This is the text of a column I published in the journal.ie on 3 January 2018.
So now we know. The Electoral Acts – the suite of laws which govern political donations – are failing to deepen transparency and accountability of those designated as ‘third parties’. Not because these ‘third parties’, or more specifically civil society organisations (CSOs) such as Amnesty International, are failing to comply, but because the legislation itself is not fit for purpose.
First, if the purpose of the Electoral Acts is to protect our democracy from undue influence from wealthy individuals, then it has not accomplished this. It is worth thinking about who is most likely to fundraise to support their political work. There are plenty of wealthy individuals and corporations who have the money and connections to influence political decision making without ever seeking external donations. They can easily undertake activities, such as meeting politicians, hosting events or commissioning research, which seek to influence decision-making. The ‘third party’ provisions don’t apply to those with their own resources. It is more likely to be CSOs who seek donations to make sure that democratic debate is inclusive of those who are excluded and marginalized. Viewed in this way, the emphasis on political donations is inequitable. The important question is political spending – a concern which has been repeatedly raised by the Standards in Public Office Commission (SIPO) in recent years.
Second, regardless of the rights or wrongs of the current legislation, it is not working on its own terms. Currently there are 27 organisations registered with SIPO as ‘third parties’ (there were 35 in 2016 and 41 in 2015). In contrast, the lobbying register – a public website, maintained by SIPO, which records who is lobbying whom and about what – is much livelier. 1,700 bodies have made returns to the lobbying register. While not all of these would necessarily qualify as ‘third parties’ it is reasonable to imagine that the majority of those who engage in lobbying do so for a political purpose and many will have received some form of donation over €100. Lobbying is defined very broadly as communicating with a designated public official about “a relevant matter”. Even if you take as cut-off point anyone who has made five or more returns to the lobbying register, you are still talking about nearly 1,200 bodies. Interestingly, of the 27 bodies currently listed as ‘third parties’ by SIPO, using the names from that register, only one appears to have submitted any lobbying return (the Repeal the Eight Coalition). Clearly, the lobbying register has managed to achieve something which the register of ‘third parties’ has not, and is making a valuable contribution to enhancing democratic transparency and accountability.
Finally, even if the register of ‘third parties’ was thriving, returns to SIPO do very little to deepen transparency. The Electoral Acts do not require ‘third parties’ to provide details of the donations they receive, nor what they spend it on. Indeed, SIPO does not even make public the few returns it does receive. Telling us that, in 2017 27 organisations received some kind of donation, which was more than €100 and less than €2,500, reveals little about the influence this had on decision-making.
For some time SIPO, and others, have been quietly highlighting problems with the ‘third party’ provisions of the Electoral Acts. Indeed, sensible reform proposals have been around for many years. First, the Minister for Housing, Planning and Local Government needs to move the focus to political spending (and away from the intention of the donor). Then he can examine the details of the regulation of political donations, including revising the donation limits upwards, targeting elections and referendums, and (recognizing the global reality we all live in) lifting the blanket ban on foreign donations.
As the adage goes, hard cases make bad law. The vast majority of CSOs work to ensure that our democratic decision-making is well informed and inclusive of the voices who are least likely to be heard – the result of this work is better decisions. The political work of CSOs is good for democracy, and these organisations require resources to undertake it. Of course, there may well be malign foreign political interference, and we need to have laws to prevent and deal with this. However, the current provisions on ‘third parties’ are inequitable and fail to realize ambitions of greater accountability, transparency and fairness in democratic decision making. They don’t work for democracy, and they don’t work for CSOs and the communities they represent. For years, SIPO and many of the CSOs involved have informally circumnavigated the worse effects of this legislation. But this very Irish solution to an Irish problem, just does not cut it anymore.
Anna Visser, is former director of The Advocacy Initiative, an expert on civil society advocacy and campaigning, and has recently completed a PhD on the democratic roles of CSOs.