effect to the reasonable privacy interests of citizens.

4.5.

At this point we simply make three brief points in connection with the issue of anonymous donations. First, donations are a type of political speech which is protected by s 14 of the Bill of Rights. Second, anonymous donations do not raise quid pro quo concerns and so the rationale of limiting the influence of wealthy individuals or groups does not justify limiting freedom of speech. Third, in the context of anonymous donations it is not clear what the transparency concern is, so this rationale also fails to justify limiting freedom of speech.

DONATIONS ARE A TYPE OF POLITICAL SPEECH WHICH IS PROTECTED BY SECTION 14 OF THE BILL OF RIGHTS 4.6.

In our submission a donation to a political party or candidate is a form of speech protected by the freedom of expression. In Buckley v Valeo89 the Supreme Court of the United States recognised that although limits on donations were not as restrictive as expenditure limitations, a political donation is still a form of speech. The Court noted that ―[a] contribution serves as a general expression of support for the candidate and his views‖.90 In this respect we note that some individuals may prefer to contribute to public discussion by financing the message of other participants in the debate, rather than speaking personally. Others may choose to donate because the lack the time or resources to individually take part but wish to associate with and encourage a particular individual or party. Whatever the reasons for donation, we submit that it is plain that making a financial contribution to another‘s speech is itself a form of expression.

4.7.

Given that donations are a form of political speech, it falls to those who wish to limit them to justify such limitations. Two justifications for prohibiting anonymous donations are suggested by the Ministry of Justice in the Issues Paper. A transparency justification is advanced in paragraph 2.17 and an influence justification in paragraph 2.18. We consider both justifications below.

89 90

424 US 1 (1976). At 21.

42

GENUINELY ANONYMOUS DONATIONS DO NOT RAISE QUID PRO QUO CONCERNS 4.8.

We address the influence justification first. This is explained in the Issues Paper in this way:91 Supporters of the restrictions on anonymous donations argue that voters have the right to know who is funding the constituency candidate or political party they are thinking of supporting. The argument here is that disclosure of all significant donations helps to limit the influence that wealthy individuals or groups can exert through their donations. If a person or group wants to influence a public process such as an election, arguably there is a trade-off with their right to privacy.

4.9.

We submit that this rationale is unconvincing. It is open to the objection that if the donation is genuinely anonymous then there can be no suggestion of a quid pro quo and no suggestion of wealthy individuals influencing political parties. A donor whose identity is unknown to her benefactor can hardly expect to receive anything in return.

4.10.

In this regard we note that following the establishment of the protected disclosure scheme administered by the Electoral Commission, there is an apparently reliable and independent process by which donations can be anonymously made, thus reducing any concerns that the identities of large anonymous donors are not unknown to the recipients.92 So far as we are aware, no concerns about the reliability of the protected disclosure regime were aired during or after the 2008 general election.

4.11.

Given that the possibility of a quid pro quo does not arise, the influence justification is reduced to the claim that the public have a right to know who is participating in the political process by financially supporting candidates or parties. The rationale for this view is presumably that some voters may consider it relevant that individual X is supporting party Y (unbeknown to Y). Although some voters may find this information interesting, in our view it is not a compelling state interest as it does not raise any concerns about the legitimacy of the election process. We repeat our earlier observation that what is interesting to the public and what is a matter of legitimate public concern are not the same thing. Absent an analysis of what the compelling state interest is, we submit that as Principle 693 is not engaged, Principle 494 should prevail.

IN

THE CONTEXT OF ANONYMOUS DONATIONS IT IS NOT CLEAR WHAT THE TRANSPARENCY

CONCERN IS

91

At paragraph 2.18. The protected disclosure scheme is explained in the Issues Paper at paragraphs 2.13 to 2.14. 93 There is a public interest in the disclosure of donations to political parties and candidates if those donations raise the possibility of quid pro quo by virtue of their size and nature. 94 The election laws should protect the reasonable privacy interests of citizens. 92

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4.12.

The transparency justification is alluded to in the Issues Paper in these terms: 95 ―The rules on anonymous donations complement the rules requiring disclosure of donor details when donations exceed a certain amount. Permitting anonymous donations would lead to a less transparent donation regime.‖

4.13.

In our view, given the absence of any possible suggestion of a quid pro quo this concern is without merit. It stems from the overly broad way in which the ―transparency‖ principle is framed in the Ministry of Justice‘s Issues Paper.

Summary 4.14.

We submit in answer to the questions raised by the Ministry of Justice: Q2.1 Should direct anonymous donations be permitted to constituency candidates and/or to political parties? If so, is the current threshold appropriate? A2.1 In our submission anonymous donations should be permitted to both candidates and political parties. So long as donations are genuinely anonymous we submit that disclosure is not justified as quid pro quo concerns do not arise. We further submit that the best way to ensure genuine anonymity is through the protected closure regime. This regime ensures that there are no quid pro quo concerns while at the same time recognising the privacy interests of donors. We accept that large direct anonymous donations may give rise to a suspicion that there is not genuine anonymity. For this reason we accept that some threshold is appropriate, although we do not have a concluded view on what the appropriate level is. Q2.2 Should there continue to be a disclosure requirement for indirect anonymous donations (for example, through intermediaries such as trusts) to constituency candidates and/or to political parties? If so, is the current ($1000) appropriate? A2.2 Our response to this question mirrors our response to Q2.1 above. Q2.3 Should the protected disclosure regime for donations to political parties be retained? A2.3 Yes. We support the retention of the protected disclosure regime. In our submission there should be no limit on the amount of money that a party may receive through this mechanism or that an individual donor may give. As the regime provides an assurance of anonymity and thus addresses the quid pro quo concern, there is no justification or need for limiting donations. In this case the reasonable privacy interests of citizens should be respected.

95

At paragraph 2.17.

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Q2.4 Should the name and address of donors who donate above a certain threshold be disclosed (that is, made publicly available)? A2.4 Yes. We accept that certain donations by virtue of their size and nature may give rise to quid pro quo concerns. In such cases it is appropriate to require disclosure. Q2.5 Should the disclosure thresholds be left as they are? Raised or lowered? If so, to what level? A2.5 We submit that the current thresholds are too low. In our view, a $10,000 donation is unlikely to give rise to a quid pro quo concern giving its relatively small size in comparison with total election expenditure. However, we do not have a concluded view as to what the exact threshold level should be. Q2.6 Should the same disclosure threshold apply to donations made to constituency candidates, and to donations to political parties (including donations made through intermediaries, such as trusts)? A2.6 We do not have a concluded view on this issue. Q2.7 Should the disclosure threshold for political parties (currently set at $10,000) be the same as the limit on anonymous donations (currently set at $1,000) to reflect the equivalent regime that exists for candidates? A2.7 We do not have a concluded view on this issue. Q2.8 Should there be a limit on donations from a single source? If so, what should it be? Should it be inflation adjusted? A 2.8 No. We support the retention of the current position. 4.15.

We do not have concluded views in relation to questions 2.9 to 2.12.

5.

Limits on donations

5.1.

In the same way that spending limits on candidates limit freedom of expression, so too do limits on the size of donations that may be made by individuals to political parties or candidates. Freedom of expression includes not only financing of your own speech, but also the financing of speech undertaken by others. People have the capacity to donate time, celebrity, charisma, and mana, amongst others, to a campaign in quantities limited only by the natural scarcity of those resources. Donation of those resources is part of individuals' freedom of expression. The right to freedom of expression should not change by virtue of the particular resource being donated.

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5.2.

Moreover, limits on donations are necessarily arbitrary. The idea that spending up to a limit should be protected by law as a right, but that the marginal dollar does not qualify for protection as a right, is absurd.

6.

Public funding of political parties and candidates

6.1.

We do not support the creation of a system for publicly funding political parties or constituency candidates.

7.

The exclusion of express private political advocacy from radio and television is unjustified

7.1.

The Broadcasting Act 1989 prohibits private persons from expressly advocating the success or defeat of a political party or candidate. This restriction, which is contained in section 70(1) of the Broadcasting Act, does not exclude issue advocacy (although for the reasons discussed below, we believe that this distinction can be a blurry one). The scope of this restriction has been helpfully discussed by Professor Geddis in his text, Electoral Law in New Zealand,96 and by Professors Burrows QC and Cheer. 97

7.2.

We submit that this limitation should be removed for the following reasons.

7.3.

First, the restriction on express political advocacy by private persons limits freedom of speech.

7.4.

Second, such a restriction would need to be ―demonstrably justified‖. In its Issues Paper, the Ministry of Justice discusses, as possible justifications: 98 The ―level playing field‖; and The presence of restrictions on political parties with respect to radio and television.

7.5.

We consider these potential justifications weak. The first justification is generally flawed for the reasons we discuss throughout this submission. In any event, it offers no justification for treating radio and television differently than newspapers and books.

7.6.

We think that the second justification again reflects the tendency for election campaign restrictions to expand in a self-justificatory way. We address that argument in section 9 of this submission in the context of considering whether general spending limits should apply to ―parallel campaigners‖ on the logic that they apply to political parties and candidates. This justification is no stronger in the context of radio and television than in

96 97

98

(Lexis Nexis, 2007) at pages 164-165. (2005, 5th ed) at pages 484-485.

Issues Paper at paragraph 2.82 and 2.83. 46

the context of general spending restrictions and it is therefore unnecessary to repeat the arguments against it. 7.7.

We note that overseas case law has upheld similar limitations on the basis that radio and television are somehow special and, therefore, require greater restrictions on political advocacy. For example, in Animal Defenders International, the House of Lords held that restrictions on political advocacy on television were justified because television is ―more pervasive and potent than any other form of media". 99 Accordingly, the ban in the United Kingdom was upheld because television, ―with its dissemination and immediacy would have a stronger effect on the public than other means of communication‖. 100

7.8.

The approach of the House of Lords is flawed in two respects. First, the distinction between television and radio and other forms of communication are arbitrary (e.g., citizens increasingly seek and receive audiovisual news, entertainments, and political discussion online).101 Removing arbitrary media-specific rules would be consistent with the Ministry of Justice‘s comments (with which we broadly agree) concerning the importance of media neutrality in the formulation of campaign finance laws.

7.9.

Second, the potency of television and radio is as much a reason to allow express private political advocacy as to ban it. The claim that television and radio should be carefully guarded because they are potent tools of communication is a non sequitur unless one also agrees with the general rationales for limiting private political advocacy (such as the ―drown out‖ or ―manipulation‖ rationales discussed in section 3 of this submission). In our view, those general rationales are weak when applied to books and pamphlets and no stronger when they come to television advertisements.

7.10.

We would, therefore, answer the Ministry of Justice‘s questions as follows: Q.2.27 Should parallel campaigners be able to campaign on radio and television? A.2.27 Yes.

