Ineffective by Design: A Critique of Campaign Finance Law Enforcement in the United States, Australia, and the United Kingdom

By Skahan, Kelly Ann | Washington International Law Journal, April 2018 | Go to article overview

Ineffective by Design: A Critique of Campaign Finance Law Enforcement in the United States, Australia, and the United Kingdom


Skahan, Kelly Ann, Washington International Law Journal


I. Introduction

In modern democracies, it takes money to run an election campaign and laws to make sure a campaign is run fairly. Those laws are tested often. Imagine: in one country, a government body receives five separate reports, each alleging that political action committees have created shell companies from which wealthy donors can contribute unlimited funds to their chosen candidates-an illegal act.1 Across the Atlantic, the political party in power egregiously oversteps long-established candidate spending limits in over two dozen constituencies en route to a decisive electoral victory.2 A hemisphere away, a Senator transfers funds from his labor union's accounts to his own campaign war chest, disclosing the donation fourteen months after he is reelected-a full eight months after the law required him to do so.3 The violations are not related, the beneficiaries are of different political ideologies, and they are located thousands of miles apart. The common thread in each corner of the globe: the bodies tasked with stopping violations of campaign finance law do nothing in response.

Though similar in governmental structure and lawmaking procedure,4 the united states, Australia, and the united Kingdom each approach campaign finance laws differently. Disclosure thresholds,5 contribution limits,6 foreign contributions,7 and the role of public financing8 vary widely among the three countries. However, they share a common theme: all three countries' campaign finance laws are ineffective because they fail to empower their respective campaign finance boards to meaningfully enforce those laws. Specifically, political infighting paralyzes the United States' Federal Election Commission ("FEC"), the Australian Electoral Commission ("AEC") fails to effectively monitor violations of campaign finance law, and the insufficiently harsh penalties of the Electoral Commission ("EC") fail to deter the United Kingdom's political parties from overstepping spending limits.

Part i of this Comment examines the establishment, authority, and structure of the campaign finance law enforcement bodies of the united States, Australia, and the United Kingdom-the FEC, the AEC, and the EC, respectively. It also discusses instances in which each body failed to enforce clear violations of campaign finance law in their respective jurisdictions. Part II examines the establishment, authority, and structure of the New York City Campaign Finance Board ("CFB"), known widely as one of the most effective campaign finance law enforcement bodies in operation today,9 as well as an example of effective enforcement on the part of the CFB. Part III evaluates the FEC, AEC, and EC using five factors that make for effective enforcement, based on the New York City CFB's structure. Part IV and finally, this Comment addresses the limits and challenges of applying measures that succeed on the municipal level to a national enforcement body.

II. The FEC, AEC, and EC

The United States' Federal Election Commission, the Australian Electoral Commission, and the United Kingdom's Electoral Commission are each structured differently, with varying jurisdictions and responsibilities. However, each body is ineffective because none can effectively enforce the laws they ostensibly exist to maintain, develop, and impose. Specifically, the FEC is crippled by deadlocked votes and consequent inaction, the AEC fails to effectively monitor and audit campaign finance violations in the first place, and the EC lacks authority to impose substantial penalties even when significant violations occur.

A.The United States 'Federal Election Commission

The United States' history of campaign finance regulation began in 1907. President Roosevelt's push for campaign finance reform led Congress to enact the Tillman Act, which banned corporate contributions to political candidates.10 Regulation continued through the first half of the twentieth century with the adoption of the Federal Corrupt Practice Act and its amendments, the Hatch Act, the Smith-Connally Act, and the Taft-Hartley Act, each seeking to rein in corporate and union contributions to election campaigns. …

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