In Custodia Legis
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Introduction
This comparative summary covers the country reports prepared for Australia, France, Germany, Israel, and the United Kingdom. The Foreign Laws Specialists of the Law Library were asked to discuss the following issues related to the financing of political campaigns: the length of election campaign periods; funding sources; restrictions on contributions and expenditures, if any; and the implications of such restrictions on freedom of speech. All the reports focus on campaign finance relating to parliamentary elections, with the French report including some information on the President of the Republic who is elected by direct universal suffrage.
Duration of Official Campaigns
Official campaigns are usually brief in most of the countries surveyed. In Australia, federal election campaigns are traditionally approximately six weeks and voting is compulsory for all Australian citizens above the age of eighteen. In France, the President’s campaign only lasts for the two weeks preceding the first ballot and, if necessary, the week between the two ballots, while in the case of elections to the National Assembly, the campaign opens twenty days before the date of the first ballot. In the United Kingdom, the campaign period is typically five to six weeks. In Israel, it lasts 101 days prior to the date when the Knesset election takes place as scheduled, four years from the day on which the previous Knesset was elected. Early elections may result in a different duration. However, in Germany, federal law does not contain provisions limiting the duration of election campaigns. According to the Federal Constitutional Court, the day on which the Federal President announces the date of the election is of significance, as from that day to election day, the executive branches of the federation and the states must be particularly careful to remain neutral. This announcement is usually made six months before the election.
Private Funding
A. Sources of Contributions
All countries surveyed permit contributions by physical persons. Australia permits unrestricted private contributions subject only to disclosure requirements. In Germany, campaign finance law and accountability requirements focus on the party, not the individual candidate. The law is silent on contributions to individual candidates, but they appear to be permissible. These candidates are expected to turn contributions over to their parties. France limits the period when the contributions may be made to the year preceding the first day of the election; Israel restricts them to those made by their respective citizens or permanent residents and are not anonymous; and the United Kingdom restricts contributions above £200 (US$300)[1] to political parties and contributions above £50 (US$75) to candidates to those made by individuals registered on a UK electoral register.
Contributions from corporations are permitted in Australia and Germany while they are prohibited in France and Israel. In the United Kingdom only the following permissible donors can make a donation above £200 to a political party or above £50 to a candidate: a UK registered company, UK registered building society, UK registered limited liability partnership, UK registered friendly/building society, or UK-based unincorporated association.
Germany prohibits contributions from charitable organizations, trade unions, professional associations, industrial or commercial associations, and governmental bodies. Contributions from non-profit organizations are prohibited in France (except for political parties or groups). Such donations are permitted in Israel as long as they are reported and do not exceed the ceilings provided by law. Assistance to a candidate from his/her own party is similarly not prohibited in Israel. Contribution from registered political parties and registered trade unions are authorized in the United Kingdom.
Australia permits foreign contributions subject only to a reporting requirement. A bill that was recently defeated in the Australian Senate introduced a prohibition against foreign donations. Germany prohibits donations from aliens outside of the European Union if the donation exceeds €1,000 (US$1,300). Contributions from foreign corporations are also prohibited in Germany. Foreign states or foreign legal entities cannot make direct or indirect donations to political candidates or parties in France. Foreign individual contributions are prohibited in Israel in the general election but permitted in primaries. The United Kingdom prohibits the receipt of contributions from abroad, other than from British citizens living overseas who are still eligible and registered to vote.
B. Contribution Limits
Australia, Germany (except for anonymous contributions in excess of €500 (US$670)) and the United Kingdom permit unlimited contributions to candidates and registered political parties subject to various disclosure requirements. In Germany, for example, public disclosure of the donor must be made in the annual financial statement of the party if his contribution exceeds €10,000 (US$13,000) per year, and private contributions above €50,000 (US$67,000) must be immediately disclosed. France makes a distinction between contributions below or equal to €150 (US$200) (referred to as “cash contributions”) and contributions of more than €150. Contributions of more than €150 must be paid by check or online, with the donor duly identified. A physical person duly identified is allowed to contribute up to €4,600 (US$6,108). Cash contributions cannot exceed €150 per donor.
Israel limits the total amount that may be contributed to an individual’s campaign in the primaries. A candidate may receive one donation or several donations from an individual donor, the aggregate values of which may not exceed 10,000 NIS (US$2,401) in primaries. As for election to the Knesset, candidates do not have the right to an independent campaign. Party groups and candidate lists nominate their candidate for the post and incur expenses in promoting that individual’s candidacy. A party or a candidate list may not receive any donation from a household exceeding 2000 NIS (US$480) in an election year and 1000 NIS (US$240) for any other year.
Australia allows income tax deductions for both individual donors and corporate contributions, while France and Germany only allow deduction for individual donors.
Ceilings on Campaigns Expenditures
France, Israel and the United Kingdom impose ceilings on expenditures permitted in elections. Australia and Germany have no such ceilings. The ceilings are either set amounts or based on a formula that takes into consideration the number of eligible voters or constituencies. The ceiling on expenditures for the 2007 French presidential campaign for each presidential candidate was €16,166,000 (US$21,665,000) for the first ballot, and €21,594,000 (US$28,938,000) for each of the two candidates present at the second ballot. In the United Kingdom the limits for candidates was “£7,150 [US$10,000] plus £0.05 [US$0.07] per elector in a borough (urban) constituency and £0.07 [US$0.10] per elector in a county constituency” for the 2005 general election. In Israel, the total ceiling on election expenses is seventy financing units, subject to specific additional limitations (the latest available value of one financing unit in March 2003 was NIS 1,288,900 (US$309,825.20)). A party group composed of five Knesset members, for example, is limited to ten financial units.
