This month, the head of the Electoral Commission confirmed what had already become apparent in the run-up to polling day on November 8. The Electoral Finance Act had had, said Dr Helena Catt, a "chilling effect on the extent and type of participation in political and campaign activity". Her comment acknowledged the dearth of activity normally present during election campaigns as interest groups vigorously put their points of view. For a textbook example of the impact of the electoral advertising restrictions, it is unnecessary to look further than the Employer and Manufacturers Association's opposition to amendments to KiwiSaver.
In late July, the association placed advertising in newspapers objecting to changes that would prevent employers taking KiwiSaver contributions into account in wage negotiations. The advertisements said, "Tell our politicians it is the wrong call", and listed MPs' phone numbers. They also urged people to stop Labour Minister Trevor Mallard passing the changes into law.
The association has not listed as a third party, which is required under the act of any group or person who intends to spend more than $12,000 on election advertising for or against a political party. In its eyes, however, the advertising was not related to the election. Nor did it believe that it breached the act by encouraging or persuading people to vote or not vote in a particular way. Rather, it focused on an imminent parliamentary debate, and encouraged readers to make their views known to MPs if they agreed the planned changes were wrong. It was, in other words, the type of advocacy against a specific law change that might be expected from any lobby group.
The Electoral Commission, which oversees the Electoral Finance Act, did not see it that way. It said the impact of the item was the main consideration in determining whether it was an election advertisement and, therefore, an offence. "The headlines, associated with the graphics which include 'stop' signs, give an overall perception of wanting to stop Trevor Mallard and/or his party," it concluded. The item was, thus, deemed an election advertisement within the meaning of the act, and the commission referred it to the police for investigation.
Understandably, the association has reacted strongly, saying it will likely legally challenge the commission's verdict. "The decision ... says, in effect, it is illegal to promote any views that oppose those of the government or an MP such as Mr Mallard in an election year," it said. The real culprit here, however, is not the commission but the wording of the act, which probably left it with no choice. Not for no reason is Dr Catt now lambasting a "difficult law", significant parts of which are "obscure" and hard to interpret. Not for no reason is she now using exactly the same language that critics, such as the Herald, were using as the legislation was rushed through Parliament without reflection or consensus.
The Employers and Manufacturers Association's case stands as a litmus test for the failings of the electoral finance law. The Government quelled the opposition to the KiwiSaver changes by quickly amending the relevant statute. But the issues raised about even the most mundane of advocacy by the Electoral Commission's decision remain. Would even advertising demanding a halt to the Waterview tunnel, a project planned in the Prime Minister's electorate, fall foul of the law?
It is of little comfort that the Government has finally acknowledged the ludicrousness of the act and appointed an "expert panel" to review it. Or that the National Party has pledged to replace it. This year's election campaign is already much the worse for its shambolic, menacing presence.