99

R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 2 W.L.R. 781 at paragraph 30. 100 Ibid at 2. 101 For example, (1) internet users in New Zealand spent five hours less a week watching television than non users and (2) in 2008, 77% of New Zealanders used the internet on a regular basis, of which the majority ranked the technology as a more important source of information than the traditional media sources (television, newspapers and radio): see World Internet Project New Zealand, International Comparisons, Highlights from a New Zealand Perspective 2008, AUT University, which can be accessed at: http://www.aut.ac.nz/research/researchinstitutes/icdc/projects/world-internet-project.

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Q2.28 Should restrictions on radio and television advertising by parallel campaigners be removed if there is a limit on spending? A.2.28 Yes (although we submit that there should not be a limit on spending). 8.

Spending limits on political parties and candidates

8.1.

For the reasons expressed elsewhere in this submission, we disagree in principle with spending limits on political advocacy. However, we make four submissions that relate specifically to spending limits on political parties and candidates: First, there is no convincing evidence that the absence of spending limits on political parties or candidates would undermine the integrity of the electoral process or public confidence in free and fair elections; Second, there is no convincing evidence that campaign expenditure is highly determinative of election outcomes; Third, spending limits may have pro-incumbent consequences; and Fourth, spending limits tend to reduce voter turnout.

There is no convincing evidence that the absence of spending limits on political parties or candidates would undermine the integrity of the electoral process 8.2.

Sometimes supporters of restrictions on spending on political advocacy present the absence of such limits as a threat to the integrity of the electoral process and the functioning of the democratic process. As a starting point, it is pertinent to observe that the United States and Australia do not impose limits on spending for political advocacy during an election period. That two of the world‘s leading democracies deliberate during election periods without restrictions on how much can be spent on political advocacy makes clear, in our view, that the absence of such restrictions does not fundamentally implicate the integrity of the electoral process. (Indeed, we submit that they are very much stronger because of their strong commitment to freedom of speech).

8.3.

We also note a related, and regrettable, tendency for some supporters of campaign finance reform to sometimes express their arguments in favour of spending limits on political advocacy using the rhetoric of combating corruption (or, as it is sometimes qualified, ―the perception of corruption‖). We believe it is helpful that the Ministry of Justice has not adopted that rhetoric in its Issues Paper. While there may be legitimate anti-corruption objectives associated with, say, the rules relating to the disclosure of donations, it is unhelpful and, with respect, inaccurate to suggest that spending limits on political parties are closely connected to the prevention of political corruption. (In the 48

specific context of the United States, there is also a strategic dimension to framing the purpose of such measures in terms of combating corruption because the Supreme Court indicated in Buckley v Valeo that equalising relative influence is an impermissible basis for restricting political speech). 8.4.

If supporters of spending limits on political parties are principally motivated by their concern that the absence of spending limits would exacerbate inequality, it is appropriate for their concerns to be addressed on that basis rather than unhelpfully raising the red herring that spending limits are necessary to ensure that elections are somehow ―cleaner‖ or non-corrupt. We address that concern below.

There is no convincing evidence that campaign expenditure is highly determinative of election outcomes 8.5.

One of the concerns held by those advocating spending limits on campaign expenditure is that spending will have a large influence on voting patterns. 102 Sometimes explicit is the fear that campaign expenditure will favour political parties that receive large or numerous donations.103 However, the relationship between spending and electoral performance is a complex one. In our submission, there is no convincing evidence that campaign expenditure is highly determinative of election outcomes. However, we believe it is important to emphasise two points at the outset. First, while we do not have concluded answers on many aspects of the relationship between spending and election outcomes, we believe that it is the proponents of restrictions on political speech that bear the burden of establishing the empirical basis of their rationale for limiting speech. Second, uncertainty cuts both ways: it is possible, as we discuss below, that spending limits have unintended consequences.

8.6.

We discuss below the studies considering whether this is a statistical causation (as opposed to mere correlation) between spending and electoral outcomes. However, there is a preliminary point that even the correlation between spending and outcome is not clear-cut. Table 1 below illustrates this. Despite spending less in 2001 than the Conservative Party, the Labour Party won far more seats. However, despite increasing its spending by nearly 64% in the 2005 UK parliamentary elections – and despite spending virtually the same amount of money as the Conservative Party in 2005 – the Labour Party had a significant net loss of seats. It is possible to surmise a number of reasons for this based on, for example, national partisan swings or the likelihood that many Labour Party gains in 2001 were in electorates which would be difficult for that party to hold in the long-term due to its policies. However, there seems to be no basis for explaining the changes in electoral performance based on spending.

102 103

Hansard, Volume 640, page 10785, Fitzsimons. Hansard, Volume 640, page 10775, Burton.

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Table One: Comparison of 2001 and 2005 United Kingdom General Election

Conservative Party Labour Party Liberal Democrats

8.7.

Number of Seats Won 2001 166 412 52

Number of Seats Won 2005 £12,751,813.21 198 £10,945,119.00 355 £1,361,377.00 62 Expenditure 2001

Expenditure 2005

Seats Gained

£17,852,240.75 £17,939,617.00 £4,324,574.00

32 -57 10

Percentage Percentage increase in increase in seats spending £5,100,427.54 19.28% 40.00% £6,994,498.00 -13.83% 63.91% £2,963,197.00 19.23% 217.66% Increase in spending

For completeness, we also set out the New Zealand figures for the previous two elections in Table Two below: Table Two: Comparison of 2005 and 2008 New Zealand General Election Number of Ependiture Number of Ependiture Seats Won (party and Seats Won (party and 2005 candidate) 2005 2008 candidate) 2008

ACT Green Labour Maori National New Zealand First United Future

2 6 50 4 48 7 3

$1,375,743.69 $834,616.31 $4,633,162.98 $372,032.02 $3,797,428.77 $771,193.06 $409,154.41

5 9 43 5 58 0 1

$1,375,558.52 $1,748,887.27 $3,989,761.60 $518,325.46 $3,797,534.77 $1,165,939.32 $294,301.71

Seats Gained 3 3 -7 1 10 -7 -2

Increase in spending -$185.17 $914,270.96 -$643,401.38 $146,293.44 $106.00 $394,746.26 -$114,852.70

Percentage increase in seats

Percentage increase in spending

150.00% 50.00% -14.00% 25.00% 20.83% -100.00% -66.67%

8.8.

Accordingly, even the correlation between spending and electoral outcomes is not always clear-cut. However, we acknowledge that the idea that there is a strong causal connection between spending and electoral performance seems persuasive to some people because there is often a correlation between campaign expenditure and electoral victory. Since the parties that spent the most often seem to win more seats than parties that spend less, the thinking goes that the spending ―bought‖ the election result.

8.9.

However, the correlation between campaign expenditure and electoral victory need not imply that campaign expenditure is a sufficient or even necessary condition for electoral victory. If correlation implied causation, one could state with equal authority that a politician's capacity to solicit votes also suggested they were particularly effective at soliciting donations. Variations in campaign spending that are caused by factors which also directly affect the election outcome serve to confuse the literature on the efficacy of campaign expenditure.104

8.10.

An example is illustrative. Let us assume that charismatic candidates are more effective at soliciting campaign contributions. Let us also assume that most charismatic candidates win electorate seats. The data would show a correlation between campaign

104

Jeffrey Milyo, The Electoral Effects of Campaign Spending in House Elections: A Natural Experiment Approach, Citizens‘ Research Foundation, Los Angeles, 1998, page 2.

50

-0.01% 109.54% -13.89% 39.32% 0.00% 51.19% -28.07%

expenditure and electoral victory. However, it is equally true to say that there is a relationship between charisma and raising money, and charisma and electoral victory. It would be unclear whether charisma or campaign expenditure had affected the electoral result. For example, the success of Senator Obama (as he then was) at both fundraising and securing votes during the 2008 presidential campaign will have undoubtedly been driven in part by personal characteristics, such as charisma. More generally, the preferences of many voters and donors tend to be static, so a politician whose policies appeal to them is likely to get both more donations and also more votes than a politician with unpopular policies. 8.11.

Another factor that can complicate the analysis of the effect of election expenditure is a national level partisan swing. If one party becomes relatively more popular nationwide this will tend to manifest itself in more enthusiasm from its existing supporters (who may donate more money and time to the campaign) and increases in membership. As a result the party‘s donations and spending levels may increase as a reflection of improvements in its standing. The partisan swing is, also, reflected in independent voters choosing to vote for that party because its arguments seem more salient and its campaign has more momentum. It is hard to isolate the effects of spending because the changes in its political fortunes affect both its capacity to spend money (through donations) and also the level of its support among voters generally.

8.12.

Studies which seek to isolate the effects of increases in campaign spending that are unrelated to a candidate‘s direct appeal to voters are one way to determine the nature of the relationship between campaign expenditure and election outcomes. While these studies are difficult to undertake, some recent studies have used sample selection to reduce the bias shown above. One study sought to isolate campaign spending by limiting the sample to those elections in which the same candidates faced one another on multiple occasions – a sample which consisted of 633 elections in the United States between 1972 and 1990.105 Assuming that candidate quality therefore remained the same, and controlling for other factors such as incumbency and national-level partisan swings, the author found that ―campaign spending has an extremely small impact on election outcomes.‖106 The figures produced by the study have stood up to scrutiny, with an extension of the basic model to more recent repeat challenger elections finding similar results.107

105

Steven Levitt, ―Using Repeat Challengers to Estimate the Effects of Campaign Spending on Electoral Outcomes in the U.S. House,‖ Journal of Political Economy 102 (1994): 777–798, 783. 106 Ibid at 780. 107 Jeffrey Milyo, The Electoral Effects of Campaign Spending in House Elections: A Natural Experiment Approach, Citizens‘ Research Foundation, Los Angeles, 1998, at 11.

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8.13.

Another concern is that, while marginal campaign expenditure has only a small impact on election outcomes, the capacity for others to spend large amounts of money may act as a disincentive for some candidates or political parties from contesting an electorate seat or seeking party votes in the first place. This is similar to the fear that spending by some candidates will ―drown out‖ messages by others. Studies have also sought to determine whether this is a consequence of high levels of campaign expenditure.

8.14.

One study sought to isolate the effects of increases in campaign spending by examining the effects of incumbent wealth. Although the United States has limits on private donations, candidates themselves are able to donate as much as they wish to their own campaigns. By examining whether wealthy incumbents fare better than non-wealthy incumbents, the study sought to examine whether well-funded candidates prevent high quality challengers. Having first concluded that ―the net effects of wealth on Challenger Expenditure and the incumbent's Vote Share are small and insignificant,‖ the authors found that ―[i]ncumbent wealth does not deter challengers or high-quality challengers.‖108 Some studies on the effect of incumbent wealth have gone further, suggesting that those who receive large donations harm their prospects in elections. 109 Nine of the top ten self-financed candidates in House of Representative and Senate races in the United States between 2002 and 2006 resulted in the wealthiest candidates losing. 110

8.15.

