Comparing third party policy frameworks: Regulating third party electoral finance in Canada and the United Kingdom

Abstract

Deciding how to regulate money during elections is a critical policy choice faced by every democracy. Over the last two decades, both the United Kingdom and Canada have implemented substantial revisions to their electoral laws, including policy measures designed to regulate third party spending. Despite similar policy objectives, the countries’ approaches to regulation differ, leaving the potential for significant variation in third party spending outcomes. These differences between countries, with otherwise very similar policy goals and systems of government, provide a unique opportunity to build and test a comparative policy evaluation framework for third party campaign spending. By examining these differences and similarities, this article builds a framework for election policy evaluation that can be adapted to serve as a template for future policy evaluation, facilitating comparative research.

Keywords

Administration and democracy electoral regulation evaluation performance audit policymaking public finance

How a country regulates its elections is at its core an expression of its democratic values. While overarching principles, such as freedom of expression and equality of participation, are often recognized in bills of rights or constitutions, interpretations of these values must ultimately be translated into narrowly cast policies that regulate how different parties can participate in the electoral process. Consequently, once a regulatory regime is designed and implemented, policymakers are faced with what is arguably an equally important challenge: are regulations meeting the principles and objectives undergirding the regulations themselves?

Despite the interpretive nature of some of these values, assessing the successes and failures of these policies is an empirical question. A country’s election campaign regime is made up of many components: the length of the election period, eligible participants, how much spending is allowed and by whom, the types of state subsidies available (if any), the types of spending and contributions that need to be disclosed and reported, and what penalties will be applied if regulations are violated, among other features. Understanding the overall performance of an election regime requires reflecting on the utility of these components and revising them when they fall short of their intended outputs. While there is a developed body of literature that considers the motivations behind the design of election regulations (Katz and Mair, 1995; Scarrow, 2004), as well the outcomes stemming from these regulations (Boatright, 2011; Casal Bértoa et al., 2014; Ewing et al., 2012; Farrell and Schmitt-Beck, 2008; Norris and Abel van Es, 2016; Young and Jansen, 2011), far less attention has been paid to the responsiveness of the regulatory frameworks themselves (though see Clark, 2015).

Among those regulated are third party (often called non-party) actors – individuals or groups that are not political parties or candidates, but who participate in an election campaign by advertising for or against candidates or issues of concern. In Canada and the United Kingdom, the regulations governing third party behaviour have in the past two decades undergone significant changes. However, we have little sense of whether the accompanying changes in the regulatory frameworks that govern election campaigns in these countries are meeting their stated objectives.

Accordingly, the purpose of this paper is two-fold: (1) to build an evaluation framework for election campaign policy that can serve as a template to facilitate future comparative research; and (2) to employ this framework to evaluate the administrative strengths and weaknesses of third party regulations in Canada and the UK from 2000 to 2016. To meet these objectives, we begin by explaining the role of third parties in election campaigns, followed by a comparative analysis of policy development and change. Finally, we discuss the utility of a policy evaluation approach and set out a new framework to evaluate third party regulations in Canada and the UK. In our evaluation we find that both countries’ policy goals are met to varying degrees, but with opportunities to improve upon adherence to administrative and regulatory requirements, particularly in light of the rise of new communication technologies and techniques that now dominate campaigns.

The role of third parties in election campaigns

The size and organization of third parties can vary significantly, from a few citizens looking to raise awareness on a certain issue in their local riding, to a well-organized union undertaking a highly visible national campaign intended to influence election outcomes. While third parties will come in different sizes and hold different opinions on policy issues, they are united in their desire to assert their views during the campaign, thereby having the potential to influence voter choice. This is an important point to consider when thinking about the design of election regulations; third parties are themselves not looking to be elected, however, they share the same campaign space as political parties. Third parties’ presence in campaigns means that regulations are expected to strike a delicate balance. Election policies that ban or severely limit the participation of third parties run the risk of suppressing the voices and views of those not represented in political parties, while third parties unencumbered by spending caps may effectively overawe the voices of political parties and candidates, as well as other third parties without the financial means to undertake comparable campaigns. Thus, even in countries like Canada and the UK, where spending limits for third parties are relatively modest, their regulation is nonetheless critical as a part of the interconnected web that makes up an election regime.

The goals of third party regulations can be triangulated through an assessment of electoral legislation, legislative debates and announcements made by regulators. Both Canada and the United Kingdom have reformed their election regulations in the last two decades (Crandall and Lawlor, 2014; Feasby, 2003). The selection of these two cases for comparison is motivated not only by the similarities in their electoral policy framework and party systems, but also owing to the fact that both countries have turned to each other during times of policy reform to engage in policy learning (Interview, Elections Canada; Interview UK Electoral Commission). Nonetheless, the overall volume of spending by third parties varies widely between the two countries, making this comparison a clear-cut case of most-similar systems design with variation on the dependent variable. To establish each country’s policy objectives, we briefly describe regulations, followed by an explanation of the rationale behind their design.

