Monday, April 15, 2013

LegCo Spending Limits Create Confusion

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This is another in a series of articles about the 2013 Tasmanian Legislative Council elections.   Existing instalments include:

My Legislative Council Candidate Guide

Nelson LegCo Polling

I also have articles about the forestry peace deal, LegCo voting patterns and same-sex marriage.

Upcoming articles include my comments on the Nelson debate (see Simon de Little's video here if you missed it or want to relive it) with a roundup of other Nelson issues, which may be released in the next week or so.  These were originally in this article but I have held them back because it was too long and the Nelson-specific remarks did not mesh well with this issue, which involves all the electorates.  I will also have detailed projection attempts for at least Nelson and Pembroke which will be released sometime during election week.  To save the suspense in the case of Pembroke, I expect Vanessa Goodwin to win, and that it won't be close.  In Nelson there is a strong modelling and polling based case that Jim Wilkinson should win easily, but the nature of the contest is distinctive, and I don't consider it to yet be cut and dried.  This article explores one of the reasons why the fight for this seat could yet be competitive. 


Over the last fortnight, the lobby group Tasmanians United for Marriage Equality (TUME) has been letterboxing the Legislative Council electorates of Montgomery, Pembroke and Nelson with leaflets.  These leaflets, versions of which are currently available on the TUME website,implore voters to "vote for marriage equality".  The initial versions contained pictures and names of most of the then-known intending candidates and ticks and crosses indicating their perceived positions on the issue.  The current versions indicate the three candidates who are known to be opposed to state-based same-sex marriage (Jim Wilkinson (Ind, Nelson), Vanessa Goodwin (Lib, Pembroke) and Leonie Hiscutt (Lib, Montgomery)) simply with large red crosses and wording such as "The current representative" or "The Liberal Party candidate", as well as ticks for two supportive candidates in each electorate.

Also recently a new group called Nelson Voters for Change (facebook page), headed Dr Juliet Lavers, was announced.  Dr Lavers was a Senate candidate for the proto-Green United Tasmania Group in 1990 and is still involved in "green politics".  The group will campaign against Jim Wilkinson and in favour of his opponents Helen Richardson and Tom Baxter.  It intends "radio ads, letter-boxing and door-knocking" to attempt to remove the incumbent.

And national left-wing lobby-group GetUp! has now become involved, recruiting volunteers who will doorknock in favour of candidates other than Wilkinson, citing his vote against state-based same-sex marriage and his opposition to the forestry "peace deal".

In most elections nationwide and worldwide, there would be nothing too surprising about all this.  Not just candidates and parties want to influence election results.  But this is Tasmania and the Legislative Council has some very restrictive campaigning laws.  The immediate claim from two Liberal staffers on Twitter was that the TUME leaflets breached section 159 of the Tasmanian Electoral Act.

Section 159 concerns campaigning expenditure, and it states:

"  (1) Subject to subsection (2), a person, other than a candidate or intending candidate or the election agent of a candidate or intending candidate, must not incur any expenditure with a view to promoting or procuring the election of the candidate or intending candidate as a Member of the Council. 

      (2) Subsection (1) does not preclude the payment or giving of any money, security or equivalent of money directly to a candidate or intending candidate or his or her election agent with a view to promoting or procuring the election of the candidate or intending candidate as a Member of the Council. 

      (3) A candidate or intending candidate at a Council election must not authorise a person other than his or her election agent to incur on his or her behalf expenditure with a view to promoting or procuring the candidate's or intending candidate's election."

This is interpreted by the Electoral Office as follows:

"This precludes payment for advertisements which promote a candidate by anyone other than
the candidate or his/her authorised election agent."

A large part of the significance of this is that Section 160 limits spending (except on certain exempt items) :

"(2) The expenditure limit is $10 000 in the year 2005 and increases by an additional $500 each subsequent year. "

Political parties are also banned from expenditure on Legislative Council elections.

So at present, a candidate or their agent can spend $14,000 within or for material used in the "expenditure period", which in the case of regular Legislative Council elections begins on January 1st.  The "or intending candidate" wording is a very recent inclusion that closes the loophole that prior to the close of nominations there are no official candidates and therefore someone might have claimed they were not a candidate yet.

Obviously, without something like Section 159, a candidate could get around the expenditure limit easily by simply having someone else pay for their entire campaign, without any cost limit.  So Section 159 allows for donors to bankroll a campaign, but requires all the expenditure to be channeled to the candidate or their agent, who then spends it within the prescribed limit.