We acknowledge that there are other studies, which find contrary conclusions to those summarised above.111 Given the complexities of trying to disentangle characteristics that are both instrumental in helping candidates raise money and win elections, all the evidence needs to be approached carefully. We would make two related submissions: First, in the face of detailed studies which suggest that (a) marginal campaign expenditure has only a small effect in increasing the likelihood of electoral victory, and (b) there is no relationship between campaign spending and the quality of opponents, we submit that there is a weak empirical basis for the rationale that spending should be limited because spending is strongly determinative of electoral outcomes. At a minimum, more work would be required on the part of proponents of spending limits because their empirical112 claims are not ―demonstrably justified‖; and

108

Jeffrey Milyo and Timothy Groseclose, ―The Electoral Effects of Incumbent Wealth,‖ Journal of Law and Economics 42 (1999): 699–722, page 708. 109 Ibid at 711. 110 http://www.forbes.com/2009/06/11/terry-mcauliffe-virginia-primaries-opinions-columnists-fundraising.html. 111 See, e.g., Stephen Ansolabehere and James Synder, ―The Inter-Election Dynamics of Campaign Finance: US House Elections, 1980 to 1994‖ (1996). 112 For the reasons set out above in section 3, we do agree that the rationale is correct in principle either.

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Second, if further analysis by the Ministry of Justice on the empirical basis for restrictions found that the results were ambiguous, we would submit that the tie should be broken in favour of freedom of speech. 8.16.

We also acknowledge that the results of these studies raise an obvious question: why do political candidates seek to raise money if the effect of campaign expenditure on electoral victory is not strong (let alone decisive)? We do not have an answer on this. There are several plausible hypotheses (though we acknowledge they are speculative at best): The first hypothesis is that political candidates are themselves confusing correlation with causation. Since it is true that the ability for a candidate to express herself in her own words through paid advertising is useful to a campaign, there are reasons to think that politicians might assume that the marginal return of each dollar of advertising will always be positive. A second hypothesis is that there may be institutional incentives for a politician to focus on fundraising (e.g., successful fundraiser may be valued by his or her colleagues within a party). A third hypothesis is that since politicians cannot predict how certain aspects of the campaign will turn out, they prefer to deploy the maximum amount of money available in case it does make a difference. For each individual politician, being elected or not is a win/lose payoff, which might encourage them to spend more money than is efficient. Moreover, the decision to spend a marginal dollar that has already been raised may have a low opportunity cost for the candidate or party.

8.17.

While these hypotheses are speculative, we think there may be something in them. At a minimum, however, they indicate that there is no logically necessary basis to assume that the marginal dollar spent on election advertising must be very important to the outcome simply because politicians think so. With respect, we believe the Neill Committee in the United Kingdom fell into this error. It acknowledged that, ―it cannot be proved that high spending buys elections‖ 113 but thought that ―common sense‖ suggests that high spending may make the difference. 114 We submit that such a rationale for restricting free speech cannot be ―demonstrably justified‖ on such weak empirical foundations.

113

Fifth Report of the Committee on Standards in Public Life: The Funding of Political Parties in the United Kingdom (1998) at 1029. 114 Fifth Report of the Committee on Standards in Public Life: The Funding of Political Parties in the United Kingdom (1998) at 10.28.

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Spending limits tend to have pro-incumbent consequences 8.18.

Although the effect of campaign expenditure on electoral outcomes is minimal, most studies find that campaign expenditure by challengers is more effective than campaign expenditure by incumbents.115 The primary reason for this is that challengers have to create a profile that incumbents usually already have by virtue of their status as incumbents.

8.19.

The extent of the benefit to challengers relative to incumbents of campaign expenditure is much disputed. Early studies suggested that the size of the benefit to challengers relative to incumbents was large.116 More recent studies, including those which seek to adjust for bias by selecting samples that avoid differences in challenger and incumbent quality, suggest that the additional benefits of campaign expenditure to challengers are relatively small. 117 Regardless of the size of the benefit spending limits will have proincumbent consequences to the extent that campaign expenditure is less effective when undertaken by incumbents as opposed to challengers. By reducing the capacity for challengers to create a profile that incumbents already have, political competition is inhibited.

8.20.

This is of particular concern as regards independent candidates. Independents typically lack the support of a party and party volunteers. In addition, independents lack the brand that a party will often give a candidate, suggesting that even more of an effort needs to be made to create a profile. These circumstances may weigh in favour of independent candidates spending more money in order to make up for the resources that others have – e.g., to spend more money on advertising than on door-knocking. Spending limits reduce the trade-offs that candidates can make, and because they impact different types of candidates in different ways have the potential to affect the ultimate victor.

8.21.

Of course, this discussion should not be confused with advocating for electoral rules which advantage challengers over incumbents. As stated above, confusing the purpose of the right to freedom of expression with creating specific outcomes or patterns of outcomes is misconceived. The point is that legal restrictions on freedom of speech not only inhibit the rights and freedoms of citizens and speakers but also create certain unintended consequences. In the context of this discussion, there is at least some evidence that suggests that spending limits designed may make elections ―fairer‖ and more ―competitive‖ may actually have the opposite effect.

115

Jeffrey Milyo and Timothy Groseclose, ―The Electoral Effects of Incumbent Wealth,‖ Journal of Law and Economics 42 (1999): 699–722 116 Ibid. 117 Steven Levitt, ―Using Repeat Challengers to Estimate the Effects of Campaign Spending on Electoral Outcomes in the U.S. House,‖ Journal of Political Economy 102 (1994): 777–798, 786

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Summary 8.22.

In summary, we submit in relation to the questions raised by the Ministry of Justice: Q3.1 Should there be limits on campaign spending for constituency candidates and political parties? A3.1 No, because (1) limits on campaign spending limit freedom of expression, (2) none of the rationales contemplated by the Ministry of Justice in its Issues Paper constitute ―demonstrably justified‖ bases, in principle, to limit freedom of expression, and (3) the empirical basis for the rationales contemplated by the Ministry of Justice in its Issues Paper are weak. Absent a clearly expressed and principled rationale for limiting speech that is based on credible empirical evidence, we submit there is no proper basis for imposing limitations on political speech.

8.23.

Since we do not believe that there should be spending limits on political parties or candidates, it follows that we do not have any proposals with respect to several of the Ministry of Justice‘s questions that deal with the machinery provisions of a regulatory system designed to control spending by political parties. However, we believe that it may be helpful to make some general comments on the policy considerations raised by those questions. Q3.2 If there are campaign spending limits, should the current limit for constituency candidates ($20,000) and political parties (a maximum of $2.4 million, if all electorates are contested) be retained or justified? A3.2 It is not possible to express a view on what the spending limit should be without knowing what the purpose of the limit is. Q3.3 Should campaign spending limits be adjusted regularly in line with inflation? If not should spending limits be regularly reviewed? Who should have responsibility for the review (for example, a parliamentary committee or an independent body)? A3.3 Yes, spending limits should be adjusted for inflation. Asking whether such limits should be reviewed regularly and who should have the responsibility for the review does not address the more important question: what would be the criteria for determining whether the limit should increase or decrease? Q3.4 When should the regulated campaign spending period start?

55

A3.4 There should be no regulated campaign spending period. However, if one is introduced, the likely consequence is that, other things being equal, political parties and candidates will shift some of their spending to the period immediately prior to the commencement of the regulated period (when they can speak more easily because the associated regulatory compliance burdens do not apply and their speech is not counted towards the overall limit). This consequence of creating a regulated period will concern some of those who support the imposition of spending controls. This will lead may people into a chain of logic, which we discussed elsewhere, that creates a self-justifying loop of expanding the regulated period. For example, if the regulated period is 3 months prior to the election, it is arguably necessary for the effectiveness of those controls to expand it to 6 months, which may make it necessary to expand it to the entire year leading up to the election (which was the position under the Electoral Finance Act). The logical end-point – which the British government has now reached – is to apply restrictions continuously (see, e.g., Ministry of Justice Party finance and expenditure in the United Kingdom, June 2008). The fact that successive reviews in the United Kingdom (1998, 2006, and 2007) have each found the need to propose extensions to campaign finance restrictions is a reflection on this problem. As Sir Hayden Phillips‘s 2007 report indicated, the law was ―at the same time inadequate and excessively complicated‖. 118 His solution included more comprehensive controls. It may also be helpful to address a related point: the claim that was sometimes been made by some opponents of the Electoral Finance Act that its key problem was its regulated period was too long. We agree that some of the practical problems relating to the Electoral Finance Act‘s operation would become less important under a new regime if the regulated period was short. Since, other things being equal, a great deal of spending would be likely to shift to the period before the regulated period, the significance of the problem of deciding what should be covered would be somewhat reduced (especially if the spending limits were also raised).119 However, it would be better for speakers and voters if political communications were made during the period when many undecided voters actually make up their minds on how to vote. Absent restrictions, speakers would be likely to focus their energies on the period close to the election. With restrictions in place, it might be desirable to publish their messages earlier to avoid the additional burdens and limits associated with those rules. Even aside 118

Strengthening Democracy: Fair and Sustainable Funding of Political Parties (15 March 2007) at 13. However, as we discuss below under section 9 of this submission, it would not go away because the dubious distinctions involved in deciding what constitutes a regulated publication and what constitutes unregulated issue advocacy lead to the creation of rules that are either clear but arbitrary or fact-specific but ambiguous. 119

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from our concerns based on freedom of speech, is not clear to us how this regulatory consequence (i.e., less speech that might influence our vote during the period when we decide how to vote) improves political discourse.120 Q3.5 How long should the regulated campaign spending period be? A3.5 In our view, this question raises the same issues as Q3.4. Q3.6 If the length of the regulated campaign spending period is decreased or increased, should there be a corresponding decrease or increase in overall spending limits. A3.6 If the government wishes to introduce spending limits then the effect of those limits would be depend on both the amount of the limit and the length of the period to which the limit applied. (It would also depend on other aspects of the regulatory regime, such as the definition of election advertising) For example, if the spending limits are high and the regulated period is short, then many of the disadvantages of spending limits are reduced (though not removed because (1) there would be regulatory compliance burdens associated with spending money under a system with limits and (2) in our view, the limits would remain objectionable in principle). If the spending limits are lowered and the regulated period is increased then the amount of political speech would be reduced to some extent (again, the reduction in speech would depend on the ability of speakers to incur expenses prior to the regulated period or publish speech that qualifies under an exception to the legislation). Which situation is better depends on what the legislation is trying to achieve. If policy makers think it is better to have less speech because that means wealthy speakers are able to publish less political advocacy then (putting aside Bill of Rights considerations) then they should favour low limits and long regulated periods. (As we discuss below in section 9 of this submission, whether that outcome is achieved depends, in part, on the lengths to which lawmakers are prepared to go to restrict speech, e.g., since the wealthy person could buy a newspaper company and, if he or she wished, exercise editorial control it would be necessary to impose restrictions on newspapers in order to prevent that person from having more influence than a person who doesn‘t own a newspaper but operates, say, a blog) We do not consider that situation to be an improvement and believe, in any case, that the restraints required to achieve it are inconsistent with the Bill of Rights. 120

Of course, it might be thought that the ―less speech when it matters‖ situation leaves voters better off because the additional speech would be published at the behest of ―big money‖, which, the argument goes, ―manipulates‖ voters and ―drowns out‖ competing ideas. We have set our view on the merits of that arguments above under section 3A of this submission.