Public Funding
A. Direct Funding
The United Kingdom does not provide public funding specifically for election campaigns. Australia, Germany, France, and Israel provide such funding. In Australia, France, and Germany, the condition for the funding is a minimum share of votes, 4 percent in Australia, and 5 percent in France. In Germany, public funding is granted to the political parties that received 0.5 percent of the vote in the latest national or European election, or 1 percent in the latest state election in one of the German states. In Israel, it is based upon the number of seats won and whether the party claiming the funds is a new party or not.
In Australia, the amount received is calculated by multiplying the number of first preference votes received by the rate of payment (for January 1, 2009, to June 31, 2009, the rate of payment is AU224.851 cents (US$1.67)). In France, the amount refunded is 50 percent of the allowable expenditure ceiling and cannot exceed the actual expenses as shown in the candidate’s campaign accounts. In Germany, there is an annual overall limit of €133 million (US$178 million) for all parties and a party may not receive more public annual funds than it has generated during the year. Each year, the parties are granted €0.85 (US$1.13) for each of the first four million votes obtained in an election and €0.70 (US$0.93) for each of the remaining votes obtained. In addition, the parties are entitled to matching funds of €0.38 (US$0.50) for each Euro received from membership fees and individual contributions not exceeding €3,300 (US$4,425).
Israel attributes a certain number of financial units to party groups that meet the eligibility conditions. A new party group is granted one financing unit per seat won plus an additional unit. To determine the number of financial units for established parties, the number of seats received by a party in the outgoing Parliament is added to the number of seats won in the incoming Parliament, and the total is then divided by two. As in the case of a new party, an additional financial unit is added.
B. Indirect Funding
Israel provides free transportation for voters having difficulty getting to the polls. France and the United Kingdom provide special benefits associated with publication of election materials.
The most substantial form of indirect public financing, however, is the allocation of free campaign broadcasts to parties and candidates participating in the elections in France, Israel, and the United Kingdom. France and the United Kingdom both prohibit paid political advertisement. The formulas for the allocation, length, and frequency of the broadcasts are determined by their respective administrative authority in charge of communication.
Financial Disclosure
All the countries surveyed impose financial disclosure requirements with a special election office, committee, or appropriate legislative body, and guarantee public access to financial data relating to campaign financing. In Australia, candidates, political parties, and donors whose contributions are in excess of the disclosure threshold must file annual or election period financial disclosure returns with the Australian Electoral Commission, which makes them available to the public.
In Germany, each party must submit an annual financial statement to the President of the Federal Diet. These statements are consolidated in an overall report by each party. The statements and the reports are subject to extensive review by the Federal Audit Office. The reports are published as legislative documents. In France, an independent administrative authority audits the campaign accounts of the candidates, which must be filed after the election. Campaign accounts are handled by an independent individual or association appointed by the candidate a year before the election takes place. Campaign accounts are published in a simplified form in the official gazette. In both countries, stringent fiscal and criminal penalties are imposed for serious violations of accounting and disclosure requirements.
In Israel, extensive review of financial records concerning both expenditures and contributions to political campaigns is conducted by the State Comptroller’s Office. The reports and recommendations of this office are made available to the public both in paper and online. Within three months after the election, political parties in the United Kingdom are required to submit a report to the Electoral Commission that details all their campaign expenditures. Candidates are also required to submit such a report within thirty-five days of the declaration of the election result.
Restrictions on Contributions and/or Expenditures and Freedom of Speech
Australia does not have restrictions on contribution amounts or expenditures ceilings. It has, through its Constitution, an implied freedom of political communication. It regulates the format and presentation of political advertising, but has little regulation of the content of political advertising. As for the ceiling on expenditures in France, the review of the constitutionality of laws is solely entrusted to the Constitutional Council, which expresses an opinion on the validity of a measure before it is promulgated. A provision declared unconstitutional cannot be promulgated and therefore cannot take effect.
Like Australia, Germany does not have restrictions on contribution amounts or on expenditures. It has no federal legislation on political advertisement. Free speech is guaranteed by the Constitution to the extent that it is not limited by statutory provisions. There are several criminal provisions that could conceivably apply to political speech, including provisions against various forms of hate speech, the glorification of violence in print, through the media, or by public statements or displays, and insults or disparagement.
In Israel, this issue has been raised primarily in the context of advocacy activities by non-profit organizations. It is recognized that financial restrictions potentially affect freedom of speech. This right, however, is not considered absolute and must to be balanced against other values, including the value of equality of the elections and the principle of commitment to the public interest, which dictate that elected officials should not depend on wealthy donors.
In the United Kingdom, the question as to whether the prohibition on paid political broadcasts infringes Article 10 of the European Convention on Human Rights, which proclaims the right to freedom of expression, has been raised. In a 1971 case against the United Kingdom, the European Commission of Human Rights held that it was compatible with the Convention while, in a 1994 case against Switzerland, it found that the prohibition was incompatible with Article 10 unless the ban met a “pressing social need.” Finally, in 1998, the European Court of Human Rights held in another case against the United Kingdom that imposing on independent third parties a £5 (US$7.50) ceiling on publications for the purpose of supporting a candidate’s election campaign was a disproportionate interference with the applicant’s freedom of expression.
Prepared by Nicole Atwill, Senior Foreign Law Specialist
May 2009
- Exchange rates are current as of May 2009. [Back to Text]
Last Updated: 07/25/2012