That sounds great in theory but there are a few problems.

Primarily, s. 159 only seems to envisage a case in which money is spent on a "Vote 1 Bloggs" campaign by someone who is not Bloggs or Bloggs' intending agent.  It isn't immediately obvious whether or not it refers to:

* a campaign designed to promote the defeat of a particular candidate, by a force indifferent as to who is elected so long as that candidate is not.

* a campaign designed to encourage the voters to vote for one of a series of candidates, by a force indifferent as to which of these candidates is elected.

What we are now seeing is campaigns of either/both of these types.  So is incurring expenditure in a way that effectively promotes some subset of candidates over some other but does not promote a specific candidate allowed?

My suspicion (unless I hear otherwise - and if I do I will post on it) is that if these tactics were clearly disallowed in the view of the Tasmanian Electoral Office then we might know about this by now, since in past elections the TEO has often issued warnings about authorisation and other matters to do with getting it right.  At this stage, the claim of a breach was just an ambit and ephemeral one - but it's not surprising it was made given the wording of s. 159, if taken on face value.   (Claims of a breach of section 196, concerning naming opponents without permission, were also made at the same time, but those claims were clearly wrong.)

Jim Wilkinson himself has not been asserting any breach and instead is choosing (increasingly grumpily and suggesting he is getting "rattled"), to complain about the lobby groups in question being allegedly party fronts and their tactics being attempts to rort around the LegCo spending limits.

For example, this was Wilkinson's response re GetUp!:

"It is obviously backed by the Greens with the obvious intention of supporting their candidate by spending as much money as they want to denigrate another candidate. 

The Electoral Act endeavours to create fairness, by allowing $14,000 in campaign expenditure by each candidate, and this is a backdoor way of creating unfairness. You can only imagine if the boot was on the other foot."

 It's not clear yet that GetUp! will be spending anything significant on their doorknocking campaign.
But I don't think Jim should get too precious about "creating unfairness" since I actually remember something in that line, albeit on a much smaller scale! In his successful re-election campaign in 2001 - and I should disclaim that my mother was his primary opponent - Mr Wilkinson potentially gained an unfair advantage (albeit one immaterial to the overall result) by having campaign brochures printed on paper bearing the TEO's watermark.  He claimed this was an error by his printers.

Assuming the campaigns of TUME, NV4C and GetUp! are all legal, but are legal because they do not expend on behalf of a single candidate, then I think there's a big problem right there.  It would place activist groups in a bizarrely artificial situation in which they can spend money to urge the electorate to support candidates sharing their views only if there are multiple candidates who actually do so, or whom those groups claim do so. 

If it is not legal to campaign in this fashion, then there would be other ways around it.  For instance, lobby groups could run token candidates who would run minimal campaigns and issue material attacking the incumbent and preferencing others (with their consent).  For each token candidate you run, that's another $14K you can spend trying to "elect" them while in reality helping someone else.  An "intending candidate" might even spend all their $14K attacking an incumbent just prior to the issue of the writs, supposedly to advance their own chances, and then accidentally-on-purpose "forget" to nominate.

Either way, it seems there will always be ways for determined external campaigns to get around the spending cap.

At an early stage I saw a Twitter photo (no longer online) of a flier (circulation unknown to me) which gave Vanessa Goodwin a cross on same-sex marriage, and a tick for Wendy Heatley, with a statement that "Wendy Heatley & other candidates" (or words to that effect) supported same-sex marriage, and no other candidates mentioned.  This looked a lot like an effective promotion of Heatley, but perhaps at that stage Allison Ritchie's position on the issue was unknown.(Update 25/4: the ABC's position survey reports Ritchie as having refused to give a yes/no answer on the question.)

Things have also been odd in Montgomery, where Ed Vincent has clearly consented to being endorsed by TUME as a pro-SSM candidate, but in this article in the Examiner, it is claimed he said he would oppose the reintroduction of state-based same sex marriage laws later this year. If this was a misrepresentation, then there was no correction from the candidate in the comments section for the article.  Other articles, including the ABC's position survey, have since reported him as supportive.

