The rules of the election campaign: problems and potential solutions

alan.jfif (1)The election campaign that concluded last week was often a depressing sight for democrats, with rampant misinformation and occasional threats against institutions that try to foster better debate. In this post Alan Renwick identifies key problems and assesses four possible solutions. Given the prevailing political environment, he concludes, a concerted effort from parliamentarians, broadcasters, and others will be needed to carry the case for positive reforms forward. 

Electoral law in the UK urgently requires reform. This has been the unanimous conclusion of a slew of recent reports from respected organisations – including the Electoral Commission, Association of Electoral Administrators, and the Digital, Culture, Media and Sport and Public Administration and Constitutional Affairs committees in the House of Commons. Michela Palese and I also argued the case in a report earlier this year. Many aspects need attention. Some are drily technical: our complex and often opaque election rules badly need basic consolidation, simplification, and clarification. Others get to the heart of the kind of democracy we want to live in. Campaigning has been transformed by the digital communications revolution, but the rules have utterly failed to catch up.

This post focuses on campaign conduct. It begins by briefly reviewing problems during the 2019 election before focusing on four possible solutions. Finally, it considers the prospects for serious reform.

The conduct of the campaign

The shift to online campaigning continued apace. According to Facebook’s data, the three main parties’ central organisations alone spent £3.5 million on advertising on the site in the 12 months preceding the election, the great bulk of it coming during the campaign period. Each party posted thousands of separate ads, often targeted at very small numbers of voters. Local parties and other campaign groups also weighed in strongly. It will take considerable time for detailed analysis of all this material to be completed.

Misinformation was rampant throughout the campaign, from all sides. Boris Johnson’s core promise to ‘get Brexit done’ by 31 January 2020 was well known to be a gross simplification, while Conservative promises on new hospitals and extra nurses were found wanting. So were Labour’s claims that 95% of people would pay no extra tax under its plans and that the average family would save over £6,000. The Liberal Democrats were criticised most for misleading bar charts and sometimes manifestly false claims about their own electoral prospects. 

There were other problems beyond simple misinformation. Notably, the Conservatives apparently sought to undermine sources of independent, impartial analysis: their press office masqueraded on Twitter as a fact-checking organisation during the first leaders’ debate; and they threatened both the BBC and Channel 4 with punitive measures. Boris Johnson famously ducked out of an interview with Andrew Neil. He was not the only leader to avoid potentially tricky scrutiny: neither Johnson nor Jeremy Corbyn agreed to be interviewed on Radio 4’s Today programme.

Solutions

1. Increasing transparency

The solution to campaign misinformation that has been most widely advocated is to increase transparency. First, the existing requirement that printed campaign literature should carry an ‘imprint’ stating its source should be extended to digital materials. The Electoral Commission first argued for this in 2003, and the Johnson government committed in its October Queen’s Speech to bringing forward proposals. Second, online political advertisements should be visible to all: it should not be possible to ‘microtarget’ messages at particular groups without accountability to the wider community. Third, there should be much clearer, faster information on how campaigners spend their money. All but the smallest parties currently have six months after an election to submit their spending returns. Even then, little is needed by way of detailed breakdown.

Though the law on transparency was not changed before the election, the major internet companies did introduce rules addressing each of these points to a degree. For example, Facebook – which is the dominant player – requires political advertisements to carry an imprint (or ‘disclaimer’). It also makes them public through an ad library, which, alongside each advertisement, includes information on who has seen it and how much has been spent on it.

Facebook itself has said that such transparency rules should be decided through democratic processes, not by tech companies. Those rules should require greater transparency than is currently offered. Notably, in the context of an election contested under First Past the Post, where the overall result is the aggregation of 650 separate contests across the country, information is needed on constituency targeting: otherwise, the true nature of the campaign on the ground remains opaque.

The 2019 election illustrated the value of this transparency: many news stories examined the content of online political advertising in a way that was simply not possible in 2017. At the same time, it also showed that transparency on its own is insufficient to raise the quality of campaign discourse: the deluge of misinformation described above occurred despite it. 

Transparency will change campaign styles only if voters punish those who are exposed as peddling misinformation. In the context of an election offering the choice between the radical change of Brexit on one side and a radical economic reform agenda on the other, however, voters cannot be blamed for not giving campaign conduct much weight in their decisions of how to cast their ballots. That voters backed candidates who lied to them does not mean they are content with such behaviour. It just means that transparency is too weak a weapon to stop it.

2. Banning online political advertising

A very different approach would be simply to ban political advertising online. Twitter adopted that approach globally in November. Some have suggested a more limited measure: for example, one international think tank called during the campaign for a ban specifically on personalised political advertising online.

