Coalition For Open Government, New Zealand

Among the many innovations in the Electoral Finance Bill is a move to update its reach to a more modern age. The current law was written in 1993, but much of it was ported from the 1956 Act that preceded that. Times and technology have changed, but our electoral laws haven’t – and the Government wants to use this opportunity to update. Advertising isn’t what it used to be – the methods are different, and more varied – and a lot of what a modern campaign involves just isn’t covered in the law.

So what’s the change? In short, whilst the Electoral Act regulates “advertising”, the Electoral Finance Bill would regulate “any form of words of graphics”.

I’ve already discussed some of the consequences of this change. But the intent behind it is clear. In a time of electronic media, of websites and YouTube and email, a narrow focus on advertising was felt inadequate. What use are spending caps if most expenditure on new media isn’t included? If parties can spend perhaps millions on getting their message out to voters without that spending qualifying as election expenditure then the aim of the rules – to give parties some sort of level playing field in communicating to voters – is rendered nugatory.

Imagine if at the last election, National hadn’t broadcast its clever taxathon advertisements, but instead put them anonymously on YouTube, sent around a few emails to have forwarded, and had David Farrar link to it; it might have gotten almost as many views as it did on television, it probably would have aired on television anyway (Campbell Live or Nightline, Breakfast or Close Up), and even though they’d spent thousands on the production of the animation, it wouldn’t have counted towards their limit.

Advertising bought on a website (like the Herald or TradeMe) is currently included, but highly professional, quite expensive websites themselves are not. This isn’t necessarily unfair – the same rules applied to all parties, and no-one had to include their non-advertising expenditure in the cap – but it certainly carries a risk of inflaming the arms race between political parties.

So we have a change. Non-traditional advertising – the clever YouTube-only video, the website and email campaigns – now comes within parties’ (and others’) spending caps. If it’s getting your message out to the public, the costs of doing that, and making it, have to be accounted for.

It makes a lot of sense. A taxathon video on the web is no less advertising than one on the television, and whether it’s the cost of broadcast time, or bandwidth, it’s sensibly included in any calculation of the cost of a campaign. But the extension of regulation from “advertising” to “any form of words or graphics” could have myriad other effects.

Under the current rules, it isn’t just the advertising itself that counts toward your limit, it’s also any expense incurred in respect of that advertising. Your ad agency, your graphic designers, your film crews and studio time, your copy writers, the cost of printing, delivery (if you don’t get volunteers to do it), and renting bill board space – these all currently come within the cap. Entirely reasonably.

But think through what this means now that YouTube videos and party websites – and all other forms of words or graphics – are regulated. The definition of what’s included in the cost has changed – it’s no longer expenses in respect of advertising, but “the cost of preparation, design, composition, printing, distribution, postage, and publication” (and you’ll remember from this post the rather broad meaning of publication). The law currently includes the cost of people/staff involved in advertising as an election expense – but in the future it’s intended that it will include the cost of preparing or composing the “any form of words or graphics” to be regulated.

It won’t be just the cost of people involved in advertising (your designers and copy writers) that’s an election expense, but the cost of people involved in writing the content on the website (an election advertisement under the proposed law), and perhaps the people who run the website. That’s your IT guy, and if most of the copy on your party website is MPs’ press releases (also election advertisements) then a substantial portion of all of a party’s press secretaries’ salaries too – and speech writers (if your speeches go on YouTube, are posted on-line, or emailed out), and perhaps others whom I’ve not considered.

So – not only would the Electoral Finance Bill extend the period in which the election cap ($2.4 million for Labour, $2.26 million for National etc.) applies from 3 months to perhaps 11, it effectively cuts it by perhaps half a million or more by including in the cost the time of numerous staff whose time was never spent in respect of advertising, but is related to “words or graphics”.

Don’t get me wrong – there are definitely reasons why one might want to include some staff time in the election spending cap – but it shouldn’t be done surreptitiously, or as an unintended consequence of changing definitions.

Graeme Edgeler
Coalition for Open Government