TUME has been accused of acting as the Tasmanian equivalent of a "Super-PAC" for left-wing candidates, but really, what it is doing here is not so  new, and might be seen as a dramatic upscaling of the long-established practice of the Tasmanian Gay and Lesbian Rights Group (TGLRG) of surveying candidate views on same-sex issues and publishing them in booklets.  I don't know if the TGLRG still does them, but in the 1990s the surveys, which included the verbatim comments of candidates, were a fantastic public resource.  You can bet the booklets the TGLRG compiled would have cost them a few bucks here and there, and that the purpose behind them was ultimately to assist candidates supportive of gay rights to be elected, but there was never any clamour to my knowledge for such efforts to be declared illegal or to be included under anyone's campaigning budget.  The real differences this case are (i) that this is a much higher-profile "voter information" campaign (ii) that now thanks to Twitter, today's thought bubble about a possible breach of the law is tomorrow's news.

Secondly, it's possible that s. 159 over-encourages political recycling.  Recycling is normally a good thing, but in politics it has its problems.  Candidates can easily rebadge signs from old elections, and even run the same campaign in electorate after electorate, but new candidates are disadvantaged by having to start their sign-buying from scratch as part of their limit.  This sort of thing is an issue anyway, but strict spending restrictions make it slightly more acute.  It even further encourages candidates to reuse their signs from long-ago elections, something which I think should not be encouraged at all, because the use of out-of-date election signs often creates a false impression that candidates are younger than they are.

The Existing System Defeats The Purpose

The supposed purpose of laws like S. 159 (as defended in Jim Wilkinson's comments) is to create a sort of level playing field by permitting candidates with relatively modest funds to compete on a level footing with candidates with potentially unlimited campaign resources.

However, the actual effect of Legislative Council funding restrictions, combined with the LegCo's small electorate sizes and above all the rotating schedule of widely-spaced elections, is that there is nothing like a level playing field anyway.  Elections usually suffer from a chronic lack of public awareness and the field is tilted, not in favour of big money, but rather in favour of big profile.  Frequently, big profile comes from being an incumbent, a local celebrity or a prominent local government figure.

Build Your Own Pressure Group

A long-standing problem in Tasmanian politics (and doubtless politics in many other places too!) has been the abundance of very small pressure groups, that often obtain media coverage simply because they claim to be a group of some kind.  Richard Gibbs of the Community and Family Rights Council and Homophobic Activists Liberation Organisation used to get massive press coverage without ever making public any evidence that the membership of either "group" exceeded one.    (Nothing wrong with standing on your own for something - unless that something is homophobia - but you don't need a silly acronym to do it.)  The modern political social media environment is awash with similar "groups" and "parties". 

I am pleased to report there is definitely more than one Nelson Voter for Change, although there may not be all that many of them (Facebook "likes", of which they have at least 63, are not a valid membership system). But it's all rather typical that groups like NV4C claim to be interested in "democracy and transparency" but display precious little of it (so far) with regard to their own nature and operations.  So here are some stickybeak questions about Nelson Voters for Change:

* What is the formal process, if there is one, for becoming a member of NV4C? 
* Exactly how many members do they have? (Dr Lavers evaded this question when asked it on 7ZR, claiming only "a considerable number".)    
* How many of them have past or present political involvements, with what parties?  
* Do they all live in the electorate?  
* What are the other four questions from their ReachTEL survey, what are the results, and why are they being alluded to in interviews without being available transparently  for public scrutiny online?  
* Are they spending only the money of members on campaigning, or are they accepting donations from outside sources, directly or indirectly?  

A draft of this article added "Is there gold hidden in the village?" and "Where is Lord Beric Dondarrion?" but I am not sure how many people would have got those references.

I'm not claiming to be Dr Transparency myself by any means. The point here is consistency - if you are going to call for something you call "transparency" from MLCs you should be transparent about your own group and its data.

Possibly the issues created by the involvement of lobby groups like TUME, NVFC, GetUp! and even the "Transform Tasmania Alliance" (with Kittens) will lead to further review of the current restrictions.  I'd like to see the limits raised and perhaps even scrapped altogether, since there is no point in rules that there are too many ways around, and it's hard to see how what emerged would really be a less level playing field than what we already have.  If someone wants to spend $100,000 trying to get themselves elected to the Legislative Council then that would be certain to increase public awareness of LegCo elections and might even be a good thing!

Update (24 April):  Electoral Commissioner Julian Type, on radio with Louise Saunders (7ZR) this evening stated that the TEO's interpretation is that the TUME style of campaigning (not specifically named as such) is OK, and that the law does allow for external campaigns promoting more than one candidate, but not promoting a single specific candidate. 

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