The High Court has it wrong: banning political donations undermines free speech

by on 15 October, 2015

Last week, the High Court wrongly decided that the NSW government could cap political donations at up to $5,000.00 for individuals and ban property developers, tobacco, liquor and gambling companies from making any political donations at all.[1] According to the Court, “unreasonable” and “disproportionate” restrictions on political discussions are unconstitutional,[2] but bans on political donations are “reasonable” and therefore permitted because they reduce political corruption. That reasoning is flawed, and overlooks the vital role political donations play in democratic society. What these laws really do is undermine freedom of expression. Far from reducing the power of special interests, the law empowers the political establishment.

The Court’s reasoning overlooks that there are probity issues inherent in any political decision. There were probity issues when the ALP enacted the Fair Work Act because it is reliant on unions. There were probity issues when the Liberals introduced Workchoices because it is reliant on small business. More often than not, political interests and special interests align–for good or for ill. Just because a special interest agrees with you, supports you and has convinced you to change your view doesn’t make you corrupt. I don’t deny that special interest politics can be corrupt, particularly when those groups start asking for handouts from the taxpayer. Indeed I emphasise that this is what special interest groups often do. But the reality is that any time a law is passed or repealed, whether you think it a good idea or not, there is a special interest behind it. Special interests are inseparable from our democracy, which requires politicians to cater to them to win elections.

If special interest groups are banned from making political donations, the public is denied the right to hear their arguments, at least to a degree. To that extent the public is left less informed than they would otherwise be. If the point of our electoral laws is to ensure that the public make an “informed choice” during the election campaign as the Court claims, then it is illogical to censor the information they receive.

Moreover, those who lack the capacity to argue their case have every right to donate to political candidates that do. We all have a right to freedom of expression, subject to limited exceptions.[3] Financial limits on how we express ourselves are arbitrary and unjustified. If we limit the amount of paint an artist can buy, we limit artistic expression. In the same way, if we limit the number of  political donations people can make, we limit political expression. If we deprive a person of access to a lawyer, we strip them of their legal rights indirectly. If we deprive a person of the right to donate to a politician, we strip them of their right to be represented by their candidate or representative. Because bans on political donations restrict our ability to influence politics and rely on our political representatives, they are a form of indirect censorship.

Banning political donations means that the politicians who make the rules will be the only special interest group with any say. They will decide how much taxpayer funding their election campaigns get. Taxpayers will foot the bill for their campaigns even if they disagree with their political platforms. It is absurd for Liberal taxpayers to pay for the Greens’ election campaigns and vice-versa. As Thomas Jefferson put it-

“To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors is sinful and tyrannical.”

Additionally, candidates outside the major parties will stand less of a chance of raising enough money to compete. Bans on political donations undermine freedom of conscience and empower the political establishment at the expense of independents and minor parties.

Make no mistake: the special interests targeted by these laws are being silenced. They are being treated as guilty without being given the opportunity to put their case to the public during election season. Yet even this supposed rogues’ gallery of special interests can benefit us. The wealthy have lifted millions out of poverty: look to how the invention of cars has brought affordable transportation to billions of people. Property developers construct dwellings that increase housing affordability and reduce homelessness. As for the liquor, gaming and tobacco industries, they allow people to legally enjoy themselves. As long as they are legal, organised criminal gangs do not operate these industries. We are all safer for it. That’s not to suggest that special interests always benefit us–far from it. But they deserve the right to have their say.

What’s more, the fact that some people can make greater contributions to public life, whether financial or not, is no argument for restricting freedom of expression. We all have different skills and abilities. It is impossible for every individual to have an equal opportunity of contributing to the political discourse, and no law can change that or bring about a state of “perfect equality.” This is not to suggest that it would be desirable to do so. Calls for “equality” in politics strike me as a call for boring uniformity in the political arena.

Special interests will always run politics. The only question is which special interests should predominate. If everyone can donate freely, a wider array of competing special interests can hold politicians to account. If not, more power will be concentrated in the hands of politicians and bureaucrats–at our expense.

[1] See McLoy v New South Wales [2015] HCA 34; Election Funding and Expenditure Act 1981 (NSW), Division 2A, 4A and s96E.

[2]  It should be noted that the implied right of political communication may not be a constitutional right as such. Unlike the American Constitution, our Constitution is largely silent on civil rights. For a good discussion of the historical context of the Australian Constitution, freely available online, see e.g. Chief Justice Robert French, Protecting Human Rights Without a Bill of Rights, 26 January 2010: http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj26jan10.pdf

[3] For example, it is rightly illegal to verbally threaten other people with immediate acts of violence. Such threats constitute assault. See further Tuberville v Savage [1669] EWHC KB J25. A lay summary is available at https://en.wikipedia.org/wiki/Tuberville_v_Savage

 

Vladimir Vinokurov is a solicitor and a deputy Victorian State director of the Australian Taxpayers’ Alliance. The views expressed here are his own.

Vladimir Vinokurov is a solicitor and a deputy Victorian State director of the Australian Taxpayers’ Alliance. The views expressed here are his own.

One thought on “The High Court has it wrong: banning political donations undermines free speech

  1. Good article Zeev. I truly think it is bizarre how the court can OK some businesses making donations but not others. Also placing a cap on donations. If some famous personality did voluntary ads for a political party that endorsement would be worth tens or thousands if not more, but some poor schmuck, who has an equal vote, can only donate five grand.

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