We are delighted to welcome this guest post on electoral funding by Jennifer Kavanagh. Jennifer is a Lecturer in Law at Waterford Institute of Technology and a PhD candidate at Trinity College Dublin.
A recent investigation by the Irish Times has shown that a proportion of the money funding pro-life advocacy groups and campaigns is sourced from overseas. Irish electoral law precludes political parties from using foreign donations to fund their campaigns. However, both advocacy groups and political parties seek to influence the discussion of government policy, yet, are treated differently when it comes to the regulation of political funding. Is it equitable that pressure groups which have a considerable effect on the discussion of government policy are subjected to no regulation as to their financial provenance?
Article 40.6.1 of the Constitution does not allow for the Government to pass legislation regulating speech if the sole purpose of that legislation is to restrict the criticism of Government policy. It must be pointed out that this is a negative right, in that the Government does not need to facilitate such debate but it must not get in the way of that debate. Furthermore, legislation or acts of the Government which tends to undermine a balanced debate on government policy can be held to be unconstitutional as in McKenna and McCrystal.
Donations to Irish political parties are highly regulated by the provisions of the Electoral Act and Standards in Public Office Commission (SIPO). Donation Statements must be made by every registered political party and can be openly accessed by any member of the public on the website of the SIPO. The regulations on donations have been further strengthened by the provisions of the Electoral Amendment (Political Funding) Act 2012. Under this act, lower thresholds for recordable donations have been implemented. For instance donations over €100 cannot be accepted unless the name and address of the donor is made known. More importantly, new regulations issued by SIPO in January 2013 expressly preclude the acceptance of donations from any individual who resides outside of the Island of Ireland. This is also extended to companies without an office on the Island of Ireland.
Advocacy groups have just as strong a voice as political parties in the criticism of government policy, yet there is no regulation on the donations given to such groups. Unlike their political counterparts, they do not have to account for the source of money and are not subject to the same prohibitions on accepting money from offshore. This is an important point, they are not on a level playing pitch when it comes to funding print and advertisement campaigns which lobby for a change in Government policy or seek to criticise such policies.
Political parties are at a clear disadvantage to such groups. If a broad interpretation of freedom of expression is taken following the jurisprudence of the US first amendment, the regulation of political fundraising in Ireland could be in jeopardy. The cases of Buckley v. Valeo and Citizens United v. Federal Elections Commission successfully argued that restrictions on political fundraising were a restriction on expression. There is an impact on freedom of expression as the imbalance in funding sources results in advocacy groups having a financial advantage when seeking to mount a publicity campaign for their cause over political parties.
As we know, advertising costs money and the ability to fund such advertising depends on the amount of fundraising that may be carried out. This affects print and internet advertisements as s.41(3) prohibits Broadcasters from airing advertisements which are directed towards a political end.
Therefore, there is a convincing argument to be made that the lack of regulation for advocacy groups as outlined above is constitutionally questionable as it restricts political parties from being able to criticise government policy to the same extent as advocacy groups. This is an area which will hopefully be addressed in the outline scheme of the Lobbying Bill which is due to be released early this year. However no mention of such a proposal was included in the policy paper on Lobbying Reform. The current situation is, firstly, open to abuse and secondly, open to a possible constitutional issue which may have profound repercussions on the regulation of political fundraising in time to come.