There has been discussion this week about the possibility politicians may face TV and radio advertising attacks this year from public interest groups seeking to convince people not to vote for them.
This is because a new interpretation of election rules now gives the public the right to advertise on TV and radio about politicians. Previously they were banned from doing so, and broadcast ads were only allowed to be purchased by politicians, and even then only during the three months leading up to an election.
Of course election attacks on politicians have always been allowed in the non-broadcast mediums of newspapers, internet, and billboards - subject to various regulations/limitations - but some worry that these criticisms of politicians will now also occur on the airwaves.
A Gonzo experiment by a law professor
Leading electoral law expert Prof Andrew Geddis is the reason we are having the debate this week, after he carried out an impressive experiment to test recent "changes" to the electoral law. He has blogged about this on the Spinoff website - see: How I tested electoral law by dropping a 30-second tirade amid hard-hitting ganja tunes (and why it really matters).
In this blog post, you can hear the 30-second election advertisement that Geddis paid to have broadcast on Friday, which calls on people not to vote for the Aotearoa Legalise Cannabis Party. In the past, such an advertisement was deemed illegal, and punishable by a fine of up to $100,000. But as Geddis explains, he first got permission from the Electoral Commission. And that permission represents a huge change in the way that political speech is regulated by the state.
According to Geddis, the new interpretation of the Broadcasting Act "represents a pretty fundamental change to how election campaigning can occur in New Zealand. It allows everyone and anyone who isn't a party or candidate to run the sort of attack ads that [disparage politicians]" - and he links to a couple of examples from the US and Australia. His argument is that these type of attack ads diminish democracy rather than enhance it.
As examples, Geddis list possibilities: "Don Brash's Hobson's Pledge outfit spending $300,000 on a month-long television advertising campaign warning New Zealanders of the threat that the Maori-Mana Party arrangement represents for New Zealand's future. Or Federated Farmers spending some hundreds of thousands of dollars on TV and radio spots urging voters to reject the Greens and the burden they would impose on the agriculture sector." This phenomena "may make the 2017 election campaign a very different one from 2014."
Geddis has backed up his original story with subsequent articles about the looming dangers of people running "mean-spirited, hatchet-job attack ads on your political enemies" in articles like Open slather for election-year 'attack ads' by individuals and well-funded pressure groups.
In this article, Geddis warns that as a consequence of the Court of Appeal's decision, "When you turn on your TV or radio, alongside the political parties telling you why they are the right choice for your vote you can expect to see and hear a range of ads telling you why you should not vote for them. That may then make this election feel a lot more like those in Australia and the USA than we are used to."
And he calls for reform: "Once the 2017 election is over and we have a new parliament in place, it is going to have to revisit the Broadcasting Act and decide just what to do about this situation."
Geddis' main concern seems to be that these rules have changed purely as the result of a Court of Appeal decision, and that needs further debate. Also he's pointing to the whole broadcasting allocation model, which now seems even more outmoded than ever, given that political parties are barred from buying advertising beyond that allocated to them by the Electoral Commission.
In the NBR, Geddis also stresses that the ads will have an impact: "the thing is, they work. People spend money on these ads because they do have an effect so it's a fairly safe prediction someone will want to do this. It's going to change the way we do elections" - see Fiona Rotherham's US-style negative election campaigning likely despite Kiwi distaste, lawyer says (paywalled).
The same article also notes that there has already been an interested reaction from someone with previous influence on elections. On seeing the Geddis story, Kim Dotcom (@KimDotcom) tweeted "This is interesting. Now anyone can run political ads in New Zealand."
For further information, you can also listen to Geddis' five-minute interview with Guyon Espiner on Morning Report: Planet Key opens door to US-style negative election ads.
Support for reform
Geddis' stance is strongly backed by an editorial in yesterday's Dominion Post, which asks: "Could money be about to wash over New Zealand politics in a way unprecedented in the modern era?" - see: Protect speech, not massive election spending by vested interests.
The editorial's focus is more on the question of the undue influence of wealth in politics, with the idea that democracy might be diminished by inequality of resources put into advertising: "That opens the way for significant spending by outsider groups, and perhaps an onslaught of the "attack ads" that blanket the airwaves in the US. If this interpretation is right, such third-party pressure groups will face a $315,000 spending cap for the three months before the election, and no limits on spending at all until then. (By way of comparison, the NZ First Party had $200,000 in state funds to spend on TV and radio ads before the 2014 election)... The end result is thus deeply troubling".
It raises the age-old tension in regulating elections - that of fairness versus liberty. Regulation normally impairs freedom of speech to some degree, while a lack of rules can be seen to reduce fairness. For the Dominion Post, "The law should absolutely protect the rights of individuals to express themselves. But it should also tightly restrict their ability - and the ability of groups - to spend money on amplifying their message. There is a tension here, but it's not insurmountable. Both protections are crucial."
In defence of the changing regulations
Blogger David Farrar has mounted a defence at the change and suggests that Geddis' criticisms amount to Much ado about nothing. Part of Farrar's defence is that the change in the interpretation of the law is very minimal, as the amount that interest groups can spend has not been changed, but only that they can now spend their advertising on TV and radio stations instead of just newspapers, the internet etc. Hence no great reform of the law is required.
Farrar argues that times have changed, and broadcast media is no longer especially powerful compared to other media: "Once upon a time there may have been a case for broadcast ads being so powerful, they need to be restricted. But this is long past. All forms of advertising should be treated the same. If I was running a third party, and someone gave me $300,000 to spend on political advertising, I wouldn't spend a cent of it on television advertising. I'd spend it all on video adverts on Facebook where you can target voters with huge precision."
He also questions whether large amounts of money really do have a dangerous impact, and says a bigger principle is at stake: "As a matter of free speech, I don't think there should be any limit on third party spending. The link between amount spent and impact is pretty low (ask Colin Craig and Kim Dotcom). The vast majority of third party spending comes from unions trying to help Labour and attack National. If they want to run ads on radio or television, they should be able to."
In addition, Farrar questions why politicians should have a monopoly on broadcast electioneering. This argument is also reported on by Benedict Collins' in his RNZ story,
: "John Ansell, who created National's controversial Iwi Kiwi election billboards in 2005, said it was about time political parties lost the monopoly on broadcast advertising. Everyone should be able to take the mickey out of parties, he said. 'The more the merrier. Why not? it's freedom of speech'."
Two National Party ministers are also quoted, defending the new regime: "Associate Justice Minister Mark Mitchell said voters were smart and would not be unduly influenced by attack ads run by private interest groups", and Steven Joyce is reportedly relaxed about the change, saying "We're used to dealing with full page ads from [the New Zealand Educational institute] or [the Post Primary Teachers' Association] or whatever."
The same article cites Green Party co-leader James Shaw drawing parallels between the current need for reform, and the Clark Government's Electoral Finance Act: "of course the Electoral Finance Act was originally brought into play because we were the subject of attacks, in the form of leaflet attacks by the Exclusive Brethren... I guess the most concerning part of it is that money can have a very big role to play in the election."
For more on all this, you can listen to RNZ's three-minute item, Attack advertisements could be new feature this election, and the four-minute Government sanguine about electoral advert ruling.
Finally, this change in electoral law was sparked by the Electoral Commission's infamous ban on the satirical Planet Key video. This resulted in lengthy legal battles that have acted to "clarify" the rules. Planet Key video maker, Jeremy Jones, explains how all this happened, and why he thinks Things don't Ad up on Planet Key.