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9.

Spending limits on private political advocacy

9.1.

We submit that, even if the government were minded to maintain or extend restrictions on expenditure applicable to political parties and candidates during the election period, any proposal to apply limits to private citizens should be independently justifiable. In particular, we submit that it is improper to rationalise restrictions on private citizens as desirable to ensure that restrictions on political parties and candidates are workable. Such an argument based on expediency is wrong for three reasons: First, it is inconsistent with the requirement under section 5 of the Bill of Rights that any limitation on fundamental rights should be demonstrably justified. Second, it falls into the error, also discussed earlier in this submission, of applying limits according to the internal operating logic of the regulatory system. This leads to a self-justifying process of extending the reach of the laws. By starting with the premise that one restriction is necessary, it is possible to rationalise other restrictions as being necessary to support the previous restriction (e.g., in order to prevent parties spending money outside the election period the election period should be increased from 3 months to the entire year; in order to prevent politicians being disadvantaged by the electoral restrictions that apply to them, the same limits should be applied to everyone). Third, extending limits to all citizens greatly increases the scope and complexity of the regulatory system because it is necessary to create rules and institutions to monitor the spending on political speech by private citizens. This will also lead to higher legal barriers to private citizens who wish to participate in public debate and Parliamentary democracy.

9.2.

Accordingly, we submit that, even if the government decides to create spending limits for political parties, those limits ought not to be carried over to the publication of political advocacy in New Zealand‘s civil society.

9.3.

Since we do not consider that any limits on private political advocacy ought to be created, it follows that we have no recommendations as to the amount of such a limit. However, there is a point of principle worth noting. If spending limits are to be imposed on private citizens, the amount of the limits should reflect their rationale. One way to test the coherence of ―level playing field‖ rationale is to consider what types of limits it might call for: First, the spending limits for ―parallel campaigners‖ might be the same as the spending limits applicable to political parties and candidates. This would put ―parallel campaigners‖, in one sense, on a ―level playing field‖ with political 58

parties and candidates. However, this approach is unlikely to be popular with many supporters of campaign finance reform because it would suggest much higher spending limits than under the Electoral Finance Act. It would also mean that some ―parallel campaigners‖ could spend more than other ―parallel campaigners‖ could afford. Second, the spending limits could be based on what a poorly resourced person or group could spend. This view would, at least, reflect the egalitarian rhetoric of the ―level playing field‖. It would also call for a preposterously low spending limit (e.g., many people can afford to spend almost no money on publishing political advocacy). Third, the spending limit could be based on some calculation of the cost of running a certain number of advertisements of a particular type during the regulated period (e.g., the cost of a full page advertisements in the major newspapers on five separate occasions during the regulated period). This approach pays only lip service to the ―level playing field‖ rationale (after all, how many people could afford one full page advertisement, let alone numerous full page advertisements?) It is also arbitrary in the sense that it postulates the advertising requirements of a standard ―parallel‖ campaign. Its practical advantage for policy makers is that it allows almost any spending limit to be rationalised (e.g., three full page advertisements instead of five, or calculate the limit based on the costs of direct mail to 20,000 households or the costs of direct mail on two separate occasions, or three). However, because this method is blatantly arbitrary, it illustrates the incoherence of the ―level playing field‖ rationale. Fourth, it would be possible to simply choose a figure that is higher than the national spending limits under the Electoral Finance Act. Again, this is an arbitrary method and it effectively substitutes a rationale of ―reasonableness‖ (without explaining what it is reasonable in relation to) for the ―level playing field‖ rationale (because the spending limit would be more than most people want to spend or could spend). If a spending limit for ―parallel campaigners‖ derived by this method were lower than the limits for political parties and candidates, this ought to be accompanied by some explanation. We do not doubt that it would be possible to rationalise lower limits (e.g., there are more third parties than political parties or political parties have costs not shared by private citizens, which makes it ―reasonable‖ that their spending limits are higher). A rhetorical variation on this approach would be to say that a certain amount of money constitutes ―big money‖. 59

9.4.

These potential methods of calculation (and there may be more) serve to illustrate, in our view, the incoherence of the ―level playing field‖ rationale. For that reason, if spending limits were to be introduced, we would not have a view on what amount would be ―reasonable‖ because we do not think there is any meaningful governmental purpose against which the reasonableness of limits could be evaluated.

9.5.

In summary, we submit in relation to the questions raised by the Ministry of Justice: Q5.9 Should spending by parallel campaigners be limited? A5.9 No. Q5.10 If a spending limit is imposed, what do you think the limit should be? A5.10 It is not possible to express a view on how the amount of spending limit should be determined without knowing what purpose the limit is intended to serve. Since we do not consider that the ―level playing field‖ rationale is coherent, we do not consider it possible to express a view on what spending limits are appropriate under that rationale.

10.

The meaning of election advertising

10.1.

The Ministry of Justice correctly observes that the meaning of ―election advertising‖ is extremely important for a system of campaign finance regulation whose coverage is largely defined by that concept. We also agree that the existence and scope of certain specific exceptions from the regime will have important implications for the functioning of the system.

10.2.

We make three submissions in relation to the Ministry of Justice‘s discussion of the meaning of ―election advertising‖ and the appropriateness of creating specific exceptions from the reach of that definition. First, there is a trade-off between preventing the ―exploitation‖ of the campaign finance system (i.e., speakers adapting their speech to ensure that they are outside the technical ambit of restrictions on political advocacy) and the ability of citizens to criticise politicians and advocate policies freely. Effective prevention of such ―exploitation‖ requires a relatively broad definition of ―election advertising‖ and imposes a heavier burden on the exercise of freedom of expression. Second, some campaign finance regimes distinguish between ―election advertising‖ and ―issue advocacy‖ in order to reduce the level of restrictions on political speech. Such distinctions tend to be very ambiguous (not least because elections are partly about issues). 60

Third, some campaign finance regimes create specific safe-harbours based on either the technological format used to express political ideas or the nature of the speaker. For example, some campaign finance regimes create specific protections for news media reporting. While media-specific safe harbours can provide clearcut protection for freedom of expression within those defined contexts, the safe harbours tend to be quite arbitrary, especially in view of the developments in modern communications technology. The rationale of preventing “exploitation” of gaps in the definition of “election advertisements” is a recipe for comprehensive regulation 10.3.

Since most proponents of campaign finance regulation do not propose a system of comprehensive regulation of political speech, it is necessary for the regulatory regime to distinguish between regulated and unregulated political speech during an election period.

10.4.

The definition of such safe harbours or categories of election advocacy determines the boundaries of the campaign regulations and, accordingly, the definitional approach is very important to the operation of the campaign regulation system. The Ministry of Justice notes that there are competing considerations concerning the definition of ―election advertising‖ for the purposes of regulating political speech:121 On the hand, the argument is that if the definition is too broad, then regulation will be too heavy and it will restrict freedom of speech and limit participation.

10.5.

The Ministry of Justice‘s statement that regulation will restrict freedom of speech ―if the definition is too broad‖ is incorrect. Even limitations based on a narrow conception of ―election advertising‖ (e.g., direct, candidate-specific advertising such as ―John Smith is too inexperienced to be Prime Minister and you ought not to vote for him‖) restrict freedom of speech. However, the Ministry of Justice‘s implicit point is a fair one: broad definitions of ―election advertising‖ will impose restrictions on a greater range of political speech than narrow definitions and, therefore, entail more serious limitations on freedom of expression. Balanced against this consideration, the Ministry of Justice notes the potential for definitional loop-holes to be exploited:122 On the other hand, there is an argument that if the definition is too narrow, then it will not cover important types of advertising. This would leave obvious gaps that individuals could exploit to get around the law. Ultimately, this could make people cynical about how effective the rules really are.

10.6.

121 122

The Ministry of Justice‘s comments reflect a basic conundrum for proponents of campaign regulation. Absent outright regulation of all political advocacy, the definition

Issues Paper at paragraph 4.5. Issues Paper at paragraph 4.6.

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of ―election advertising‖ will exclude some types of communications that are capable of persuading voters. Other things being equal, many people will tend to frame their communications so as to fall within protected categories of speech or to comply with the requirements for a regulatory safe harbor. For example: If advocacy in support of a candidate is regulated but criticism of a candidate is not regulated, one would expect relatively more ―negative advertising‖ (i.e., criticism of the qualifications and policies of a candidate for public office). If direct calls to vote for or against someone are regulated but general discussion of their merits is not regulated, one would expect relatively more advertising that avoids using the ―magic words‖ to which regulatory consequences attach (e.g., ―John Smith understands our communities and is committed to putting them first‖ instead of ―Vote for John Smith‖). If advocacy for or against a named candidate is prohibited, one would expect relatively more advertising that is expressed in general terms (e.g., ―This November, vote for change‖ as opposed to ―Vote for the ABC party to get rid of the DEF party‖). If the definition of ―election advertising‖ draws a distinction between advocating for candidates and advocating for policies, one would expect to see relatively more advocacy in favour of policies proposals (e.g., ―This November, vote for tax cuts‖). If the definition of ―election advertising‖ excludes communications that encourage citizens to discuss public policy matters with their elected representatives, one would expect to see more communications of this kind (e.g., ―Phone your local MP and tell them to protect our families by voting no on the ABC bill‖). If the definition of election advertising excludes comparisons of the policy positions of the candidates or parties, one would expect to see relatively more communications framed as comparisons (e.g. an environmental group might produce a ―rating‖ for the parties‘ environmental policies). 10.7.