The United Kingdom

The Political Parties, Elections and Referendums Act 2000 (PPERA) is the key piece of legislation regulating national elections in the UK. Coming into force in February 2001, the act dramatically transformed the way third parties are regulated (Clift and Fisher, 2004). Whereas no spending limits were placed on third parties undertaking nationally focused campaigning prior to the PPERA, the act introduced a spending cap of £793,500 in England, £108,000 in Scotland, £60,000 in Wales, and £27,000 in Northern Ireland over the regulated campaign period for general elections (typically 365 days). By contrast, third party spending at the local level was modestly increased with the PPERA from £5 per constituency (essentially a ban) to £500. The act also introduced registration and reporting regulations for third parties, with any third party planning to spend more than £10,000 in the UK or £5,000 in one of the devolved parliamentary units required to register with and fully disclose expenditures and donors to the UK Electoral Commission.¹

Spending limits and reporting requirements for third parties underwent a second round of reforms with the passage of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act in January 2014. With these changes, the spending threshold for registering as a third party doubled to £20,000 in England and £10,000 in each of the devolved parliamentary units. By contrast, the amount of money third parties are permitted to spend in national campaigns decreased by 60%. For England, the £793,500 limit introduced with the PPERA was reduced to £319,800 for general advertising during the regulated campaign period (the equivalent of 2% of a political party’s maximum campaign expenditure limit), amounting to a spending cap of £9,750 per constituency.

The 2014 act also introduced regulations for party-targeted advertising.² The spending limits for this type of advertising vary depending on whether a registered political party has authorised a third party to incur spending where the party will be the target. If agreed to, the third party may spend up to the limit authorised by the political party, without exceeding the national or constituency spending limits. Importantly, any spending authorized by the political party also counts towards the political party’s spending limit. If the targeted party refuses to authorise a third party’s campaign, the spending limit is reduced significantly to £31,980 in England and less than £4,000 in the devolved parliamentary units.

Policy motivations for the 2000 and 2014 changes are clearly identified in the reporting materials surrounding the legislation. The starting premise for third party regulations is that third parties should not play a dominant, nor equal, role to political parties in elections (Committee on Standards in Public Life, 1998: 133). A modest spending limit placed on third parties relative to political parties is the most obvious way in which this objective is achieved. Transparency also appears to be a dominant motivation for current electoral regulations and is intended to help stem the risk that the public’s confidence in democratic institutions could be undermined by its absence (Phillips, 2013). This is not especially surprising given that the reforms implemented with the PPERA were in reaction to the spending scandals of the 1997 British national election, which brought attention to the opaqueness of political parties’ election finances (Ewing, 2007). For election regulations, transparency is primarily concerned with the public documentation of spending and donations. Whereas prior to the PPERA, third parties faced neither spending limits nor reporting obligations, third parties now operate with both. Notably, the 2014 act looked to further strengthen transparency by requiring third parties to publish and record more information about their spending, donations, accounts and board members, including a requirement to submit quarterly and weekly donation reports during the regulated election campaign period (UK Parliament, 2013). In a similar way, the reporting requirements for third parties are also designed to foster accountability.

Effectiveness and efficiency are administrative principles that also form a part of the regulatory measures in place since 2000. In the case of third party spending, these respectively refer to the accessibility and reasonableness of regulatory tools for those who are required to comply and the ability of the policy to regulate spending in a manner consistent with its outlined goals. With the implementation of the PPERA, new reporting requirements aimed to increase the number and consistency of statutory returns, allowing for better monitoring and enhanced compliance (The Electoral Commission, 2006: 6). Lest effectiveness and efficiency be equated exclusively with increases to administrative devices, in 2013, the Commission advocated for a reduction of administrative burdens on third parties that only spend moderately, requesting, ‘more proportionate [requirements] by requiring less information from those who register with us but then spend under the registration threshold’ (The Electoral Commission, 2013: 60). While these represent only a small subset of regulations designed to enhance efficiency and effectiveness, both principles are evident in the documentation governing third party behaviour.

Canada

Efforts to regulate third party spending in Canada began in the 1970s; however, the current election regime is overwhelmingly a product of the Canada Elections Act (CEA), 2000. Third party regulations in the CEA were introduced to fill a policy void created by earlier court decisions that had found regulations restricting third party spending to be an unreasonable limit on freedom of expressions under the Canadian Charter of Rights and Freedoms (Lawlor and Crandall, 2011). The CEA introduced regulations that place a maximum spending limit of $150,000 for a national third party campaign, of which no more than $3,000 can be spent in an electoral riding to promote or oppose a candidate. These limits are adjusted for inflation each year, and since 2014 are also adjusted if the regulated campaign period exceeds the typical 37 days (as of 2016: $208,200 nationally and $4,164 per constituency). This amounts to less than 1% of a political party’s campaign expenditure limit. A third party must register with Elections Canada³ if it intends to spend $500 or more and must file an election expense report if this threshold is met or exceeded.

