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CORRUPTION, TRANSPARENCY, AND REPUTATION: THE ROLE OF PUBLICITY IN REGULATING POLITICAL DONATIONS

Published online by Cambridge University Press:  03 May 2016

Jacob Rowbottom
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Abstract

This article looks at the public disclosure of political donations as a case study to examine the role of transparency in addressing concerns about undue influence and corruption. The article will explore three issues. The first is to understand what it means to say that a political donation is corrupt. There is considerable disagreement on the ethics of political fundraising and this article will show how public opinion has a role in setting the standards expected of politicians. The second issue is what role the public disclosure of political donations plays in deterring and detecting corruption. While the disclosure requirements were introduced to promote greater trust in politics, it will be argued that increases in transparency have fed a growing culture of mistrust. The logic of the transparency requirements also requires the free public discussion of particular political donations and related ethical issues. The third issue is how that process of free discussion can come into tension with rights to privacy and reputation. The article will explore how the attempts to reconcile the different areas of law both reflect and shape the political culture.

Keywords

corruptiontransparencypolitical donationsdefamationprivacy
Type
Articles
Information
The Cambridge Law Journal , Volume 75 , Issue 2 , July 2016 , pp. 398 - 425
Copyright
Copyright © Cambridge Law Journal and Contributors 2016 

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References

1 R v Wellburn (1979) 69 Cr. App. R. 254, 264, following Cooper v Slade (1858) 6 H.L. 746.

2 S. Rose-Ackerman, Corruption and Government: Causes, Consequences, and Reform (Cambridge 1999), 91.

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4 See B. Friedman, Democracy Ltd: How Money and Donations Corrupted British Politics (London 2013), 151.

5 Citizens United v FEC, 558 U.S. 310 (2010), 360.

6 McCutcheon v FEC, 188 L.Ed. 2d 468.

7 Cruddas v Calvert [2015] EWCA Civ 171; [2015] E.M.L.R. 16.

8 Cruddas [2015] EWCA Civ 171; [2015] E.M.L.R. 16, at [28].

9 See Lowenstein, “Political Bribery”, p. 784.

10 Philp, “Defining Political Corruption”, p. 445.

11 Sometimes referred to as the “public office” definition. A. Heidenheimer (ed.), Political Corruption: Readings in Comparative Analysis (New Brunswick 1970), 4.

12 Code of Conduct for Members of Parliament, (2015) HC Paper 1076 (Session 2014–15), at [11].

13 See Cruddas v Calvert [2013] EWCA Civ 748; [2014] E.M.L.R. 5.

14 Warren, M., “What Does Corruption Mean in a Democracy” (2004) A.J.P.S. 328CrossRefGoogle Scholar, 330–31.

15 See Heidenheimer, Political Corruption, p. 6.

16 A reasonable expectation test is used in the Bribery Act 2010, ss. 3–5.

17 J.C. Scott, Comparative Political Corruption (Englewood Cliffs, NJ 1972), 4.

18 Warren, “What Does Corruption Mean”, p. 336.

19 Kurer, “Corruption”.

20 Ibid., at pp. 230–31. See also Lowenstein, “Political Bribery”, p. 828.

21 Similarly, Kurer states that public opinion can provide “a criterion for evaluating” the definitions of corruption. Kurer, ibid., at p. 224.

22 D. Thompson, Ethics in Congress (Washington 1995), 7.

23 D. Beetham, “Moving Beyond a Narrow Definition of Corruption” in D. Whyte (ed.) How Corrupt is Britain (London 2015), 41.

24 Ibid.

25 L. Lessig, Republic, Lost (New York 2011), p.231.

26 See Thompson, Ethics in Congress, pp. 43–48.

27 Brunetti, A. and Weder, B., “A Free Press Is Bad News for Corruption” (2003) 87 Journal of Public Economics 1801CrossRefGoogle Scholar, 1805, where both parties collude in the corrupt exchange. Lord John Russell, Hansard, HC Deb. vol. 130 col. 412 (10 February 1854): “… all the parties engaged in the offence have an interest in concealing the acts of which they are guilty.”

28 Z. Teachout, Corruption in America (Cambridge, MA 2014), 11.

29 Political Parties, Elections and Referendums Act 2000, s. 62 and Sch. 6.

30 Ibid., s. 63.

31 Ibid., s. 54.

32 The Fifth Report of the Committee on Standards in Public Life, The Funding of Political Parties in the United Kingdom (1998), Cm. 4057-I (“the Neill Committee”), at [10.1].

33 Brunetti and Weder, “A Free Press”, p. 1805, where both parties collude in the corrupt exchange.

34 For this line of argument, see Adsera, A., Boix, C., and Payne, M., “Are You Being Served? Political Accountability and Quality of Government” (2003) 19 J.L.Econ& Org. 445CrossRefGoogle Scholar.

