Justifications for regulating party affairs: Competition not public funding

Abstract

Overview The regulation of the internal affairs of political par ties varies between electoral and legal cultures, finding different balances between party auto nomy and freedom of association, and other regu latory goals such as transparency, account-ability and in ternal democracy.1 This chapter seeks to con tribute to the broad debate about the degree to which regulation of the internal affairs of political parties is justified. Its specifictopic is whether public funding - and its adminis-trative concomitant, party registration - legitimates such regulation. My argument is ʼno’. Public funding, also known as state aid, state subsidy or state subvention, is no justification for regulating party affairs, except aspects of their finan cial account ability. This is not an abstentionist position. Regulation of party affairs may be entirely justified, despite its effect on freedom of associ-ation. But such regulation must be a response to particular concerns in par ticu lar jurisdictions, such as the degree of power that par ties wield, or the level of cor-ruption or ossification in the party system. Explicit appeals to the fact of public funding do not justify treating par ties as quasi-public entities and hence susceptible to regulation. Such an instinct appeals to a tendency for taxpayers to resent public funding. It draws on the language of share- holding, as if there were rights which taxpayers and the state may acquire in return for their ‘investment’ in par ties (Johns 2001: 291). It risks eliding party auto nomy as an im port ant prin ciple. Similarly, the tendency of regu lators to ‘juridify’ civic entities when they as sume a tan gible legal form is a form of regu latory slippage. In the case of pol- itics, this may occur when par ties move from being mere civic asso ci ations engaged in the elect oral sphere, to being formally ‘re gis tered’ to contest elec- tions. Registration is merely an administrative pro cess, useful to streamline systems of public funding and ballot labelling, and to minimise confusion between party names. Yet the act of registration forms a ‘peg’ on which regu- lators feel freer to hang regulation than would be the case if the party remained an unincorp or ated asso ci ation, its form not captured by law. My ultimate claim is that public funding and party regulation should harmo- nise around a shared goal, namely the pro mo tion of diverse, robust and fair elect oral com peti tion. Understood that way, party auto nomy and freedom of asso ci ation ought not be sacrificed because of public funding. On the contrary, the law’s fundamental inter est in its dealings with par ties, whether through public funding or direct regulation of them, is in maximising elect oral com peti- tion, to promote elect oral choice and repres enta tion. Viewed against the goal of com petit ive elections, whether par ties follow one or more models of in ternal demo cracy or, conversely, are in ternally hierarchical or even elitist and discriminatory, becomes a second- order issue. The law’s main inter est in par ties’ in ternal affairs is to require sufficient transparency so that electors and potential members alike can take any concerns they have about par- ties’ in ternal machinations into account in their de cisions about who to vote for or associate with. Of course, in practice not all public funding regimes promote the goal of greater elect oral com peti tion.2 Sometimes public funding achieves something of the reverse, helping entrench the make- up of the existing party system. In any event, the underlying structure of the voting system and its level of proportional- ity typically have a greater impact on com peti tion than funding mech an isms. But the answer to any anti- competitive effects thereby created is to revisit the mech- anics of the public funding or voting systems, rather than to unneces sar ily regu- late par ties’ in ternal affairs.