Thus, while spending limits and reporting requirements are different in Canada, like the UK, they similarly seek to facilitate an election environment in which political parties are the dominant actors (Boudria, 25 February 2000: 4023). This interest in restricting the influence of third parties can be situated within the larger policy concerns that fuelled the CEA: mainly that by 2000 corporate and union contributions to political parties amounted to 51% of party fundraising in Canada (Cross, 2004: 147). Corporate and union donations to parties and candidates were banned altogether in 2006 by the Federal Accountability Act, thus making third party advertising the only available means for such groups to formally participate in elections.

Understanding the policy objectives of the CEA is aided by a review of the statements made by the government minister responsible for the bill, as well as statements by Elections Canada on characteristics of the electoral regime. The sponsoring minister of the CEA bill, Government House Leader Don Boudria, repeatedly noted that the CEA was based on three essential principles: equity, transparency, and accessibility (Boudria, 24 November 1999). Similarly, Elections Canada refers to participation, fairness, transparency and reduction of undue influence as the main characteristics of Canada’s electoral democracy (Elections Canada, 2015b). Like in the UK, disclosure of spending and donations stand at the heart of how regulations address the principle of transparency. Similarly, the reporting requirements for third parties are designed to foster accountability, with the failure to follow elections regulations resulting in a penalty.

This review of Canada’s and the UK’s third party regulations reveals a number of similarities in their policy goals. First, both share a starting premise that third parties should not play a dominant, nor equal, role to political parties. Regulations in both countries also place a strong emphasis on transparency – that both spending and donations should be publicly recorded. For the successful administration of these policies by their respective electoral commissions, a number of shared principles can also be identified: accountability, effectiveness and efficiency. However, the specifics of how these principles are translated into specific policies differ between the two cases and consequently should result in different policy outcomes.

A policy evaluation approach to third party spending regulations

As noted by Baldwin et al. (2012: 25), ‘To decide whether a system of regulation is good, acceptable, or in need of reform it is necessary to be clear about the benchmarks that are relevant to such an evaluation.’ At its core, the comparative policy evaluation undertaken here is interested in analysing these benchmarks in order to facilitate effective evidence-based public policy. Ongoing policy evaluation, both internally by the regulatory bodies themselves and externally by neutral or third party actors, can serve as a preventative measure against external criticism, as well as a tool for policy refinement (Levi-Faur, 2011). This proactive approach seems especially helpful for political finance regulations – where design and redesign are often in reaction to market failure or interest group demands (Abel van Es, 2016).

Admittedly, this type of performance monitoring is limited insofar as it ‘seeks primarily to assess the outcomes of a program without an in-depth examination of the program’s effects on those outcomes’ (Hatry et al., 2015: 673). However, when this is coupled with a more robust policy evaluation that permits outcomes to be tied back to policy decisions, as is undertaken here, these interim policy monitoring activities can serve as an evidence-based approach to providing policy feedback and fostering instrumental learning based on rational policy making (Radaelli, 2009).

Another important point to consider is that an evidence-based policy evaluation cannot speak to the normative value of the policy itself, merely to whether the objectives of the policy are being achieved. Relatedly, and as the literature in performance-based regulation makes clear, identifying relevant measures of performance can be much more difficult than stating performance objectives (Coglianese and Lazer, 2003; May, 2011). As Triantafillou points out, translating goals such as fairness, equality or trust ‘may not be impossible, but in the process of doing so they are likely to take a much narrower and perhaps even different meaning than intended’ (Triantafillou, 2015: 175). Thus, while the criteria we employ are commonly found in the literature on policy evaluation, their operationalization are unique to the policy context analyzed here (e.g. Brown et al., 2006; Ehrhardt et al., 2007).

Methods

To help address these challenges, the policy evaluation literature points to the necessity of triangulation from multiple perspectives and data sources to avoid bias or incomplete research to the greatest extent possible (Rogers and Goodrick, 2015). In this analysis, we employ a number of data sources, including the extant research in the field, legislative, administrative and regulatory documentation, published financial and administrative data, and publically stated motives in policy documentation, media reports and public speeches. Further, we also consider cases that fracture the rules or are sanctioned for exceeding the stated regulations in order to gain insight into limitations or shortcomings of a policy. These types of unintended consequences not only shed light on policy weaknesses and areas for improvement, but they signal how policies may suffer from problems of perceived legitimacy by stakeholders.