The Ministry of Justice uses the expression ―exploit‖ to describe the conduct of those who choose forms of expression that the law designates as unregulated and the tendency to avoid forms of expression that put the person at risk of penal consequences. We think that such language – if it is intended to denote disapproval, which is unclear – is not helpful for the purpose of dealing with these definitional problems. Ultimately, many people feel very strongly about certain matters of public policy and wish to try to persuade their fellow citizens. (Indeed, we consider that a law framed with sufficient 62

breadth as to prevent the types of communications listed above would be exceedingly draconian). When the law burdens certain modes of expression, it is to be expected that speakers will use methods which allow them to speak more easily. Nevertheless, we submit that it is clear that preventing speakers from ―exploiting‖ gaps in the definition of ―election advertising‖ would require the legislature to broaden that definition in response to such exploitation. As a consequence, the scope of campaign regulation has a tendency to broaden over time for the reasons explained by Thomas J (dissenting) in McConnell:123 It is not difficult to see where this leads. Every law has limits, and there will always be behavior not covered by the law but at its edges; behavior easily characterized as "circumventing" the law's prohibition. Hence, speech regulation will again expand to cover new forms of "circumvention," only to spur supposed circumvention of the new regulations, and so forth. Rather than permit this never-ending and self-justifying process, I would require that the Government explain why proposed speech restrictions are needed in light of actual Government interests, and, in particular, why the bribery laws are not sufficient.

The distinction between election advocacy and issue advocacy is blurry at best 10.8.

Some proponents of campaign finance regulation argue that the limitations on political speech associated with such reforms can be confined to ―election advertising‖, which preserves the ability for citizens to engage in unregulated ―issue advocacy.‖ It is therefore said that a carefully drafted campaign finance law can target communications that concern voting behavior while allowing wide open and uninhibited discussion of the merits of public policy ideas. We submit that this distinction is conceptually problematic and, therefore, the definitional distinction between election advocacy and issue advocacy is likely to be very ambiguous (a ―line drawn in the sand on a windy day‖). 124 In summary, we believe that the problem with the distinction is that elections are partly about issues and persuasive speech about issues is likely to have the potential to influence the voting choices of voters. The abstract distinction between advocating policies and advocating electoral outcomes tends to break down when applied to politically contentious policies during an election period. We submit that the problems with the election advocacy / issue advocacy dichotomy were illustrated by New Zealand‘s experience under the Electoral Finance Act. While we do not believe that overseas legal regimes have been able to draw a workable distinction either, we believe it is helpful to begin by discussing the Electoral Finance Act.

10.9.

The Electoral Finance Act governed the publication – broadly defined – of an ―election advertisement‖, which meant any form of words or graphics which can reasonably be regarded as, among other things, ―encouraging or persuading voters to vote, or not to vote, for a type of party or for a type of candidate that is described or indicated by

123 124

540 US 93 at 268 – 269 (2003). Ibid at 128.

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reference to views, positions, or policies that are or are not held, taken, or pursued (whether or not the name of a party or the name of a candidate is stated)‖. 10.10.

The enacted definition of ―election advertisement‖ was narrower than the original bill, which included ―taking a position on a proposition with which 1 or more parties or 1 or more candidates is associated‖. The removal of that limb of the definition was intended to make it possible to advocate a position on an issue without those publications being classified as ―election advertisements‖ provided that the words or graphics cannot reasonably be regarded as encouraging or persuading voters to vote or not vote for ―a type of party‖ that is described ―by reference to views, positions, or policies‖ (and therefore not subject to the obligations to disclose the promoter‘s residential address, or the other reporting obligations, spending restrictions, and criminal sanctions imposed under the Act). This possibility led the then Minister of Justice to observe that it is possible for advocacy groups to avoid the restrictions of the Act if they ―stick with the issues.‖125

10.11.

However, the distinction between protected ―issue advocacy‖ and speech which amounts to an ―election advertisement‖ under section 5(1)(a)(ii) was far from clear-cut. A central purpose of public debate on an issue is to persuade an audience of the merits of a perspective on public policy. Since candidates for office and political parties also hold views and positions with respect to those ideas, the difference between attempting to persuade the public in an election year of the correctness of a view on public policy and persuading the public to vote for a type of party by reference to that view is relatively indeterminate. Take, for example, a publication discussing the economic and social merits of adopting a particular policy (say, increasing annual leave) on which various candidates and parties take differing views. The publishers of the report believe their analysis is compelling and, therefore, wish to persuade readers of the merits of their perspective on the issue. Accordingly, the position of issue advocates under the Act was fraught with regulatory risk. As Rodney Harrison QC observed, ―this extremely vague and uncertain formulation potentially impacts on all manner of special interest advocacy during an election campaign.‖126

10.12.

The ambiguity of the definition is illustrated by the determination of the Electoral Commission in respect of the following advertisement published by the Employers & Manufacturers Association (Northern), Inc. (EMA).

125

644 NZPD 14013, 18 December 2007. R. Harrison QC, ―Political Free Speech in New Zealand: Dangerous Beast or Endangered Species‖, University of Waikato Seminar, Freedom of Speech and the Safety of the State, 10 July 2008 at 9. 126

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10.13.

Following a complaint, the Electoral Commission was required to determine whether the EMA‘s advertisement was an ―election advertisement‖ under section 5 of the Electoral Finance Act by virtue of encouraging voters not to vote for a candidate or party. The EMA submitted that its advertisement constituted protected issue advocacy. The thrust of their submission was summarised by the Commission as follows: 127 The EMA contends that the item is nothing to do with the election, and that it focuses on proposed changes to the Kiwisaver legislation which were likely to be the subject of parliamentary debate a few days after the item was published. Rather than encouraging or persuading voters to vote or not to vote in a particular manner, the item encourages readers to make their views known to the policymakers and legislators if they agree that the proposed changes advocated by Trevor Mallard are wrong.

127

Electoral Commission decision 2008-25, ―Employers and Manufacturers Association (Northern) Inc, election advertisement‖, 19 August 2008, at page 2 available at http://www.elections.govt.nz/files/200825_EMA_Stop_Mallard.pdf

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The EMA submits that changes to the definition of election advertisement in the Electoral Finance Bill during its passage were made expressly to address concerns that the original definition would catch issues-based advocacy by NGOs. The EMA also refers to the New Zealand Bill of Rights Act and submits that interpretation of the Electoral Finance Act must be consistent with the freedoms protected in that Act.

10.14.

The Commission concluded: 128 In the view of the Electoral Commission the impact of the newspaper item is a primary consideration in determining whether it is an election advertisement. The headlines, associated with the graphics which include ‗stop‘ signs, give an overall perception of wanting to stop Trevor Mallard and/or his party. The Commission concluded that the item is therefore an election advertisement within the meaning of section 63 of the Act (as defined in section 5), as it can reasonably be regarded as encouraging voters not to vote for the Labour Party and it was published in the regulated period.

10.15.

We do not have a concluded view on whether the Commission‘s assessment of the EMA‘s advertisement is correct in terms of the Electoral Finance Act. Indeed, we consider the definition of ―election advertisement‖ in the Electoral Finance Act so vague as to create a hazard that any statement criticising a political policy connected to a party or politician would fall within its reach. More fundamentally, however, we believe that the EMA‘s advertisement illustrates the point that the distinction between an ―issue advertisement‖ and an ―election advertisement‖ is conceptually and practically unworkable. The advertisement makes clear that the target of the EMA‘s concern is the proposed legislation affecting the ability of employees and employers to bargain over whether to take some of their remuneration in the form of Kiwisaver contributions or as an increase in their cash salary. Since the Hon Trevor Mallard was a sponsor of the legislation, the advertisement is also critical of Mallard role in relation to the legislation. The question is whether the advertisement criticising ―Mallard‘s Law‖ constitutes mere ―issue advocacy‖ or is intended to encourage voters not to vote for Mallard (or, as Scalia J might have asked:―Does attacking the King‘s policy attack the King?‖).129

10.16.

The Electoral Commission‘s reasoning suggests that the EMA‘s advertisement may have fallen outside the definition of an ―election advertisement‖ if it did not ―give an overall perception of wanting to stop Trevor Mallard and/or his party.‖ It is not clear whether this would have required the EMA to have omitted any mention of Mallard‘s role in relation to the legislation. For example, would an advertisement omitting the silhouette graphic of Mallard and the references to Mallard in the text have constituted an election advertisement where the advertisement nonetheless indicated that the government had introduced legislation that reflected the ―usual busybody attitude we‘ve come to expect from Wellington,‖ constituted an ―attack on workers,‖ was ―unfair,‖ ―discriminatory,‖ and ―wrong‖ and ―must be stopped‖? In our view, there would still be

128 129

Electoral Commission decision 2008-25, at page 2. Federal Election Commission v Wisconsin Right to Life, Inc., 551 US 449 (2007).

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a risk that such an advertisement would be regarded as an ―election advertisement‖ to the extent that it might be regarded as encouraging readers not to vote for government politicians by reference to the undesirability of a government policy. 10.17.

In order to constitute unregulated speech, it might therefore be necessary to remove any references to the government or the criticism of the sponsors of the legislation. Such an advertisement might state, in relevant part, that legislation ―had been introduced‖ (by whom?) that was ―unfair, discriminatory, and wrong‖ and which ―must be stopped.‖ Such an advertisement would be peculiar in at least two respects.

10.18.

First, voters would be aware which parties formed the government so it is not clear how such an advertisement would avoid the likelihood that readers who were persuaded that the legislation was ―unfair, discriminatory, and wrong‖ would be encouraged not to support government parties which they knew would have formulated the legislation.

10.19.

Second, such an advertisement would be unhelpfully uninformative by not being able to disclose the sponsors of the impugned legislation, where the parties stood in relation to the legislation (lest the advertisement by be regarded as encouraging readers to vote for or against those parties), or indicating what further steps a dissatisfied voter might take (such as whom the voter might call to express their opposition). It is not clear whether such an advertisement would become an ―election advertisement‖ (as that term was defined in the Electoral Finance Act) if it rebutted a publicly stated justification by Mallard in support of the legislation. If so, the scope for unregulated issue advocacy was narrow indeed because advocacy that does not deal with other publicly stated views or engage with contrary perspectives has greatly diminished value. An advertisement of the kind described above – careful to reduce the risk that readers might draw a connection between a policy and those who designed it – might avoid classification as an ―election advertisement.‖

10.20.

Nevertheless, in the case of policies whose proponents are widely known, it is open to question whether omitting the names of the sponsors would remove the risk of being classified as an election advertisement. Suppose for example that a lobby group wanted to publish an advertisement in opposition to the proposal for universal student allowances during the period following the announcement of that policy by the Labour Party during the 2008 election campaign. It is not clear that it would be possible to avoid the likelihood that readers who were persuaded by the arguments against universal student allowances would be encouraged not to vote for the Labour Party. Alternatively, advertisements which called for universal student allowances would be likely to encourage students who were persuaded by the arguments in their favour to vote for the Labour Party (being a party supporting that policy).

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10.21.