35 Ibid.

36 The Neill Committee, at [4.15].

37 Ibid., at para. [4.5].

38 For discussion of the use of transparency to increase the authority of government, see J. Ferejohn, “Accountability and Authority: Toward a Theory of Political Accountability” in A. Przeworski, S. Stokes, and B. Manin (eds.), Democracy, Accountability, and Representation (Cambridge 1999).

39 For example, the point was made in debates about extending donation disclosure to Northern Ireland. See House of Commons Northern Ireland Select Committee, Draft Northern Ireland (Miscellaneous Provisions) Bill (2013), HC Paper1003 (Session 2012/13), at [13]. Electoral Commissioner Anna Carragher told the Committee that transparency would “build trust and confidence”: see Q461.

40 Briffault, R., “Campaign Finance Disclosure 2.0” (2010) 9 Election Law Journal 273CrossRefGoogle Scholar, 281.

41 For example, in 2001, Sir Paul Getty donated £5 million to the Conservative Party.

42 In March 2014, Sir Michael Hintze made a single donation to the Conservative Party of over £1.5 million. Over 2015, the trade union Unite gave just under £2.9 million to the Labour Party.

43 The Neill Committee, at [4.39].

44 Ibid., at para. [4.39].

45 Ibid., at para. [7.24], though compare para. [8.7].

46 Ibid., at para. [6.7].

47 Thirteenth Report of the Committee on Standards in Public Life, Political Party Finance: Ending the Big Donor Culture (2011), Cm. 8208.

48 Some MPs recognised this in the parliamentary debates on the PPERA; see Martin Linton MP, Official Report of Standing Committee G, Political Parties, Elections and Referendums Bill, cols. 124–25 (27 January 2000).

49 Briffault, “Campaign Finance Disclosure 2.0”, p. 286, citing K. Sullivan, “Against Campaign Finance Reform” (1998) 1998 Utah L.Rev. 311, 326.

50 Buckley v Valeo (1976) 424 U.S. 1, 67.

51 HL Deb. vol. 611 col. 1130 (3 April 2000). For similar arguments, see e.g. Robert Walter MP, Official Report of Standing Committee G, Political Parties, Elections and Referendums Bill, cols. 131–32 (27 January 2000). Naomi Long MP, Hansard, HC Deb. vol. 564 col. 82 (24 June 2013).

52 HL Deb. vol. 611 col. 1136 (3 April 2000).

53 See K. Sullivan, “Political Money and Freedom of Speech” (1997) 30 U.C.Davis L.Rev. 663, 681–682.

54 See discussion in L. Lessig, “Against Transparency”, The New Republic, 9 October 2009.

55 Lessig, Republic, Lost, pp. 257–60.

56 B. Cain, Democracy More or Less (Cambridge 2015), 42–43.

57 Ibid., at p. 43.

58 See Lessig, “Against Transparency”.

59 Ibid.

60 Mell, A., Radford, S., and Thevoz, S., “Is There a Market for Peerages? Can Donations Buy You a British Peerage? A Study in the Link between Party Political Funding and Peerage Nominations, 2005–14” (2015) Oxford University Department of Economics Discussion Paper Series 744Google Scholar.

61 Ibid.

62 Ansolabehere, S., “The Scope of Corruption: Lessons from Comparative Campaign Finance Disclosure” (2007) 6 Election Law Journal 163CrossRefGoogle Scholar, 164.

63 For discussion of these limits, see M. Gilens, Affluence and Influence (Princeton 2012), 243–47.

64 Ibid., at p. 246.

65 F. Baumgartner, J. Berry, M. Hojnacki, D. Kimball, and B. Leech, Lobbying and Policy Change (Chicago 2009), 193.

66 Gilens, Affluence, p. 246.

67 N. Allen and S. Birch, Ethics and Integrity in British Politics (Cambridge 2015), 35; see also p. 183.

68 J. Thompson, Political Scandal: Power and Visibility in the Media Age (Cambridge 2000), 17.

69 Buckley (1976) 424 U.S. 1, 66–67: the US Supreme Court stated that the donations data can “aid the voters in evaluating those who seek federal office”.

70 See E. Garrett, “Voting with Cues” (2003) 37 U.Rich.L.Rev. 1011.

71 See McGeveran, W., “Mrs. McIntyre's Chequebook: Privacy Costs of Political Contribution Disclosure” (2003) 6 U.Pa.J.Const.L. 1, 24–29Google Scholar, querying the usefulness of donations data in relation to voting decisions.

72 Applause Store Productions v Raphael [2008] EWHC 1781 (QB); [2008] Info. T.L.R. 318, at [80], and the Data Protection Act 1998, s. 2.

73 See 52 U.S.C. 30104.

74 The Neill Committee, at [4.32]. However, as noted earlier, the Committee did not assume that all donations above that threshold were corrupt, but rather that such donations had the potential to generate suspicion.

75 The Neill Committee proposed a lower threshold for accounting units, because smaller sums were more likely to have leverage over local decisions, at [4.35].