To capture these types of monitoring and evaluation techniques, we use a causal process tracing (CPT) approach to systematically compare and assess third party spending policies instituted by the Canadian and UK governments from 2000 to 2016. The CPT approach has emerged as a useful tool in evaluating comparative small-N case studies, particularly because of its ability to link policy actor motivations and policy goals to outcomes in the short and medium terms (Collier et al., 2010; George and Bennett, 2005). CPT is a flexible tool, applicable across fields, and consequently is well suited to evaluating complex political outcomes such as policies that are derived from a number of actor networks and outside stakeholders who operate under the constraints of existing legislation (Kay and Baker, 2015). This assessment has particular utility when investigating third party regulation as it is an area that has been influenced by ongoing regulatory change by legislators, but has also experienced windows of policy change on account of non-governmental actors’ legal challenges of third party regulations in the court system. Accordingly, the documents under investigation here represent a wide variety of data sources covering multiple actors’ viewpoints. Textual sources are listed in Table 1 and form the first pillar of our data analysis.

Table 1.

Data sources

	Canada	UK
Legislative Documentation	1999 35th Report from the House of Commons Committee on Procedure and Evidence 1999 House of Commons debate on Bill C-2 (36th Parl., Session 1, Hansard) 1999 House of Commons Committee on Procedure and Evidence study of Bill C-2 (36th Parl., Session 1, committee transcripts) 2000 Canada Elections Act: Motivations and Principles for Reform 2000 Bill C-2, The Canada Elections Act 2003 Bill C-24, An Act to Amend the Canada Elections Act and the Income Tax Act 2006 Bill C-2, The Federal Accountability Act 2014 Bill C-23, The Fair Elections Act	2000 UK Political Parties, Elections and Referendums Act 2005 UKPGE Campaign Expenditure Report 2008 UK White Paper on Party Finance and Expenditures in the UK: The Government’s Proposals 2008 Lord Chancellor and Secretary of State for Justice: Party finance and expenditure in the United Kingdom 2010 UKPGE Campaign Expenditure Report 2011 Electoral Commission Enforcement Policy (March) 2011 Committee on Standards in Public Life: Political Party Finance: Ending the Big Donor Culture 2012 House of Commons Political and Constitutional Reform Committee: Party Financing 2013 A Regulatory Review of the UK’s Party and Election Finance Laws 2013 Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
Financial Documentation	Third party financial spending reports, 2004–2015	Third party financial spending reports, 2005–2015
Administrative Documentation	Election advertising handbook for Third Parties, Financial Agents and Auditors (available online – (Elections Canada) ‘Tools for Third Parties’ (available online – Elections Canada) ‘The Electoral System of Canada’ (available online – Elections Canada)	Non-party campaign spending and donations at elections Guidelines (available online – UK Electoral Commission)
Interviews	Third party interviews Regulatory actor interviews	Third party interviews Regulatory actor interviews

UKPGE: UK Parliamentary General Election.

The practical methodological application of CPT takes the form of an evaluation matrix that lists overarching policy goals (sourced from the documentation listed in Table 1), alongside indicators and measurements, developed by the authors in consultation with the policy documentation and through interviews with each country’s regulatory bodies. Evaluation matrixes are tools for objectively and systematically enumerating and evaluating a cross-section of goals against select criteria. In keeping with the CPT approach, we engaged in a coding exercise to extract core themes from these documents. We identified four overarching goals that are consistently recognized both in manifest content (e.g. from legislators, regulators) and in supporting documentation; they are:

Efficiency – Clarity of regulations and ability of third parties to follow regulations with reasonable effort;

Effectiveness – The ability of the policy to regulate spending in a manner consistent with its outlined goals;

Accountability – The ability of the monitoring agent to publicly report on its work;

Transparency – The clear identification of financial and non-financial contributions to the campaign by third party actors.

Since these criteria are too broad to capture in any intersubjective coding scheme, we jointly developed a set of specific indicators and sources of measurement (see Table 2) in order to ensure transparency and generalizability of our results. After jointly coding and discussing a test document, each author coded one half of the documents according to the criteria identified in Table 2. Regulatory documents are meant to set out specific guidelines to be followed, and in this sense, demand a degree of clarity which permits the coding of manifest content. However, the density of regulatory language and the demand for familiarity with the policy language associated with these documents required a degree of latent content analysis as well. Our coding exercise therefore consisted of a two-phase process: first, documents were manually coded for explicit or manifest references to specific indicators in the documents (i.e. through key word searches); second, we re-read the documents for latent references to the indicators in question. Results, including questionable coding or potential inconsistencies, were discussed at the end. After deliberation on these, both authors came to an agreement on the treatment of the text.

Table 2.

