Laws and regulations for political parties
‘It is better that a citizen has his or her ideas introduced into elections by a small political party than not to have them introduced by any political party at all.’
In this story we take a look at the ways in which other countries deal with political parties in their constitutions, electoral laws and party laws.
We focus on countries in Europe and Latin America, because their historical experience is on some fronts similar to that of Iraq: in the recent past, next to ‘Westminster-style’ liberal democracies, these continents have also known one-party systems outlawing other parties or severely limiting new parties’ access to official registration and participation in elections.
On both continents such authoritarian times were followed by democratization and changes in party laws to allow not only an influx of new parties but also of social movements, unions and high profile independent individuals to participate in elections. Inevitably new party laws were critically followed and sometimes needed dozens of drafts or mass protests before anything was agreed. Was the old guard trying to keep newcomers out with the help of clever ‘gatekeeper’ provisions or not? That was the Big Question in those days.
Let us bear in mind that every country has a unique history. Parties everywhere face unique challenges by voters to their power over elections. Very similar-looking laws to regulate the behavior of parties can have very different consequences on the ground, in that complex reality in which parties operate. What works well for democracy or the struggle against corruption in one country, might have unwanted effects in another.
Everywhere in Europe and Latin America, despite the liberalization, laws to regulate the life of political parties ‘are far exceeding what would normally be acceptable for private associations in a liberal society’. Many regulations were introduced or were substantially extended in the wake of the introduction of government funding. Inevitably the provision of state subsidies demanded a more codified system of party registration and controls over the parties’ income and expenditure.
But there were also worries about the lack of democratic standards inside new parties. Mafia families or companies posing as parties to get hold of tax advantages for parties needed to be prevented from entering the political system.With separatist movements or certain neighboring countries in mind new constitutions sometimes asked explicitly of parties to respect national sovereignity and territorial integrity, basic human rights or the rejection of the use of violence.
Both continents have in this way become champions in experimenting with new regulations for parties. How far do you go? Should the law prescribe how parties are organized internally? Determine that they must hold primaries to elect candidates in public? Should the law prohibit that candidates have two paid political jobs, double nationality or a foreign father or mother? Should there be a limit on money they spent on television advertising? Should parties be obliged to have bylaws clarifying which leaders are responsible for what?
Whatever the country, its history, the strategies of governing parties to weaken newcomers, the radical dreams of social movements that want to participate in elections, there is no state in the world that doesn’t demand that parties must be registered. Everywhere, a party must at least register what is its name (with certain names sometimes being forbidden), who will be their candidate(s), and pay a small administrative registration fee that in most cases doesn’t exceed a few hundred dollars.
During the global democratization wave that began by the end of the 1980’s, many prohibitions of parties were lifted. Bans of leftist, ethnic, religious and regional parties disappeared, one-party-systems and multi-party-cartels collapsed or governing parties grudgingly accepted to loose their monopoly over elections. The ‘protection model’ against new parties seemed gone.
But old habits die hard (and, of course, in some cases as in Eastern Europe, to help democratization, new bans were pronounced on certain ideologies, old parties or programmes, like what happened with the Baath Party in Iraq).
It often took some time and much popular pressure to adjust the legal rules, to begin with the rules of registration, a favorite sporting ground of incumbents. With the help of quantative requirements it seemed possible to delay the democratic tsunamis lurking on the horizon and raise party formation costs. Making trouble for newcomers already during their first steps consisted for example in demanding that a new party had at the moment of registration at least 30,000 members (Mexico), or at least hundreds of members paying a regular contribution to the party, or thousands of voters declaring officially their support.
Elsewhere a new party’s life was made very hard by the obligation to have local members committees around the country (Peru), in other states a new party had to put forward a minimum number of candidates or it had to have won already at least one seat in parliament in previous elections. In another case (Argentina) a party had to have been registered for three years before it had the right to participate in elections.
Other examples of requirements aimed at promoting democratic standards or excluding outsiders were the obligation to prove that a party was truly democratic in its internal organization, for example by candidates being elected in a public assembly that should be open to non-members too.
Such were the days.
What old regimes had been trying to do in the past, namely to carve into stone rules favoring their hold on power, turned out to be counterproductive, especially in Latin America. ‘Elites that build their power merely on the formal rules of the game, risk eating away at the political legitimacy of the system that these rules seek to uphold.’
The problem then is not only that voters understand who legislated these manmade, non-divine rules and that they are not ready any longer to defer to the decisions of ‘the authorities’. The voters who contest the party system, also believe that the inertia, passivity of the political system leads to the continuation of economic and social problems, or continuation of malignant meddling by foreign powers, institutions, banks and companies, or, worse, the end of their private foreseeable future. In Argentina, the lack of real reforms even led to a long-lasting, wide popular protest movement with the slogan ‘They all should get out’.
Too many parties?
Of course some proof of popular support is not unreasonable to ask when a party registers. But when authoritarian regimes had to be transformed into democratic governments and registration was made very easy with minimal rules and minimal costs, the result was often a plethora of new parties and a paucity of appealing, solid political programmes – so many parties sprang into life that stable government became impossible or the party system threatened to collapse. So, for a while, anarchy and chaos ruled and dissent couldn’t be channelled any longer through a representative process: that wasn’t exactly the aim or promise of democratization, or the wish of the opposition.
