Achieving more electoral integrity through post legislative scrutiny of election campaign finance legislation

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19 January 2022
Authors
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Dr. Sergiu Lipcean
Commentary

Achieving more electoral integrity through post legislative scrutiny of election campaign finance legislation

Campaign finance law is a controversial policy area in Moldova, Indonesia and Nigeria. Legislative changes related to the electoral process are usually taking place in a very tense and challenging political environment and tend to accommodate interests of dominant political parties. Therefore, there is always a risk of law making become politicised, which leaves the main legislative challenges unaddressed.

In the area of the campaign finance regulations (CFR), there are several issues commonly regarded as critical to ensure the fairness of the electoral process ranging from the regulation of campaign donations and spending to the transparency, oversight, and enforcement of financing rules. 

The way campaign funding is raised and spent has far-reaching consequences for the quality of democratic governance. Depending on how CFR are designed and implemented, they have the ability to strengthen or compromise the integrity of elections. Likewise, they could either enhance or shatter citizens’ confidence in the electoral process.

Since CFR can have an impact on fundraising and spending of parties and candidates, their design represents a heavily contested battleground during the legislation process. Accordingly, the temptation of political actors to weaponise CFR to get an edge over their opponents could result in very ambiguous and contradictory legislation, and in turn, could allow electoral competitors to benefit from regulatory loopholes and avoid compliance.

The comparative analysis of CFR in Nigeria, Moldova and Indonesia shows how conflicting political preferences towards alternative regulatory solutions have considerably undermined the achievement of CFR goals such as ensuring fair and equal conditions for political competition and participation.

The regulation of party and campaign donation is justified by the need to limit the disproportionate use of financial resources to affect electoral results and, subsequently, the course of public policy. To address this challenge, lawmakers must limit both the range of income sources and the amount of private donations, as the more resources one can donate, the higher the probability of distorting the election process.

Campaign funding transparency is often regarded as “the best disinfectant” and protection against political corruption. It is warranted by the citizens’ right to make the informed choices based on the financial allegiances of donors towards candidates

Finally, the oversight and enforcement of CFR is perhaps the most challenging task since political actors have to empower an external body to oversee their behaviour and envisage sanctions for financial violations. However, there are several requirements for campaign funding control to be effective. First, the oversight body must be independent of political control and have enough powers and resources to carry out its duties. Second, oversight should be upheld by a system of proportional and credible sanctions matching the severity of financial breaches. Crucially, both conditions should be met simultaneously.

The analysis of the CFR in the three countries shows that these requirements were not met. As a rule, the supervisory body possessed neither sufficient powers nor resources to conduct investigations beyond the formal checks of campaign financing reports. Furthermore, the regulatory loopholes and inconsistencies between many provisions on campaign donations and spending rendered oversight even more problematic. In addition, control was undermined by a poorly designed system.

In these circumstances, post legislative scrutiny (PLS) is often the most effective process in minimising the weight of political motivations and addressing broader social interests.

PLS, which is often carried out by parliamentary committees, is aimed at both monitoring the implementation of legislation, and evaluating whether laws have achieved their intended consequences. This process also enables legislators to review the secondary and delegated acts.

Considering the findings of the three case studies, it is feasible to propose PLS as the most effective instrument to respond to the CFR shortcomings experienced by countries, particularly when dealing with politically sensitive regulations. The application of PLS would steer the legislative drafting process away from purely political agendas towards more substance-oriented discussions, ensure stake-holder engagement, and an evidence based approach.