Policy evaluation matrix

	Policy goal	Indicator(s)	Measurement (Source)
Monitoring	Efficiency	Is two-way communication between third parties and regulators possible? Are reporting mechanisms user friendly? Are claims processed in a timely fashion?	• Third parties’ understandings of the process (interviews, public statements) • Available regulatory guidelines (publically available third party handbooks/guideline documents) • Electoral commissions’ reactions to reported inefficiencies (electoral commission reports) • Trouble-shooting or FAQ resources (electoral commission websites/ phone-in resources)
	Effectiveness	Are violations pursued / rules enforced? Are there modes of monitoring participation during the campaign?	• Electoral commissions’ disciplinary actions (electoral commission reports) • Public availability of interim reports (electoral commission reports)
	Accountability	Is the monitoring agent required to publicly report on its performance?	• Legislative requirements by overseeing body (legislation and electoral commission reports)
	Transparency	Are rules/procedures clearly laid out? Is the reporting process clearly documented? Are reports available to the public?	• Public availability of financial reports (electoral commissions) • Regulatory guidelines for third parties (published third party handbooks/guideline documents) • Availability of publically available financial reports and reports of violations (electoral commissions)

For the policy evaluations undertaken using these data, we limit our focus to the monitoring agents and the third party regulations they are charged with enforcing. However, the impact that third parties have on these regulations as participants in that regime is not neglected. To this end, we incorporate data obtained through interviews with third parties and regulatory bodies charged with implementing and monitoring third party actions. Our data consist of nine interviews with third parties in Canada and the UK between February and July of 2016. Our third party interviewees were selected from the results of a survey conducted (results not shown here) of all registered third parties on each country’s electoral commission website who participated in national or sub-national (in Canada) elections from 2004 until 2015. Using an approach similar to Gray and Jones (2016), we researched each interviewee’s public position on campaign participation and finance where possible and tailored our general set of questions to understand the particular motives of the third party and their knowledge of campaign finance policies during the interview. Interviews took a semi-structured format and were conducted in-person. Each interview was recorded with the permission of the interviewee and transcribed. Analyses proceed from a systematic coding and analysis of these transcripts (see below) and are based on the principle that information would be anonymized. Two additional interviews were conducted with representatives from the UK Electoral Commission and Elections Canada. A final interview was conducted with a UK legislator who is an advocate for the reform of third party regulations. Thus, our total body of interview data incorporates 13 interviews across actor types. To protect the anonymity of third parties, interviewees are referred to as ‘UK Interview’ or ‘Canada Interview’ and numbered sequentially.

Drawing from our document and interview analysis, evaluation of these policy goals is undertaken by answering the following questions: First, do the policy goals appear to be fulfilled based on the intended goals, using the specified measurements? And second, what are the comparative strengths and weaknesses of each country’s campaign finance regulation goals? These questions not only address the overarching issues concerning the successes or failures of these policies, but also situate the findings in the broader context of campaign spending regulations. We develop a quadripartite criterion as a way to account for the degree to which policy outcomes adhere to goals as stated by the legislative and regulatory documentation and the observable adherence to performance standards by third parties. These sorts of performance standards are useful in the study of regulatory behaviour precisely because they provide a reference for how policy actors achieve outcomes through process-based or prescriptive-based approaches (May, 2011).

Because there are varying degrees of adherence to the performance standards set out in the documentation and by legislators and regulators, we advance the following four levels of adherence: meets expectations (no observed weaknesses); meets expectations (some observed weaknesses on the part of the legislation/regulation); meets expectations (some observed weaknesses in the compliance of actors); does not meet expectations. Note that this does not represent a perfect ordinal scale as the second and third levels refer to similar levels of adherence, but with different motivations for why policy outcomes fail to meet expectations.

Results: Evaluating policy outcomes

Canada and the UK hold a number of comparable policy objectives around the regulation of third party spending. Using the policy evaluation matrix set out in Table 2, this section provides an analysis of whether the monitoring mechanisms employed in Canada and the UK are contributing to the achievement of these objectives.

Efficiency

To address the efficiency of third party regulations, we consider three separate indicators: the ability for two-way communication to take place between third parties and regulators, the user-friendliness of reporting mechanisms, and the timeliness of public reporting by electoral commissions. Taken together, these three indicators represent how functional the relationship is between those doing the regulating (electoral commissions) and those being regulated (third parties), with a specific eye to the speed and accuracy with which claims are received, processed, and made public.

Mechanisms for communications between regulators and third parties are made very clear in both Canada and the UK. When asked, both countries’ regulators reported having dedicated staff and an allotment of time to process these requests during the writ period. Similarly, third party interviewees who were asked about the timeliness and quality of responses to questions reported that their country’s electoral commission facilitated a response turnaround time of a few business days and that answers appropriately and clearly responded to inquiries (UK Interviews 1 and 2). This suggests that, with respect to efficiency in two-way communications, the policy regimes in both Canada and UK meet expectations with no observed weaknesses.

