The Ectopic Nature of Electoral Finance Law


Professor John Prebble has a theory that the incomprehensibility of tax law is caused by the misalignment between “natural law” and “the laws of men and women.”  There exists, he argues, an ectopia (or dislocation) between the economic concept of income and the legal concept of income that essentially cannot be solved.  This ectopia is the result of physical facts such as geography (e.g. where someone is resident) and time (e.g. income is earned on an annual basis) that the law is unable to treat neutrally.

I believe that the same thesis applies to electoral finance law.  It is a law of nature that people will try to convince others of their beliefs.  Trying to convince others will always have a cost – sometimes it will cost money, sometimes it will cost time – but it will always cost.   However, the laws that we design to try to deal with speech are necessarily contrived.  Electoral finance laws have to target particular kinds of speech (it cannot regulate what I say to my neighbour), and have to target a particular type of expense (typically money, not time).  That’s all you need for the entire system to start to represent a nonsense.

As an example, consider the initial Government position to cap expenditure of political parties, but not parallel campaigners.  The obvious flaw – as pointed out by Metiria Turei – is that parties will merely use parallel campaigns to advertise beyond the legislated limits.  In order to maintain the effect of limits on political party expenditure, they have to prohibit parallel campaigners from supporting a party.  The implication of this is an increase in the amount of negative campaigning by parallel campaigns.  Negative campaigning is not per se problematic, but when it arises by virtue of a distortion in the advertising market, then we are decreasing human welfare. 

Starting down the road of electoral finance law leads inexorably to arbitrary decisions you wish you did not have to make.  No matter how many times you compile an Issues Paper, seek comments on a Proposal Paper, or send potential laws to a Select Committee, there is no real way to avoid the ectopia of electoral finance law.

Whenever the debate over electoral finance laws becomes circular, I am reminded of a quotation from Marla Daniels to Cedric in The Wire:  “You cannot lose if you do not play.”


2 Responses to “The Ectopic Nature of Electoral Finance Law”

  1. Jesse Says:

    Justice Thomas touched on this in his dissent in McConnell:

    “It is not difficult to see where this leads. Every law has limits, and there will always be behavior not covered by the law but at its edges; behavior easily characterized as “circumventing” the law’s prohibition. Hence, speech regulation will again expand to cover new forms of “circumvention,” only to spur supposed circumvention of the new regulations, and so forth. Rather than permit this never-ending and self-justifying process, I would require that the Government explain why proposed speech restrictions are needed in light of actual Government interests, and, in particular, why the bribery laws are not sufficient.”

  2. Eric Crampton Says:

    Bob Tollison used to say “We’re all part of the equilibrium”….

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