The UK has banned broadcast political advertising ever since commercial television was introduced in 1954. In a review of political finance in 1998, the Committee on Standards in Public Life recommended that this restriction be maintained, arguing that it prevented a financial ‘arms race’ and protected viewers and listeners from ‘a continuous barrage of party political propaganda’. Yet the digital communications revolution is rendering this limitation increasingly meaningless, with parties and campaigners pouring ever greater resources into online campaign materials. Reflecting this, the Independent Commission on Referendums, which was established by the Constitution Unit and reported last year, proposed ‘a comprehensive inquiry into the future of political advertising across print, broadcasting and online media’. It is not obvious why substantial restrictions on online political advertising should not be seriously considered.

3. Banning misinformation

A third approach would be to ban misinformation in campaign materials. Such a proposal, from the Coalition for Reform in Political Advertising, received some attention during the election campaign. This argued that ‘objective factual claims’ in political advertisements should be vetted before publication, and implied that publication of materials that failed this test would be stopped. 

The UK currently has one limited restriction on misleading information in election campaigns: section 106 of the Representation of the People Act 1983 makes it an illegal practice to make a false statement concerning the personal character or conduct of a candidate for the purpose of affecting the return of that person. This provision was applied during a general election campaign for the first time ever in 2019: Scotland’s Court of Session imposed an interim interdict (injunction) preventing Royal Mail from distributing SNP campaign material that made false claims about Liberal Democrat leader Jo Swinson. 

This provision is very narrowly drawn: it applies only to a small subset of false claims relating to candidates. But extending it to policy disputes would endanger free speech. As Michela Palese and I found in our report earlier this year, a provision of this kind does exist without much controversy in South Australia. But it is applied only in egregious cases, and it therefore constrains misleading rhetoric only at the margins. To make a more meaningful difference, courts (or another umpire) would have to make judgements on claims such as those cited above, relating to nurse numbers and the impact of tax changes. This would inevitably become highly controversial, and could unleash a counterproductive backlash.

4. Making high-quality information more readily available

Michela Palese and I argued instead for an approach focused on ensuring that accurate and balanced information is accessible and relevant to people’s concerns. Having set this out in our report and a previous post on this blog, I will not repeat the arguments in detail here. The core of the argument was that voters deserve to be taken seriously. Many are deeply dissatisfied with the information available to them. Broadcasters, the Electoral Commission, expert organisations, and others should ensure that voters can access the information they want in a form that they find meaningful and trustworthy.

The election saw valuable steps in this direction. Fact-checking – by broadcasters and by the independent charity Full Fact – was more prominent than ever. The analyses of some expert bodies – notably, the Institute for Fiscal Studies – were reported seriously and prominently in parts of the media. The BBC offered an online manifesto comparison tool – though this remained far short of a full ‘voting advice application’, as many have argued for. 

There remains scope to take such developments much further. They remain pinpricks amidst the mudslinging and hype. As noted above, key issues, such as the reality of negotiating a future relationship with the EU, received little attention. Senior journalists were caught out by campaigners who fed them misinformation, as they had been before the campaign began

Prospects

There are reasons for both pessimism and optimism regarding the prospects for change. On the pessimistic side, it was remarkable that few of the parties’ election manifestos addressed the need for reform of campaign conduct rules. Furthermore, whereas the October Queen’s Speech committed to implementing digital imprints, this week’s did not, saying only that the government ‘aims to launch a consultation on electoral integrity that will consider measures to strengthen the provisions that protect our democracy from foreign interference and to refresh our laws for the digital age’.

On the other hand, an appetite for change appears to be widespread, and much can be done even if the UK government is slow to act. Parliamentary committees, as noted at the start of this post, have done important work in pushing discussion forward, and there is every reason to expect MPs to want to maintain this. They might particuarly encourage government to take a bold approach to refreshing the laws on campaigning. The devolved administrations now have authority over aspects of electoral law in their areas and are keen to demonstrate a more open approach to democracy. Broadcasters have developed their practice and remain keen to do more. Civic technology organisations such as Democracy Club and Who Gets My Vote continue to push forward. 

The 2019 election campaign was often depressing, but it also offered evidence on how the challenges of democracy in the digital age can be addressed. Concerted effort from all involved could, if it is thought through well, lead to real improvements.

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About the author

Dr Alan Renwick is Deputy Director of the Constitution Unit and the co-author of Doing Democracy Better: How Can Information and Discourse in Election and Referendum Campaigns in the UK Be Improved?