In a few instances in history an army of small parties was created by the old regime – or they were believed to be organized by the old guard – in order to splinter the opposition and waste the votes of millions of citizens. Algeria by the end of the 1980’s might have been a case in point, while a similar situation in Italy in the 1990’s was actually the result of very big egos of men who, during the chaos after Italy’s five-parties-cartel had collapsed, all dreamed of becoming president without a decent party behind them (in some cultures, megalomania seems an eternal trait).
Other small parties in Europe and South America are of the type of ‘disposable parties’ that promote one person for one election, with fancy names, catchy slogans but no serious program. Bolivians called the tiny parties that registered after the end of dictatorship ‘taxi parties’ because their national founding convention could be held in a taxi.
The registration condition that a party must have local member committees around the country, or that it must have representatives or candidates in every election district, was often dropped in transition periods – with no other aim than to break the power of local bosses. New parties or new presidential candidates would have had to negotiate with them, promise them some rewards, but didn’t like to do that or were unable to make credible promises.
The elimination of the influence of traditional local power brokers was also the hoped-for result of measures turning a country into one big election district, with national lists for parliamentary elections. The real result on the ground was often that more seats in parliament than ever before went to individuals and small parties and that there was less support for the party or presidential candidate who had hoped to benefit from the new rules (for ex. president Fujimori in Peru).
Iraq and the Netherlands belong to those rare exceptions in the world that demand high registration fees. In Holland the aim hasn’t been achieved: small parties (of one or two MP’s) continue to enter the parliament. The Iraqi High Election Commission (IHEC) asks a crazy, high registration fee, indirectly justifying it by saying people might get a fine for election fraud. That is like asking certain citizens to pay in advance a year’s wages in case they might commit some crime – strange if not ridiculous.
When does a country have ‘too many parties’? Mexico after the end of one-party-rule had 11 parties and adopted new legal regulations to stop the ‘fragmentation’, Brazil counted 30 parties in the same time but did nothing.
The argument for creating tougher threshholds for parties to be part of government, is a hundred years old and especially well-developed in France, by the famous sociologist Maurice Duverger. The idea is: if the government always consists of a coalition of parties, the small parties in the cabinet, expressing the sometimes extreme wishes of minorities, become much too powerful, and the risk of such extremists voting against their own cabinet all too real (Holland, Italy and Israel are cases in point).
Maurice Duverger sarcastically remarked that, of course, instable coalition governments are the delight of the media, always speculating how and when the cabinet will fall, watching out for plots, incidents getting out of hand, revengeful ministers, political blackmail, all kinds of secrets from the corridors of power. But such ‘unmodern governments’ as Duverger called them, don’t lead to efficient government and neither to good news about the economy in the media.
I think his argument might be valid in some periods but not always: nobody makes ‘stability’ the most important criterion when revolutions or deep reforms have to take place. Big change and stability is impossible. And we must also not forget that ‘saving the stability’ has been an excuse for coups d’états and foreign interventions, as well as bans on political parties.
Nevertheless, democratic states with extraordinarely tough threshholds do exist, such as Germany. The ways to make the threshhold higher are mostly these: only parties that obtain a certain percentage of the vote, can obtain seats in parliament; in Germany a party needs at least 5%, otherwise it can go home. The other method is the introduction of a district system, as in the UK, that basically works like this: the candidate who gets most votes in an electoral district, goes to parliament, as MP of the biggest party that is going to govern or as MP for the opposition.
Political scientists usually are no big friends of political parties, always suspecting parties of not wanting to share power or trying to make cartels. But their own research shows that legal provisions for registration and other ‘gatekeeper’ laws for new parties have often more to do in our century with efforts to combat corruption and enhance transparency than with controlling access to the political system. Examples such as Bulgaria and Estonia show that tough party regulations can coexist with a high rate of ‘permeabiblity’ of party systems.
Judges in action
In a few states judges are not allowed to be member of a political party, for a very precise reason: when new parties are refused registration or otherwise discriminated against, they can go to court and ask the opinion of judges. In Germany, ‘the heartland of party law’ in Europe, new local parties went to the Constitutional Court because they were refused their part of public funding. They won as the law was so clear on that point (and then those parties still had to be patient for months).
The United States has an exceptional history of many cases in the courts concerning the application of party law and electoral law. In the rest of the world, bringing government institutions to court, because they discriminate against a political party, doesn’t happen frequently. It is a rare moment in a country’s history when judges become full political actors and it is interesting to see how they argue their decisions.
In Australia for example, a daughter of British-style democracy, a party tried to challenge a new legal rule that a party needed to have at least five hundred members to be registered. This leftwing party was registered but threatened to loose its registration because it couldn’t prove it still had the required 500 members. The party brought the electoral commission to court arguing that the parliament by introducing the 500-rule had infringed on the right of voters to elect directly whom they want. In other words, parliament had no right to create filters. The judges however concluded that the new 500-rule was ‘not unreasonable or irrational’. Parliament had the right to legislate for its own affairs, they added, and the right to determine the electoral system, as well as to adapt it ‘to developments in public opinion and changing democratic standards.’
