Last week, the Seanad debated the Electoral (Civil Society Freedom) (Amendment) Bill 2019, which proposed to remove several restrictions on the influence of money within our political process. Currently, the Electoral Act places limits on the value of individual donations made for political purposes. This new Bill sought to apply these limits only to political parties and election candidates, such that outside of election campaigns the work of NGOs and civil society groups in campaigning for political causes would become exempted.
Some NGOs in Ireland have been seeking comparable exemptions from these regulations for several years. For example in 2017, a similar proposal was made to then Minister Eoghan Murphy by Transparency International Ireland, Amnesty Ireland and the Irish Council for Civil Liberties. Their complaint was that restricting the size of individual political donations was “potentially violating the rights to freedom of expression and association”.
Article 11 of the European Convention on Human Rights relates to the freedom of association, which does include funding associations. However, this Article expressly permits restrictions on these rights that “are prescribed by law and are necessary in a democratic society”.
Previous cases at the European Court of Human Rights have demonstrated that restrictions on political funding can be entirely consistent with the freedom of association.
For example, if Amnesty Ireland and the Irish Council for Civil Liberties wished to campaign in support of someone they believed to be a political prisoner, they could accept unlimited donations from both foreign and domestic sources for this purpose. Irish law is only interested in regulating donations that have a political purpose, which means that the funds are intended to influence the outcome of elections or influence public policy. It is perfectly legitimate for our democracy to ensure that the Irish political process is protected from undue foreign influence, and that no individual should have an outsized influence on our political process due to their wealth. That is, our political process should be a battle of ideas and not a battle of bank accounts.
This principle is also grounded in human rights law. Article 25 of the International Covenant on Civil and Political Rights guarantees the right of every citizen to “take part in the conduct of public affairs … without any of the distinctions mentioned in Article 2”. Those Article 2 distinctions include “property” or “economic distinction”, meaning that the wealthy must not have a greater influence on public affairs than any other citizen. Any true democracy must protect the less affluent from plutocracy.
Many other nations already have very similar restrictions on the influence of money within their politics. We can also look internationally to observe the problems that arise when such regulations are eroded. For example in the USA, the Bipartisan Campaign Reform Act of 2002 was sponsored by Senators Russ Feingold (Democrat) and John McCain (Republican). The McCain-Feingold Act defined aggregate limits on the political contributions that any individual could make. The reasons why the USA is now such an outlier with respect to the influence of Big Money in politics, include some high-profile cases in which the US Supreme Court has overturned much of this political finance regulation.
The Citizens United decision judged some of the McCain-Feingold Act unconstitutional, leading to the growth of Political Actions Committees (Super PACs). The McCutcheon decision found that limits on the political donations that could be made by an individual, were also unconstitutional. Citizens United and McCutcheon were both 5-4 decisions that followed the ideological perspectives that have existed on the American Supreme Court. Conservative Justices like Thomas and Scalia assented, while the more liberal Justices like Ginsburg and Sotomayor dissented. For example, with respect to the McCutcheon case, Justice Clarence Thomas wrote that:
“… limiting the amount of money a person may give to a candidate does impose a direct restraint on his political communication.”
In this respect, the letter written to Minister Murphy by some Irish NGOs seems to agree with Justice Thomas, in arguing that political funding restrictions can place undue limitations on the freedom of expression of the wealthy. In contrast, the dissenting opinion of the liberal Justices in the McCutcheon case wrote that:“Taken together with Citizens United, today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”
It is perhaps surprising that some Irish NGOs would make similar arguments to those that have resulted in the current role of Big Money in American politics. Although just as there are dissenting voices in the USA, there are alternative views in Ireland too. Commenting on the McCutcheon decision to remove the aggregate political donation limits for individuals, then President Obama said:“What it means is, ordinary Americans are shut out of the political process.”
Similarly, during the recent debate in the Seanad, Senator Rónán Mullen opposed the Bill on the basis that ordinary citizens should not be shut out of the political process in Ireland. While admitting to a “frisson of excitement” in quoting from an Atheist Ireland submission, Senator Mullen reported the experiences of that civil society group with respect to the current regulation of their political fundraising:
“It does not prevent any civil society group from raising money. We just have to raise it in small donations from the many, not large donations from the few. This is good for democracy, not bad.”
Indeed, it seems incongruous for a few Irish NGOs to argue that they are unduly prohibited in raising funds for political purposes, when the campaign to repeal the 8th Amendment raised more than €1.6M through small donations from Irish citizens, which is entirely consistent with the current regulations. Notwithstanding this, the efforts to exempt Irish NGOs from some political funding regulations are continuing, with both Amnesty Ireland and the Irish Council for Civil Liberties expressing support for the Bill recently debated in the Seanad. While their letter to Minister Murphy in 2017 took a position to the right of John McCain on political funding, the more recent arguments from these NGOs have just been absurd:
“Membership drives, sponsored runs, cake sales – whatever it be – community groups, charities and NGOs should be able to fundraise however they can!”
The American Super PACs would undoubtedly agree that NGOs “should be able to fundraise however they can”, but most other developed nations view reasonable regulation of political fundraising as benefiting the quality of their democracies. Exempting NGOs from some such regulations might be of financial benefit to any civil society groups that wish to accept dark money like American Super PACs, but this would be detrimental to our political process.
Moreover, there is absolutely no evidence that membership drives, sponsored runs or cake sales have been inhibited in any way by the provisions of the Electoral Act. Such community activities do not typically involve large cash donations intended to influence our political process, and as such they do not need to pay any attention whatsoever to the Electoral Act. However, if the ICCL has become aware that the cake sales of Ireland have recently been corrupted by Big Money from shady political lobbyists, then it is certainly in the public interest that they should inform the Standards in Public Office Commission.
All of these issues will continue to be debated as the government aims to establish a new Electoral Commission during 2021.