The second dimension of regulatory efficiency deals with the actual tools of reporting. It could be argued that third party spending regulations are more straightforward in Canada than the UK and that this is reflected in their reporting mechanisms. While Canada has two types of third party spending limits imposed during federal campaigns (constituency-level and national issue-based expenditures), since the 2014 act, the UK has four: local (does not require reporting); national, issue-focused (with spending equally distributed between ridings); national, party-focused with endorsement; and national, party-focused without endorsement. Third parties in the UK are also required to submit reports throughout the regulated election period and must report spending in greater detail than their Canadian counterparts. Despite the greater complexity of reporting requirements in the UK, the reporting templates offered by the Electoral Commission are designed to simplify these reporting standards. These include fillable Excel files that identify missing data or overspending. Third parties are able to both register and submit returns online at the Electoral Commission’s website. When asked about their experiences with the Electoral Commission’s reporting mechanisms, one third party responded, ‘I have nothing but praise for the Electoral Commission. User friendly, easy, non-bureaucratic, basic questions, simple forms, a guy who you could call for help … painless.’ (UK Interview 1)

Elections Canada also offers an electronic template for third party spending reports, which can be either mailed or emailed to Elections Canada. While reporting requirements are outlined by Elections Canada, a review of the over 300 registered parties from the 2004 to 2015 federal elections reveals inconsistencies in how third parties are reporting their expenses. These irregularities range from simple mathematical errors to the reporting of ineligible expenses. This suggests that some third parties may be misunderstanding regulations or that they are purposefully over-reporting, perhaps to avoid the suggestion of impropriety. The resulting inconsistencies across reported expenditures suggest a need for additional oversight in the assessment of reporting from Elections Canada or enhanced clarity around regulations from the outset. Comparatively, the UK Electoral Commission meets expectations without any observed weaknesses.

The final efficiency indicator looks at whether third party reports were processed and made publicly available in a timely fashion. In both Canada and the UK, claims appear to be processed within weeks of submission, with no observed complaints about the timing of reporting or the clarity of the findings. In both cases, all reports are placed online and reviewed by the respective electoral commission. We received no indication from either electoral commission that they had to pursue an abundance of outstanding claims. Only in a small handful of cases did either electoral commission report having to follow up with known third parties for non-compliance. The dates of the report submissions also suggest that timeliness on the part of third parties submitting reports was closely adhered to. Thus, for both Canada and UK, expectations are met both in terms of clarity and outcomes with no observed weaknesses.

Effectiveness

Evaluating the effectiveness of election regulations depends largely on two observable outputs: (1) that the regulations put in place achieve their key policy objectives; and (2) when violations of these regulations take place (obstructing policy objectives), they are pursued in a way that enforces the rules in order to maintain the integrity of the election policy regime (for a comprehensive analysis of campaign finance law enforcement see Lochner and Cain, 2000). Thus, we investigate whether violations of third party regulations are pursued and whether there are ongoing methods of monitoring participation.

In Canada, Elections Canada has the authority to investigate alleged violations of third party regulations, but this is not a power that is proactively used. Investigations are only initiated when a complaint is brought to Elections Canada. Third parties are not actively monitored during the regulated election period. When asked about the potential for ongoing monitoring, representatives from Elections Canada commented on a general lack of resources to implement any meaningful campaign monitoring – particularly real-time monitoring of online activity.

When investigations are prompted, they are conducted by a separate body, the Commissioner of Canada Elections. The Commissioner’s office lists infractions and sentences dating back to 1992 on its website. All criminal violations are handled by the police. From 2004 to May 2016, only six offences have been reported (no offences were reported for the 2008 and 2011 elections), all of which were minor and resulted in fines (Commissioner of Canada Elections, 2016). The most common offence was failure to identify the sponsoring third party on advertising materials. Officials at Elections Canada indicate that regulations are generally closely followed and that there is little concern of major regulation violations. In fact, according to those third parties interviewed, there may be a greater tendency toward over-reporting than underreporting, as many third parties are nervous about infringing the rules and find it ‘best to be on the safe side’ (Canadian Interview 2). Thus, we suggest that the regulatory approach in Canada meets expectations with some weaknesses observed in the capacity of Elections Canada to engage in ongoing monitoring and possible preventative actions.

In the UK, enforcement issues can be observed early on in the Electoral Commission’s mandate. Under the PPERA, the Commission is authorised to investigate and apply penalties to third parties that violate election regulations. Because third parties are required to register with the Commission if they anticipate spending more than the registration threshold, the most common violation appears to be late registration. Since the 2010 election, civil violations in the UK have been handled by the Electoral Commission, which, according to commentary from representatives from the Commission, represents a welcome enhancement to their power and enables the application of civil sanctions for regulatory breaches (The Electoral Commission, 2013: 8). Violations or instances of electoral fraud are posted directly on the Commission’s website with a report produced after each election. Criminal violations are pursued by the police. In a 2013 report, the Electoral Commission notes that such violations were not pursued in the past largely because there was no civil sanction available for late registration and little value in taking action when third parties ultimately register and therefore report their spending (The Electoral Commission, 2013: 59). This issue was addressed in the 2014 act, which allows the Electoral Commission to enforce this rule moving forward. Additionally, with the 2014 act, third parties must now provide statements of account during the regulated election period, which means that third party spending is monitored during the campaign itself, rather than three or six months after election day.