Until 2003, Canada required a political party to run candidates in at least 50 electoral districts in order to qualify for registration – a tough requirement not seen elsewhere in western democracies. The Communist Party of Canada had been registered for over a quarter of a century, but then lost its registration, as it wasn’t able to field enough candidates. The consequences were dramatic because the party was forced to liquidate its assets, pay its debts and remit the outstanding balance of state subsidies to the government. Its leader, Miguel Figueroa, brought the government to court. The Supreme Court took up the case and held the 50-candidates-rule unconstitutional. The court noted that ‘all political parties, whether large or small, are capable of acting as a vehicle for the participation of individual citizens in the public discourse that animates the determination of social policy. For example, marginal or regional parties tend to dissent from mainstream thinking and to bring to the attention of the general public issues and concerns that have not been adopted by national parties. They might exert less influence than the national parties, but still can be a most effective vehicle for the participation of citizens whose preferences have not been incorporated into the political platforms of national parties. It is better that an individual citizen has his or her ideas and concerns introduced into the open debate of the electoral process by a political party with a limited geographical base of support than not to have his or her ideas and concerns introduced into that debate by any political party at all.’ Eventually, the parliament rushed through new legislation just before new elections. It replaced the old 50-rule by a regulation requiring parties to run at least one candidate (to be sure they are serious about competing in an election) and to show they had at least 250 members (previously, the number had been 100).
In many discussions about party law, it is often forgotten how crucial it is that laws affecting parties can be arbitrated and interpreted by judges who take their decisions based on their worldview, interpretations of party law in the past, their ideas as to the functions parties play in their democracy and their understanding of democratic practices. Especially their view on the practices is important, in those cases – too many – when electoral law and party law is based on a kind of ideal-type parties that actually don’t exist in reality. Judges look, should look at the complete picture, how laws, constitutional rights and the aims of regulations play out in reality.
As the examples of Australia and Canada show, judges can tend to follow the parliamentary majority’s point of view but also defend voters’ interests. But whatever is the outcome, court interventions show the moral nature of laws affecting parties, even very technical ones, and the discussion needed therefore of all elements involved when people call on a judge.
The moral background is also often expressed in the severe penalties for parties who try to place themselves above the law. In Belgium for example, a party will loose its generous state funding when it shows itself ‘to be hostile’ towards the rights and freedoms guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms. In Poland politicians can incur a fine but also two years prison if they lie in certain obligatory financial statements.
In general, being registered officially as a political party or conquering seats in parliament, brings certain benefits and privileges: public funding of election campaigns and other activities, access to state mass media to spread the message of the party, tax advantages, salaries for certain party employees. Perks differ per country but if the regulations are very permissive, it usually means that substantial benefits are nonexistent. But not always: France was an exception in recent years, when it tried to be fairer with new small parties. Some clever Frenchies founded parties only to get hold of the public funding and then did nothing to win elections. Needless to say that the law was soon made less lax and less generous.
All countries in Latin America and Europe provide their parties with public funding. It is actually the main reason for more and more regulation of party life on both continents, as the voters have a right to know where all this money is going. Reporting and disclosure duties are part and parcel of party law everywhere. Party laws nowadays often demand sound accounting, annual financial reports and information about donations and member fees.
Party laws put limits on donations from companies or other specific sponsors such as foreign powers, as well as limits on money spent for electoral advertising. They sometimes prohibit the use of commercial media for election advertising during election time as the state is offering equal access to state media to all registered parties. Buying votes is of course off limits everywhere, but parties are really creative in getting around it. We will not provide the long list of these underground activities, to give no one fresh ideas…
To live from politics
State funding for parties fits into a trend: parties count less and less on their members, their links with civil society have become weaker while their relations with the state have been strengthened – to say the least. A clear line between state and parties doesn’t exist and sometimes the parties simply are the state, not only because party leaders occupy all important positions of power, with no room for party-less individuals, but also because tens of thousands of party members are employed in the bureaucracy, army, police and dozens of other government institutions such as councils and committees, universities and hospitals. In a way, politicians and party members nowadays often form a class that has one big advantage over other social classes: it legislates about itself, for itself. It has become very doable everywhere not to live for politics as a kind of moral calling but to live off politics.
So, it’s no wonder parties around the planet say they deserve public funding because, they say, we provide essential services to democracy, such as educating and selecting candidates and running elections. Where would democracy be without us?
It’s also no wonder that while criticism of party systems is widespread and virtually universal nowadays, new parties are born every day. Political scientists are often amazed about the ongoing rush of new parties to get aboard of what most researchers consider to be sinking ships. Let us not be too cynical about new parties’ motives, such as great salaries and pensions. There are still also not so selfish reformers, rebels and revolutionaries who need a fair chance.
The quotes in this article come from studies published on the website of the Dutch university of Leiden: http://www.partylaw.leidenuniv.nl/.