76 Political Parties, Elections and Referendums Act 2000, s. 69(4).

77 Buckley (1976) 424 U.S. 1, 74. See also Brown v Socialist Workers ‘74 Campaign Committee (Ohio) (1982) 459 U.S. 87.

78 See Northern Ireland (Miscellaneous Provisions) Act 2014, granting power to increase levels of transparency.

79 McGeveran, W., “Mrs. McIntyre's Persona: Bringing Privacy Theory to Election Law” (2011) 19 Wm. & Mary Bill of Rts. J. 859Google Scholar.

80 Ibid.

81 Buckley (1976) 424 U.S. 1, 83.

82 Briffault calls for the US to adopt a model closer to the UK's in which only larger donations are disclosed. See Briffault, “Campaign Finance Disclosure 2.0”, p. 294.

83 Cruddas [2015] EWCA Civ 171; [2015] E.M.L.R. 16; Yeo v Times Newspapers [2015] EWHC 3375.

84 Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652. The claim failed in relation to the full newspaper articles, but was upheld in relation to posters and messages on Twitter with the words “Treasurer for Sale”.

85 Massie v McCaig [2013] CSIH 14; 2013 S.C. 343, in which the appeal court refused an interim interdict, in part stressing the free-speech implications and the protection given to fair comment. The action for damages was dropped following a public apology from the councillor; see Aberdeen Evening Express, 28 October 2014.

86 For several examples, see “Call for East Runcorn MP to Explain ‘Coincidence’ of Donation and Absence from Plain Packaging Vote”, Liverpool Echo, 25 March 2015; “Political Donations: Secretive Groups Have Funnelled £7.35 m to Tory Politicians”, The Mirror, 19 March 2015; “Opaque Organisations Give Tories Nearly £500k in Concealed Donations”, The Guardian, 14 March 2015; “Tory's U-Turn Over Vow to Return Donation”, Daily Mail, 18 February 2015; “Tory MPs Were Given Donations by Businessman in £13 m Tax Battle”, Evening Standard, 17 February 2015; “Invitations Go Out for Conservative Fundraiser”, The Guardian, 16 December 2014.

87 Hockey [2015] FCA 652.

88 Silkin v Beaverbrook Newspapers Ltd. [1958] 1 W.L.R. 743, 746.

89 Campbell v Spottiswoode (1863) 3 B. & S. 769.

90 Branson v Bower (No. 2) [2002] Q.B. 737, at [25].

91 Reynolds v Times Newspapers [2001] 2 A.C. 127.

92 Derbyshire County Council v Times Newspapers [1993] A.C. 534; Goldsmith v Bhoyrul [1998] Q.B. 459.

93 Waterson v Lloyd [2013] EWCA Civ 136; [2013] E.M.L.R. 17, at [66].

94 Thompson, Political Scandal, p. 23.

95 See Yeo v Times Newspapers [2014] EWHC 2853 (QB); [2015] 1 W.L.R. 971, at [97].

96 Defamation Act 2013, s. 4.

97 See Yeo [2015] EWHC 3375, at [29], and at [136], where Warby J. notes that the principles of Reynolds privilege “flow from the principles established in Strasbourg” under the ECHR.

98 Cruddas v Adams [2013] EWHC 145, at [9]. The case arose from a blogger's statements about Cruddas following a newspaper sting operation, which itself was the subject of a separate defamation in Cruddas [2015] EWCA Civ 171; [2015] E.M.L.R. 16.

99 Flood v Times Newspapers [2012] UKSC 11; [2012] 2 A.C. 273, at [195]

100 See Pfeifer v Austria (2009) 48 EHRR 8; 24 B.H.R.C. 167, at [35]. Lindon v France (2008) 46 EHRR 35, at [57].

101 Post, R., “Social Foundations of Defamation Law” (1986) 74 C.L.R. 691CrossRefGoogle Scholar, 712.

102 Cruddas [2013] EWCA Civ 748; [2014] E.M.L.R. 5.

103 Cruddas v Calvert [2013] EWHC 2298, at [83]: “The present system of party funding, whether desirable or not, is lawful and practical …. This court cannot declare to be corrupt, as a matter of fact, the system of party funding authorised by Parliament and adopted by the Conservative and other parties.”

104 Cruddas [2015] EWCA Civ 171; [2015] E.M.L.R. 16, at [28].

105 Though Cruddas won in respect of allegations relating to the breach or evasion of the ban on foreign donations.

106 Yeo [2014] EWHC 2853 (QB); [2015] 1 W.L.R. 971.

107 For discussion of “de-politicisation” more generally, see C. Hay, Why We Hate Politics (Cambridge 2007), 78–87.

108 J. Keane, Democracy and Media Decadence (Cambridge 2013), 40.

109 Ibid., at p. 45.

110 Ibid., at p. 106.

111 M. Flinders, Defending Politics (Oxford 2012), pp. 44–45.

112 Ibid., at p. 44–45.

113 Ibid., at p. 144.

114 Ibid., at p. 46.