Regulating the permanent campaign

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Barry K Winetrobe suggests that some modern electioneering practices, especially when well before the formal election campaign begins, could confuse and mislead voters and should be regulated.

A few weeks ago, my local paper ran a classified ad for a meeting with ‘your local parliamentary candidate’. The ad had the promoter/printer imprint on it. I was a little surprised by the absence of any political party name, and the subliminal implication that this person was somehow the only candidate for the local constituency in next May’s UK general election. Intrigued by this self-description, I went to his website, helpfully listed in the advert, and there on its content-rich home page was the phrase: ‘PPC for [the constituency]’. Looking further into the website, I finally found a very tangential reference to his political party. He also appears in the party’s website list of PPCs (prospective parliamentary candidates).

Some days later, I received in the post a communication from that person about a major local issue, containing a multiple-choice survey covering not just that specific issue but also questions relating to national politics and the 2015 general election (e.g. ‘To help make the survey results representative, please let us know how you voted in the General Election in May 2010?’ and ‘Thinking ahead to the next General Election, as things stand today, what are the chances of you voting for each of the following parties…?’). Its ‘small print’ seems to contain the only references to the relevant political party, apparently more to fulfil data protection requirements than to inform the reader of which party is involved.

There is also the growth of the term ‘Prospective MP’ by PPCs, parties and by the media. Again this term can impart the not-too-subliminal message that the candidate concerned is not merely fighting as a ‘candidate’ to be elected but is, in some senses, the winner-designate.

All this seems to be part of a growing trend (drawn from the USA?) of stressing the personal aspect of candidates rather than their party affiliation – perhaps especially so in marginal seats (like the one I am in). While this may well be accepted as a fact of electoral life, in an era of public distrust of political parties and politicians, it does seem to add up to a situation which could, whether by accident or design, confuse, influence or mislead the electorate.

One clear purpose of the laws and practices regulating election campaigns is, surely, to avoid such confusion (especially in party names, descriptions and emblems, or in candidates’ names), so that voters are making a genuinely informed choice when they cast their ballot. However, potential candidates/parties seem to have a freer hand in their campaign activity in the early run-up to the various formal election campaign period(s), before the relevant regulatory regimes kick in, in what could be described as the ‘pre-campaign’ or ‘pre-pre-candidacy’ period’.

As the Electoral Commission’s own website demonstrates, the electoral regulatory regimes are already extremely complicated and becoming more so every year. However, they relate mainly, especially in the ‘pre-campaign periods’, to issues of finance rather than the conduct and content of campaigning itself, including descriptions of a person’s ‘electoral status’ or party affiliation. When I contacted the Electoral Commission about this, their response was:

The terminology “parliamentary candidate” and “prospective parliamentary candidate” are both acceptable. “Prospective MP”, while not prohibited, is not good practice, or the most appropriate term to use.’

I followed this up with them seeking a more detailed response, and received one from the Director of Party and Election Finance, dated 6 October, setting out in great detail the regulatory regimes applicable to the various actors at different periods in the electoral cycle. It included the following:

‘There are some offences relating to the content of material, such as defamatory comments about candidates standing for election, and there are also rules on the use of “imprints” on campaign material, which are intended to make clear who has produced and distributed that material. … However, there are no other rules about the content of campaign activity, for example, about whether prospective candidates must refer to themselves with a particular title.’

We seem to be in an era of what American political scientists call ‘the permanent campaign’ (e.g. Sidney Blumenthal The permanent campaign (1982)), where candidates and local/national parties are perpetually running for office, rather than campaigning during certain fixed periods prior to an election. Just as we now have rolling registration, we also have rolling campaigning. Has the time come when the issue of permanent/rolling regulation for any particular electoral cycle also has to be addressed more directly?

Of course, the further away from an election, the more difficult the regulatory environment, especially in identifying who and what is appropriate for regulation, and on what basis. For example, as to the ‘who’, the scope is very wide, from incumbents (both of the office subject to the election or of another, perhaps overlapping office/seat) to those not yet declared as seeking nomination. The incumbency factor is a complex one, as demonstrated by the unhappy saga of the short-lived MP ‘Communications Allowance/Expenditure’ several years ago. When, for example, does the right, indeed the duty, of elected representatives to account to their constituents for their activities in office stray into covert or even overt re-election campaigning, thereby giving them a publicly-funded advantage over their potential opponents?

There is also the issue of overlapping regulatory schemes, where different, indeed contrary policies apply. For example, MPs’ expenses rules, now regulated by IPSA, are designed to ensure that public funds are not used by MPs for party political advantage. Office Costs Expenditure cannot be claimed for ‘funding any material, excluding a website, that contains a party political logo or emblem’ (MPs Scheme of Business Costs and Expenses, para 6.6.d). More generally, the Scheme quite properly defines party political or campaigning activities as ones ‘not considered as necessary for the performance of MPs’ parliamentary functions’ and so not allowable expenditure (para 3.4.a-e). On the other hand, and for different public policy reasons, during election campaigns there are statutory ‘imprint’ requirements for campaign materials which, in the words of the Electoral Commission, ‘allows members of the public to identify who is responsible for the material and who printed it.’ (Regulatory Review, June 2013, para 4.125).

On the content of election/campaign materials, ordinary laws of defamation and the like will apply as appropriate. However political advertisements whose principal function is to influence voters are exempt from the Advertising Code administered by the Advertising Standards Authority (s7 of the CAP Code), as the ASA explained in July in advance of next year’s Westminster general election. Needless to say, free speech and free elections considerations should be crucial in any regulation of content, which should be sufficiently ‘light-touch’ so as not to have a chilling effect on this vital democratic process.

Whether or not there should be a comprehensive and permanent regulatory system for particular electoral cycles – I recognise that one obvious problem would be the overlapping of different layers of elections, including by-elections and even referendums – there is a need to address this narrower issue of party/candidate designations and descriptions throughout an electoral cycle, and not just during the various currently regulated periods. To some degree, amid the baffling array of laws already in place under the Representation of the People Act 1983, the Political Parties, Elections and Referendums Act 2000, and their many statutory offspring, there are provisions which could be adapted for such regulation. For example, the definition of ‘election material’ in s85 of the 2000 Act, relating to third party expenditure, refers to:

‘material which can reasonably be regarded as intended to … promote or procure electoral success at any relevant election’ or ‘otherwise enhance the standing of any such party or parties, or of any such candidates, with the electorate in connection with future relevant elections (whether imminent or otherwise)

‘Candidate’ is defined as including ‘future candidates, whether identifiable or not.’

This could be used to design a provision (whether enshrined in statute or in, say, a Code of Practice) requiring all ‘election/campaign material’ produced at any time prior to any existing regulated periods for particular elections to display, clearly and transparently, particular relevant information. This should include (a) the national/local political party involved; (b) the status of any person involved in relation to their party or proposed electoral position (such as a prospective candidate or seeking to become a prospective candidate), and (c) any party political or electoral purpose (whether or not stated to be the primary purpose) of the material. Attached to this could be a general test for such specified content, perhaps along the lines of the ‘likely to mislead or confuse electors’ test used for candidates’ names. Regulating and enforcing this would presumably be a matter for the Electoral Commission.

This proposed reform, in its own small way, could help achieve the goal of an informed electorate.

Barry K Winetrobe has taught constitutional law and government for many years, and has written many articles and book chapters, and given evidence to parliamentary and other committees, on Scottish/UK constitutional developments.

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