This approach was substantiated in our interview with members of the Electoral Commission, who report having staff in place to work on campaign monitoring for both political parties and third parties. Despite an admission that, at times, they are forced to prioritise attention to certain actors over others for reasons of administrative efficiency, they do report having the capacity to maintain an ongoing monitoring presence for third parties. However, due to a policy gap, this monitoring does not extend to political candidates. Therefore, we suggest that the UK system meets expectations with no weaknesses as it relates to the monitoring and enforcement of third parties, but in monitoring the activities of other actors in the campaign environment, there is room for legislative enhancement to strengthen the Commission’s powers.

Accountability

In both Canada and the UK monitoring agents are required to report on their performance to some degree. In Canada, Sections 533 to 535 of the CEA set out that Elections Canada must submit reports following every general election or by-election. While the wording of these sections does not explicitly require Elections Canada to report on its performance, there are provisions that offer this opportunity and in practice it is something that Elections Canada has done on a regular basis. That the governing legislation appears to leave performance review at the discretion of the monitoring agency is a weakness in accountability design, though few, if any, have pointed to this as an issue in practice. Election Canada’s reports are submitted to the Speaker of the House of Commons and are therefore publically available and have been posted on Elections Canada’s website going back to 1994.

Like Elections Canada, the Electoral Commission is required to prepare and publish reports after elections and by-elections on the administration of the election (Section 5, PPERA). All reports published by the Electoral Commission are available on its website. Here again, the Electoral Commission is provided flexibility in how such reports should be managed and can report, ‘in such manner as the Commission may determine’ (Section 5(1)). The Electoral Commission appears to have opted to review its performance as part of this reporting. For example, its report on the 2015 general election includes a section that provides an analysis of survey data concerning voters’ experience and their confidence in the elections process. The same report also analyses the changes to third party campaigning rules introduced by the 2014 act, the common challenges that came about in its administration, and an explanation of the Electoral Commission’s ongoing concerns regarding regulation and enforcement. Its campaign spending reports also have a dedicated section that outline issues for the regulatory regime, highlighting possible policy weaknesses. Compared to Elections Canada, the Electoral Commission’s reporting on its own performance appears more systematic and comprehensive, suggesting that it meets expectations with no observed weaknesses. Elections Canada, on the other hand, has a comparable legislative mandate to report their activities to the public, but its reporting in practice is less comprehensive suggesting that the policy design around the regulator can be improved.

Transparency

In articulating its overarching goals, Elections Canada declares the need for ‘transparency, fairness, and reduction of undue influence’ in the activities of third parties. To facilitate transparency in reporting, the regulator clearly lays out rules and procedures in a detailed Handbook for Third Parties, Financial Agents and Auditors, which is available on its website. Furthermore, Elections Canada provides a detailed definition of what constitutes advertising: ‘An election advertising expense is an expense incurred in relation to: the production of an election advertising message, and the acquisition of the means of transmission to the public of an election advertising message’ (Elections Canada, 2015a: 20). There is ample grey space around web advertising, although social media, email advertisement or website content are clearly stated to not constitute election advertising (Elections Canada, 2015a: 19). According to Elections Canada, it is outside of their current mandate to regulate social media; rather it is solely within parliament’s purview to adapt third party legislation to the contemporary social media and digital communication context. Similarly, the UK Electoral Commission also provides a series of guidance documents for third parties and also makes available an automatic email notification to supply third parties with up-to-date guidance. The Commission’s ‘Overview of regulated non-party campaigning’ clearly outlines what campaign activity is subject to third party regulations and sets out a two-step purpose and public test to determine whether campaign activity requires reporting.

Third parties in both countries have expressed both delight and concern over this ambiguity. In the case of several Canadian third parties, social media has become the most cost effective way to reach the greatest number of people. Others realize the advantage of the social media ‘loophole’ and took advantage of the ability to spend funds on ‘things that don’t have to show up on reports [like social media] because it’s not actually paid advertising’ (Canadian Interview 2). Yet, there appeared to be a fair amount of reflection on the double-edged sword of the broad acceptance of the unregulated presence of social media. As one respondent put it, ‘There is a strong argument for thinking about limiting TV and social media advertising and controlling election spending. There is something there that probably needs a bit more thinking through’ (UK Interview 2). Clarity around the regulation of social media clearly points to an area where both Canada and the UK have some observed weaknesses around the regulation of third party activity, as well as weaknesses around the adherence to the policy by third party actors. Though third parties are not violating the letter of the law, the lack of clarity around the regulation of digital communications has resulted in inadvertent over-reporting.