It might be thought that the uncertainty arising from the definition of ―election advertisement‖ in the Electoral Finance Act reflects the circumstances in which that enactment was drafted rather than a fundamental problem with the dichotomy between election advocacy and issue advocacy. We disagree on the basis that other regulatory regimes have similarly struggled to create a definition of election advocacy that preserves a clear and meaningful ability to engage in robust issue advocacy. This difficulty is illustrated by the approach of the United Kingdom Electoral Commission under the Political Parties, Elections and Referendums Act 2000 (PPERA). Certain features of the PPERA are similar to the Electoral Finance Act, including the definition of ―election material‖ under section 85(3), which relevantly includes, ―material which can reasonably be regarded as intended to— promote or procure electoral success at any relevant election for— […] candidates who hold (or do not hold) particular opinions or who advocate (or do not advocate) particular policies or who otherwise fall within a particular category of candidates, or otherwise enhance the standing— of any such candidates.‖ The United Kingdom Electoral Commission has published guidance on this provision, which provides as an example of ―election materials,‖ a ―pamphlet in support of banning blood sports and listing all parties and candidates that also support the ban.‖130 Therefore, as with the EMA‘s advertisement, speech identifying the position of political parties on an issue and expressing a policy preference in relation to that issue can constitute regulated election advocacy.

10.22.

Consider also the following example given by the Neill Committee in the United Kingdom in support of its view that ―third party‖ political speech should be limited: 131 Throughout the 1950s, but principally during election campaigns, the privately owned steel industry – both individual firms within the industry and the industry as a whole – campaigned against steel nationalisation, which also formed part of Labour‘s programme at that time. […] Not all political propaganda during election campaigns overtly promotes or opposes the election of particular parties. At the 1959 general election, a privately owned steel firm, Stewarts and Lloyds, ran a series of advertisements in daily and Sunday newspapers, most of which were thought to have large Labour readerships. The advertisements were clearly intended to discourage voters from voting Labour. That is not, however, what they said. On the contrary, the Stewarts and Lloyds slogan insisted: ―It‘s not your vote we ask for, it‘s your voice. Speak up against stateowned steel.‖

10.23.

On which side of the hazy line between issue advocacy and election advocacy should a ―third party‖ speech regulation (if such there must be) classify an advertisement of this kind? If the Stewards and Lloyds‘ advertisements persuaded some voters that the nationalization of the steel industry was unwise then the persuasive effects of the speech

130

Electoral Commission, ―Guidance for recognised third parties: Controlled expenditure and donations‖. Available at http://www.electoralcommission.org.uk/ 131 Fifth Report of the Committee on Standards in Public Life: The Funding of Political Parties in the United Kingdom (1998), paragraphs 10.73 – 10.78.

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would clearly have been disadvantageous to the electoral prospects of Labour candidates. For this reason, it might be thought that the speech should be treated as election advocacy rather than issue advocacy. However, it is not clear there is much scope for unregulated issue advocacy if any speech that persuades an audience that a policy associated with a political party will be detrimental is treated as regulated election advocacy. 10.24.

Indeed, the breadth of the United Kingdom‘s definition of election advertising reflects in part the legislature‘s dissatisfaction with an early case in which the Court took a narrow view of election advocacy. 132 In R v Tronoh Mines Ltd, the Court considered whether a jury could reasonably conclude that the publication of certain statements in a newspaper could be considered to have constituted the incurring of an expense ―with a view to promoting or procuring the election of a candidate at an election … or of otherwise presenting to the electors the candidate or his views or the extent or nature of his backing or disparaging another candidate‖ under section 63 of the Representation of the People Act 1949.133 The advertisement in question criticized the United Kingdom Labour Party‘s policy concerning corporate dividends and went on to include the following impugned statement: The coming general election will give us all the opportunity of saving the country from being reduced, through the policies of the Socialist government, to a bankrupt 'Welfare State'. We need a new and strong government with Ministers who may be relied upon to encourage business enterprise and initiative, under the leadership of one who has, through the whole of his life, devoted himself to national and not sectional interests.

10.25.

McNair J held that section 63 applied only to speech which concerned a particular candidate and did not apply to ―general political propaganda, even though that general political propaganda does incidentally assist a particular candidate among others.‖134 Accordingly, McNair J concluded that a reasonable jury could not making one of the findings necessary to convict the company on the charge of unlawfully incurring expenses under the legislation.

10.26.

The Tronoh Mines case illustrates the tendency discussed by the Ministry of Justice that, however election advertising is defined, people will usually try to express themselves in a way which complies with the applicable rules. While it is possible to prevent people ―exploiting‖ specific loop-holes by progressively broadening the definition of election advertisement, it is not possible to close the loop-holes without progressively increasing the restrictions on freedom of expression.

132

Fifth Report of the Committee on Standards in Public Life: The Funding of Political Parties in the United Kingdom (1998), paragraph 10.18. 133 [1952] 1 All ER 697. 134 [1952] 1 All ER 697 at 700.

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Media-specific exemptions are arbitrary 10.27.

While media-specific carve-outs from the coverage of campaign finance laws sit awkwardly with the rationales underpinning restrictions on political speech during election periods, they have some obvious attractions. Few proponents of campaign regulation believe it would be wise to subject the news media, for example, to the same rules that apply to political speech generally. It would be highly undesirable, for example, for editors of newspapers to bear the risk that they could be liable for writing editorials which were thought too one-sided. The concern is that the potential for such liability would encroach on matters of editorial judgment. Editors and journalists should not be made to run the risk that they might be liable for either criticising some politicians too sternly or praising others too lavishly. Absent clear protections for the news media, it would be difficult to generate much support for restrictions on political speech. It is clear that a regime of speech regulation during election periods (if such there must be) would be less harmful if the news media were exempt. However, such an exemption would itself raise concerns about how the government decided who counted as the news media and what the basis is for creating different rules for some citizens than others.

10.28.

Other carve-outs from the reach of campaign regulations might be supported in order to avoid apparently absurd outcomes. For example, few supporters of campaign finance regulation would support restrictions on the publication of books and films notwithstanding that they can influence voting behaviour (and in some cases may be designed to create political influence, e.g. some documentary films).

10.29.

Nevertheless, the logic of ―leveling the playing field‖ or preventing the ―undue influence‖ of ―big money‖ would be theoretically consistent with comprehensive regulation of speech, notwithstanding the embarrassing consequences for supporters of restrictions on political speech during election periods. The following exchange during the oral argument in Citizens United v Federal Election Commission (a case which concerns the issue of whether a documentary film that criticized Hillary Clinton constituted election advertising) is interesting: 135 JUSTICE ALITO: That's pretty incredible. You think that if -- if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned? MR. STEWART (on behalf of the FEC): I'm not saying it could be banned. I'm saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its PAC. JUSTICE ALITO: Well, most publishers are corporations. And a -- a publisher that is a corporation could be prohibited from selling a book?

135

Available at http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-205.pdf. The Supreme Court has not yet issued its judgment.

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MR. STEWART: Well, of course, the statute contains its own media exemption or media -JUSTICE ALITO: I'm not asking what the statute says. The government's position is that the First Amendment allows the banning of a book if it's published by a corporation? MR. STEWART: Because the First Amendment refers both to freedom of speech and of the press, there would be a potential argument that media corporations, the institutional press, would have a greater First Amendment right. That question is obviously not presented here. The -- the other two things -JUSTICE KENNEDY: Well, suppose it were an advocacy organization that had a book. Your position is that under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60/90-day period -- the 60/30-day period? MR. STEWART: If the book contained the functional equivalent of express advocacy.

10.30.

Once one accepts the premise that the government may restrict speech during election periods in the pursuit of objectives such as a ―level playing field‖, the creation of mediaspecific exemptions is inconsistent with the pursuit of that objective. If a filmmaker produces an expensive and heavily one-sided documentary film in an election year that fiercely criticises, say, a prominent politician, it is not clear why the supporters of campaign finance regulation would support an exemption to protect that film from the application of rules restricting the amount of money that can be spent on political advocacy. The same would be true of a best-selling book. It is not clear why the supposed public interest in restricting pamphlets and infomercials does not apply to feature films and books. It would also not be clear how the regulatory regime should determine which technological formats qualify for an exemption: Is a book protected in hard cover but potentially a campaign advertisement when viewed on a Kindle?136 In a technological age where the boundaries between newspapers, television channels, radio stations, and blogs are increasingly blurry, should a blog on a newspaper website be treated differently than a dedicated blog run independently of a newspaper?137 Should a politically partisan film shown on the cinema screen be exempt but a shorter advertisement be covered?

10.31.

The creation of exemptions based on the identity of the publisher, such as a ―news media‖ exemption, would also be problematic. In a free society, people do not need to register with the government in order to report and comment on events. For that reason,

136

http://en.wikipedia.org/wiki/Amazon_Kindle For example, should David Farrar be exempt when he writes a blog entry for the National Business Review‘s website (www.nbr.co.nz) but nonetheless subject to regulatory scrutiny when he writes a blog entry on www.kiwiblog.co.nz? 137

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the boundaries of who should qualify for a ―news media‖ exemption are by no means clear. For example: Could a blog qualify for a news media exemption? If so, should a political blog that reports the news from a particular point of view qualify? If not, why treat such a blog differently than a magazine which reports the news from a particular political perspective? If ―objectivity‖ is a precondition for being exempt from restrictions on freedom of expression, how could this be determined? (After all, which major publications have not been accused at one time or another of having a political tilt by politicians of various political stripes?) Is it possible to make any determinations of the character, political complexion, and genuineness of a media outlet (if the regulatory regime requires such) without the risk of outright regulatory supervision of the editorial content of the media? 10.32.

We submit that once the government attempts to regulate the terms of public debate in the name of ―fairness‖ and ―equality,‖ it faces a dilemma between comprehensive regulation of the media or the potential arbitrariness of determining which media institutions should be exempt.

10.33.

The potential for ―sham‖ publications of this kind is likely to be disconcerting to some supporters of campaign finance regulation. The disquiet of proponents of campaign finance regulation over the possibility that people may circumvent the restrictions or publish ―sham‖ books or documents may be some form of test for the genuineness of the publication. For example, the protection for the media could be conditioned on an assessment that their publications are ―solely‖ for the purposes of entertaining or informing the public, as was the case under the Electoral Finance Act. We submit that it is unacceptable to expose reporters and editors to the risk that their publication would be subsequently determined to fall short of some standard of genuineness for two reasons. First, ex post determinations of a publication‘s genuineness would be likely to affect editorial and reporting decisions. This ―chilling effect‖ on the exercise of editorial judgment would diminish the ability of editors and journalists to report and comment on the news as they think fit. Second, it is contrary to the values of a liberal democratic society to permit government officials, backed by the coercive power of the campaign finance laws, to second-guess the genuineness of editorial and reporting decisions.

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Summary 10.34.