The guidelines listed above for both countries provide clear and detailed instructions for reporting. However, while the reports provided by the UK Electoral Commission indicate third parties either correctly reported their spending or that incorrect expenditures were reviewed prior to being posted online, as already noted, a number of Canadian third party spending reports showed a combination of underreporting, reporting of ineligible expenses, or reporting of expenses below the required threshold to report. While Elections Canada may consult with third parties that appear to have reported advertising expenses incorrectly, such discussions are not disclosed to the public, though amended reports may become available after the necessary corrections (Elections Canada Interview). Altogether, this suggests that some Canadian third parties find the documentation around the reporting process unclear, suggesting a weakness in the policy both from a regulatory perspective and in the compliance of actors (Canadian Interviews 1, 2, 3). Similarly, the availability of third party reports to the public is a matter of transparency. In both Canada and the UK, third party spending reports have been available to the public online since the early 2000s. In the case of Elections Canada, reports are available to download in PDF format, whereas the UK Electoral Commission makes spending reports available in database format with user-friendly query and filtering tools. The access provided by the UK Electoral Commission facilitates easier comparison with other party and candidate expenditures, which is an advantage to citizens or researchers who seek to analyze the total volume of spending during an election campaign.

Conclusion

The motivation for comparing these two countries’ electoral regimes around third parties was based on their similar systems design and the fact that their respective electoral commissions had engaged in mutual policy learning during the policy design phase. Thus, we expected structural similarities (which we found), but differences in application and therefore outcome (which were also evident). According to this evaluation of the regulations surrounding third parties in Canada and the UK, both regulatory frameworks appear to be operating reasonably well given their stated goals. While both countries demonstrate a few areas where practices and procedures could be sharpened, neither country’s electoral commission demonstrates any major shortcomings in their regulations or enforcement (see Table 3 for a summary). Even though third parties are viewed as secondary actors to parties and candidates during election campaigns, we see no evidence that third parties are under-regulated or ignored by election monitoring bodies. This is consistent with experts’ positive perceptions of the performances of these electoral authorities (Norris et al., 2016).

Table 3.

Evaluation summary

	Goal	Meets expectation (no observed weaknesses)	Meets expectations (some observed weaknesses on the part of the legislation/ regulation)	Meets expectations (some observed weaknesses in the compliance of actors)
Monitoring	Efficiency	Two-way communication (UK/Canada) User-friendly reporting (UK) Timely claims process (UK/Canada)	User-friendly reporting (Canada)
	Effectiveness	Enforcement and monitoring (UK)	Enforcement and monitoring (Canada)
	Accountability	Accountability of monitoring agency (UK)	Accountability of monitoring agency (Canada)
	Transparency	Clarity of reporting processes (UK) Availability of reports (UK)	Clarity of reporting processes (Canada) Availability of reports (Canada)	Clarity of rules for third parties (UK/Canada)

This study demonstrates two notable outcomes: the first is the relative strength of each country’s evolving third party regulatory regime. Often, policies are taken as static and success or effectiveness of the policy is automatically assumed or at least not interrogated. However, a policy evaluation can test these assumptions and highlight areas wherein a policy framework could be expanded upon or refined to better accomplish its stated goals. Furthermore, policy evaluations are flexible tools that can adapt to the agile nature of changing policy outcomes, even when regulators or legislators are not able to readdress the policy problem in a timely fashion. Policy evaluations can be (and in many cases ought to be) conducted by outside, non-partisan parties, and this practice can enhance the transparency of evaluations while reducing the potential for bias and depoliticising policy evaluation. In the case of third party policy, the participation levels and behaviours of third parties are likely to fluctuate across campaigns, and this variation underlines the importance of regular policy evaluation, through an approach similar to the one adopted here.

The second notable outcome, linked to the first, is the utility of a comparative policy evaluation approach when demonstrating a case for policy learning or adaptation across country contexts (Radaelli, 2009; Sanderson, 2002). The similarities between Canada’s and the UK’s approaches to regulating third parties indicate that they share common goals and norms around electoral integrity, which makes their evaluated successes and failures valuable to the growing and important literature on electoral integrity (Gauja, 2016; Norris, 2013). The importance of carefully monitoring electoral participation can hardly be understated in the contemporary climate of scepticism toward elected elites. We can thus look to policy evaluations across subareas of electoral policy to play a growing role as campaigns come under increased scrutiny by regulators and the public alike.

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: The authors gratefully acknowledge the funding support of the Canadian Social Sciences and Humanities Research Council (Grant 430-2015-00167).

Notes

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