In summary, we submit in relation to the questions raised by the Ministry of Justice: Q4.1 Should New Zealand retain its current approach to the regulation of election advertising, or should a revised definition of ‗advertising‘ be adopted? A4.1 As discussed above, the present approach to the regulation of election advertising is inconsistent and in some respects arbitrary. If, as we submit would be preferable, the election laws did not place limits on the ability of citizens, candidates, and political parties to spend money expressing their arguments, the significance of the definition of ―advertising‖ would be greatly reduced. However, if spending limits are to be imposed, then the definition of ―advertising‖ also defines the reach of those spending limits. As such, there will be considerable pressure (much of it sensible and necessary, if one assumes that there must be spending limits) to create certain exemptions from the definition of ―advertising‖. Q4.2 How should ‗election advertisement‘ be defined? Should it be broad or narrow? Should there be exceptions and if so what should they be? A4.2 In our submission, this question is misconceived. When the Ministry of Justice asks whether the definition of ―election advertisement‖ should be ―broad or narrow‖, its real question is whether the spending limits should comprehensively apply to most forms of published political advocacy or whether the spending limits should have a narrow application to only some forms of published political advocacy. We do not have a concluded view on which exceptions should be created because we consider them likely to be arbitrary. If an exception is to be made to protect, for example, reporting by the news media from restrictions on political speech during the election period, the government should justify the criteria by which the legislation will define which institutions count as the news media and explain why rules that are said not to unduly restrict the speech of private citizens are nonetheless sufficiently onerous to require a special exception for the news media. In our view the following question posed by Professor Levinson is a pertinent one: ―To the extent that it strikes us as dubious – or indeed ‗unthinkable‘ – to limit the ability of a newspaper to campaign actively for its favorite candidates, then we should at least question why it would be any more legitimate to limit the amount of spending by an individual eager to support the same candidate.‖138 We agree also with his conclusion that, ―it is hard to cabin the pro-

138

Sanford Levinson, ―Regulating Campaign Activity: The New Road to Contradiction‖ (1985) 83 Mich. L. Rev. 939 at 947.

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regulation argument in any way that leaves the press magnate singularly free of the restrictions placed on others.‖139 Q4.3 Should rules on publication be media-neutral, so that new communication technologies that are designed fall within them? A4.3 In principle, we submit that the electoral laws ought to be media-neutral because media-specific rules are arbitrary. However, the Ministry of Justice‘s question is ultimately focused on how comprehensive the coverage of restrictions on published political advocacy ought to be. If a ―media-neutral‖ rule means a rule under which more forms of political discussion will be subject to regulation than under a non-medianeutral rule, then in our submission, the real question remains what justification exists for limiting how much can be spent publishing political arguments (whether they are published in the form of books or blogs). If media-neutrality is said to guide the development of the new campaign finance laws, it would also be appropriate for the government to explain why the principle of media-neutrality would not also require the removal of the special restrictions that apply to private political advocacy on the broadcast media (as we discuss above at section 7 of this submission). 11.

Public disclosure of names and addresses

11.1.

The Ministry of Justice notes that election law currently requires the promoter of an election advertisement to include their name and contact address in the advertisement. We submit that this requirement should be abolished and that those engaged in political debate should be free to remain anonymous, if they choose to do so. In our view this approach is supported by four considerations: First, requiring disclosure of a speaker‘s identity is a form of content regulation that limits freedom of speech; Second, there is no compelling state interest that justifies requiring speakers to reveal their name and address; Third, there are many legitimate reasons why one may wish to speak anonymously; and Fourth, there is a long and honourable tradition of anonymous political and literary speech.

11.2.

139

We take each point in turn.

Ibid at 948.

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Requiring disclosure of a speaker’s identity is a form of content regulation that limits freedom of speech 11.3.

As the Butlers note in their text The New Zealand Bill of Rights Act: A Commentary: ―The right to freedom of expression encompasses the right not to express an opinion or information.‖140 As such we submit that a government requirement to include certain material in an election advertisement is a limit on the right to freedom of speech.

11.4.

By way of illustration, we submit that it could not seriously be denied that any of the following illustrations of forced speech amount to a limit on the right to freedom of speech (leaving aside the reasonableness of such a restriction for the moment): Requiring citizens to compulsorily salute the flag or recite a loyalty oath or pledge. A requirement that bloggers include their name and address on any posts discussing political matters. A requirement that journalists identify by name the source of all information referred to in articles.141

11.5.

The requirement that the speaker include his or her name and address is in the same category. It limits the speaker‘s ability to formulate his or her message in the manner that he or she believes will be most effective.

11.6.

This point has been recognised by the Supreme Court of the United States in a number of decisions which held that the First Amendment to the Constitution included a right to speak anonymously. In Talley v California142 the Court held unconstitutional a Californian ordinance which prohibited distributing hand-bills which did not have printed on the cover the name and address of the printer and the person who caused the document to be produced. Giving the opinion of the Court, Justice Black said: 143 There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression. ‗Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.‘ Lovell v. City of Griffin, 303 U.S. at page 452, 58 S.Ct. at page 669.

140

Butler and Butler The New Zealand Bill of Rights Act: A Commentary (2005) at [13.27.1]. By of analogy, see the cases concerning the common law ―newspaper rule‖ including Broadcasting Corporation of New Zealand v Alex Harvey Industries Ltd [1980] 1 NZLR 163 (CA) and European Pacific Banking Corporation v Television New Zealand Ltd [1994] 3 NZLR 43 (CA). This rule is now contained in s 68 of the Evidence Act 2006. 142 362 US 60 (1960). The majority comprised Warren CJ, Black, Douglas, Harlan, Brennan and Stewart JJ. Frankfurter, Clark and Whittaker JJ dissented. 143 Ibid at 64. 141

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11.7.

Similarly, in McIntyre v Ohio Election Commission144 the Court held unconstitutional an Ohio statute which prohibited the distribution of anonymous campaign literature. Giving the opinion of the Court, Justice Stevens wrote:145 Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. … It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation – and their ideas from suppression – at the hand of an intolerant society.

11.8.

We submit that these authorities are compelling and establish that requiring a speaker to disclose his or her name and address is a clear limit on the right to freedom of expression. Accordingly, it is for proponents of disclosure to make the case that the limit is demonstrably justified in a free and democratic society. As an aside, we note that the Ministry of Justice‘s discussion of the issue of disclosure in the Issues Paper includes no reference to the right to freedom of speech and no analysis as to whether mandating disclosure is consistent with the Bill of Rights.

There is no compelling state interest that justifies requiring speakers to reveal their name and address 11.9.

Turning to the question of justification, we submit that there is no compelling state interest in requiring speakers to reveal their name and address.

11.10.

Three possible justifications are suggested by the Ministry of Justice in the Issues Paper at paragraph 4.24. They are: Requiring disclosure allows the public to identify the person publishing an advertisement, so that they can make their own judgments about whether the message in the advertisement is something that they want to consider when they vote (we will refer to this as the ―information justification‖). Allowing electoral agencies and advertising standards authorities responsible for enforcement to follow up if the rules are not being complied with (we will refer to this as the ―compliance justification‖). Allowing candidates and political parties to identify material they have not authorised (we will refer to this as the ―authorisation justification‖).

11.11.

We consider each justification in turn.

THE INFORMATION JUSTIFICATION 144

514 US 334 (1995). The majority comprised Stevens, O‘Connor, Kennedy, Souter, Thomas, Ginsburg and Breyer JJ. Rehnquist CJ and Scalia J dissented. 145 At 357.

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11.12.

We submit that the information justification is not a reasonable limit on the right to freedom of expression because it is not a pressing and substantial government objective. Although some individuals may consider the identity of the speaker relevant, this is not a reason to mandate that speakers provide it. If the mere fact that some people thought information was useful made provision of such information a pressing and substantial government objective, the government could regulate the content of any speech, by the media or private citizens, in the interests of satisfying the content preferences of those individuals. This would gut the freedom of speech and the press of any meaningful content.

11.13.

As Justice Stevens explained in McIntyre:146 Insofar as the interest in informing the electorate means nothing more than the provision of additional information that may either buttress or undermine the argument in a document, we think the identity of the speaker is no different from other components of the document‘s content and the author is free to include or exclude it. … The simple interest in providing voters with additional relevant information does not justify a state requirement that a writer make statements or disclosures she would otherwise omit.

11.14.

To the extent that individuals consider the identity of the speaker relevant, they can weigh its omission in assessing the material. This is a familiar part of assessing information and advertising in modern society. When one reads an editorial in a newspaper or considers an advertisement on television, an assessment of what is not said regularly forms just as important element in the message‘s consideration as an assessment of what is said.

11.15.

The ability of the public to assess anonymous material was rightly recognised by the Court in McIntyre when it quoted the following passage with approval: 147 Of course, the identity of the source is helpful in evaluating ideas. But ‗the best tests of truth is the power of the thought to get itself accepted in the competition of the market‘. Don‘t underestimate the common man. People are intelligent enough to evaluate the source of anonymous writing. They can see it is anonymous. They know it is anonymous. They can evaluate its anonymity along with its message. And then, once they have done so, it is for them to decide what is ‗responsible‘, what is valuable, and what is truth. (citations omitted)

11.16.

It is also worth recalling the related point made by the United States Supreme Court in First National Bank of Boston v Bellotti that:148 [T]he inherent worth of speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.

11.17.

Accordingly, we submit that although some individuals may regard the identity of a speaker as relevant, this does not make provision of such information a pressing and

146

At 348. At 348. 148 435 US 765 at 777 (US). 147

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substantial government objective. In the absence of such information individuals will weigh speech accordingly. THE COMPLIANCE JUSTIFICATION 11.18.

With respect to the compliance justification, we note that the Ministry of Justice does not specify which rules can only be enforced by requiring public disclosure of the name and address of the speaker. Without such information it is difficult to properly assess the cogency of this rationale or indeed to understand how such disclosure promotes compliance. Two points, however, may be noted which persuade us (in the absence of a clearly articulated case setting out the compliance justification) that this justification does not amount to a reasonable limitation on the right to freedom of expression.

11.19.

First, given our submission that there should be no limit on the amount that parties, candidates and individuals can spend in an election campaign, requiring disclosure of names and addresses is not necessary to ensure compliance with these rules. In any event, given that parties and candidates are required to make disclosure of their election spending, we fail to see how requiring advertisers to include their name and address is necessary to ensure compliance with spending limits (if that is the suggestion being made by the Ministry of Justice).

11.20.

Second, even if it is necessary for electoral agencies to know the identity of the promoter of election advertisements, it is not necessary to disclose names and addresses to the public at large. In this sense, the limitation does not impair the right as little as possible. A less restrictive regime could be put in place, for example by requiring newspapers and advertising agencies to hold promoter details to pass on to electoral agencies if needed, but otherwise ensuring the anonymity of those promoters who desire it.

THE AUTHORISATION JUSTIFICATION 11.21.

We submit that this is the weakest of all three justifications suggested by the Ministry of Justice. It is susceptible to three principal objections.

11.22.

First, the rationale as explained is not a governmental objective; it is designed to advantage political parties and candidates. The Ministry of Justice says that it enables ―constituency candidates and political parties to identify material they have not authorised‖ (at paragraph 4.24). No explanation is provided as to why this is a governmental objective or how it would be in the interests of society at large.

11.23.

Second, this rationale is based on what we submit is the false assumption that parties and candidates are assumed to have authorised all election advertisements in their favour unless the contrary can be shown. It is unclear to us why such an assumption 78

would be adopted. Even if there was a good reason to adopt the presumption that messages generally consistent with a political party or candidate‘s interests have been authorised by it, disclosure of the promoter‘s name and address does not rebut this presumption. Revealing the name of a promoter, even one associated with a political party, does not indicate whether the particular advertisement was authorised by the party or candidate in question. 11.24.

Third, this rationale appears to be based on the further assumption that political parties and candidates have some type of right to control or manage the content of all election advertisements that are favourable to them during an election. This notion is fundamentally misconceived. Like all other individuals, parties and candidates have a right to participate in the election and to freedom of speech. However, the right of noncandidates to participate and to exercise their freedom of speech is no less important.

11.25.

Accordingly, we submit that no pressing and substantial government interest has been identified which justifies requiring speakers to disclose their name and identity.

There are many legitimate reasons why one may wish to speak anonymously 11.26.

We have already submitted that it is inconsistent with the right to freedom of speech to require speakers to reveal their name and address. We further submit that there are many legitimate reasons why one may wish to speak anonymous.

11.27.

This point was cogently explained in both United States Supreme Court decisions referred to above. It suffices to refer to the relevant passages. In Talley, Justice Black explained that:149 Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. The obnoxious press licensing law of England, which was also enforced on the Colonies was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the government.

11.28.

Justice Stevens made the same point in McIntyre:150 The decision in favour of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one‘s privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.

11.29.

149 150

A littler later Justice Stevens explained:151

At 64. At 341–342.

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On occasion, quite apart from any threat of persecution, an advocate may believe her ideas will be more persuasive if her readers are unaware of her identity. Anonymity thereby provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent.

11.30.

Finally, it is worth recalling the point cogently made by John Stuart Mill in On Liberty that the effect of a government silencing a speaker, even if he alone holds a particular view, is to impose a cost on society as a whole. This point is particularly apposite when made in connection with an unpopular or persecuted speaker who feels that she has to speak anonymously or not at all: 152 If all mankind minus one were of an opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind. Were an opinion a personal possession of no value except to the owner, if to be obstructed in the enjoyment of it were simply a private injury, it would make some difference whether the injury was inflicted only on a few persons or on many. But the peculiar evil of silencing the expression of an opinion is that it is robbing the human race, posterity as well as the existing generation – those who dissent from the opinion, still more than those that hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth produced by its collision with error.

There is a long and honourable tradition of anonymous political speech 11.31.

Finally, as we have alluded to above, there is a long and honourable tradition of anonymous political advocacy. This history was extensively reviewed by the Supreme Court in McIntyre. For a detailed account, readers should refer to the judgments of Justices Stevens and Thomas. For present purposes we simply highlight some of the more well known literary and political writers who published either anonymously or using pseudonyms.

11.32.

With respect to the literary world, the following examples are identified by Justice Stevens in the judgment of the court:153 Samuel Langhorne Clemens (Mark Twain); William Sydney Porter (O Henry); Francois Marie Arouet (Voltaire); Amandine Aurore Lucie Dupin (George Sand); Mary Ann Evans (George Eliot); Charles Lamb (Elia);

151

At 342. John Stuart Mill On Liberty (Penguin Books, Penguin Classics, England, 1974) at 76. 153 In footnote 4. 152

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Charles Dickens (Boz); and Benjamin Franklin employed numerous pseudonyms. 11.33.

The prevalence of anonymous writing is not confined to the literary world. Many important political works have also been published anonymously or under a pseudonym. For example: The pre-Revolutionary War English pamphleteer ―Junius‖ whose identity remains unknown. 154 The Federalist Papers, advancing arguments in favour of ratifying the United States Constitution, were published under the fictitious name ―Publius‖. In actual fact the Papers were written by James Madison (who went on to become the fourth President of the United States), Alexander Hamilton (later the first Secretary of the Treasury) and John Jay (later the first Chief Justice of the United States).155 The Anti-Federalists also published anonymously. Notable pseudonyms include: ―Cato‖ (believed to be New York Governor and later Vice-President George Clinton); ―Centinel‖ (probably Samuel Bryan or his father); ―The Federal Farmer‖ (possibly Richard Henry Lee, one of the signers of the Declaration of Independence); and ―Brutus‖ (possibly Robert Yates a New York Supreme Court justice). 156

11.34.

For an extended discussion of earlier American examples of anonymous political speech, see Justice Thomas‘ concurring judgment in McIntyre at 361–363.

Summary 11.35.

In summary, we submit in relation to the questions raised by the Ministry of Justice: Q4.4

Should there be a requirement for persons who publish an election advertisement to include their name and contact address?

A4.4

No. In our submission such a requirement would restrict freedom of speech. None of the rationales identified in the Issues Paper justifies such a restriction. Further, there are many legitimate reasons why individuals may choose to speak anonymously. Indeed, there is a long tradition of anonymous political and literary writing.

154

McIntyre at 343. McIntyre at 342 and footnote 6. 156 McIntyre at 343. 155

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Q4.5

If so, are the existing rules adequate, or should they be changed in some way? Do you have any suggestions for change?

A4.5

Given our answer to Q4.4, we have no submission to make in relation to this question other than to repeat that we believe that the current rules are inconsistent with the right to freedom of expression and should be repealed.

12.

Reflections on the Electoral Finance Act

12.1.

The Electoral Finance Act is regarded by many as a low point in New Zealand‘s recent legislative history. The legislation was ill-considered and poorly drafted, which led to considerable uncertainty over its application. However, it would be incorrect to conclude that the problems with the Electoral Finance Act were confined to its drafting or the absence of cross-party consultation prior to its introduction. In our submission, there are two wider lessons from the experience with the Electoral Finance Act. First, the failures of the Electoral Finance Act reflected flawed premises as well as poor drafting. The Electoral Finance Act started from the premise that the ―undue influence‖ of wealthy ―third parties‖ (i.e., citizens) using their money to present arguments was a threat to the integrity of the electoral process. The next premise was that the electoral regime should be so wide as to focus on published statements that could influence voting behaviour. As a result of these two premises was the creation of an absurdly broad system of speech regulation. Second, the harms that were asserted to justify the Electoral Finance Act were never adequately explained or demonstrated by convincing evidence. It would be regrettable if the government were to introduce new legislation limiting political speech during election years without explaining the specific rationales for the restrictions and demonstrating the asserted harms with clear and convincing evidence.

12.2.

We consider these two points in more detail below.

The failures of the Electoral Finance Act reflected flawed premises as well as poor drafting 12.3.

Notwithstanding the fierce criticism that has been leveled at the drafting behind the Electoral Finance Act, the drafting problems reflected the flawed premises of the legislation as much or more so than they reflected haste. The basic problem for the drafters was that no specific publication that they sought to regulate was intrinsically harmful. No one sensibly thinks that it should be unlawful to give someone a pamphlet stating, for example: ―the government is not governing well and I urge you to vote them out at the coming election.‖ However, the logic of campaign finance regulation is that speech becomes harmful if it is published too often to too many people. That which is 82

individually harmless, or is in fact a positive expression of civic engagement, becomes dangerous in the aggregate. For example, a pamphlet, which is recognised as unobjectionable when given to one person (or perhaps 1,000 people), is thought to become a threat to the ―level playing field‖ if given to 10,000 people (or perhaps if an expensive, glossier version is given to 1,000 people). Nevertheless, the coverage of the legislation must include each publication, however innocuous on its own, because proponents of campaign finance reform are concerned that if the publication were spread widely enough then it could undermine ―equality.‖ 12.4.

Accordingly, the definitional machinery that is fundamental to the operation of the spending limits on political advocacy contained in the Electoral Finance Act became a source of embarrassment. It was embarrassing to some supporters of campaign finance reform that the law should create a situation in which anonymous informers tipped off the authorities that a person had a billboard on their property or when a person successfully complained that a politician‘s jacket constitutes an ―election advertisement‖ in order to lampoon the legislation. 157 However, while we agree that that these applications of the law are absurd, it is hard to create good rules for an illconsidered game. At some level, those who are seriously concerned that speech must be ―equal‖ in some sense would presumably be concerned that unregulated billboards were being erected on a person‘s property (otherwise, how could the law expect to guard against the risk that one candidate would erect many more billboards than another). While it is easy (and justifiable) to mock the definitional problems of the Electoral Finance Act, the problem remains that it is genuinely hard for proponents of the ―level playing field‖ to avoid absurdities but nonetheless still try to limit the myriad ―inequalities‖ of speech in a free and open society.

The harms that were asserted to justify the Electoral Finance Act were never adequately explained or demonstrated by convincing evidence 12.5.

157

The absence of a clear and specific explanation of what risk was posed by ―third party‖ spending on political speech contributed to the incoherence of the regime enacted under the Electoral Finance Act. The proponents of the law did not explain what exactly ―undue influence‖ meant in the context of political speech or what a ―level playing field‖ meant in the context of restrictions on political speech. It is possible, in our submission, that the use of these expressions may have made it easier to rationalise the serious (and, in some instances, absurd) restrictions on political speech contained in the Electoral Finance Act. For that reason, we consider it a matter of concern that the Ministry of Justice‘s Issues Paper also uses undefined expressions like ―level playing field‖.

See http://www.nzherald.co.nz/nz-election-2008/news/article.cfm?c_id=1501799&objectid=10540994.

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12.6.

Moreover, even if the government concluded that limiting the ability of paid political speech to influence the electoral process is a legitimate basis to limit the right to freedom of speech, it would be proper to first undertake a detailed study of the actual relationship between spending on political advertising and electoral outcomes (controlling for other factors). If such a study found similar results to the US studies which we refer to in section 8, the basis for limiting paid political speech under this rationale would be weak. Absent such a study to confirm the empirical basis for such a rationale, we respectfully submit that it would not be demonstrably justifiable to limit speech on the grounds of that rationale.

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Appendix One: Authors of this submission This appendix briefly summarises the backgrounds of the authors of this submission. Jesse Wilson BA/LLB(Hons) Auckland, LLM Stanford Jesse works in the litigation department at Bell Gully, Auckland Jonathan Orpin BA/LLB(Hons) Auckland Jonathan works as a barrister at Stout Street Chambers, Wellington Stephen Whittington BA Victoria University of Wellington, studying towards LLB(Hons) Stephen works as a research assistant to the Hon Sir Roger Douglas Yogesh Patel studying towards LLB/BCA(Hons) Victoria University of Wellington Yogesh works as a tutor at Victoria University of Wellington This submission is made in our personal capacities only and nothing in this submission should be taken to represent the view of any of our employers or clients.

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