The Electoral Act: the Case for Reform

What is the Electoral Act?

The Electoral Act 1997 (as amended) (‘the Act’) is an important piece of legislation which helps to uphold the integrity of elections by severely limiting the size and sources of donations to election candidates and political parties and requiring donations to be transparent. The Act prohibits election candidates and political parties from accepting:

• Donations from foreign sources
• Anonymous donations of more than €100
• Cash donations of more than €200
• Donations of more than €2,500 from one source

What is the problem?

Since 2001, the Act has applied these same restrictions to all donations made to “third parties” for “political purposes”. A “third party” is anyone other than an election candidate or political party.

The ICCL does not take issue with the Oireachtas’ decision to subject civil society organisations (CSOs) to funding restrictions during an election or referendum period. The ICCL is also in favour of transparency regarding donations to CSOs in general. However, the ICCL is extremely concerned about the impact that the Act’s broad definition of “political purposes” is having on the work of CSOs in Ireland outside of election and referendum periods.

The Standards in Public Office Commission (SIPOC) has begun to enforce the Act’s funding restrictions in relation to the work of CSOs generally, i.e. even if not within an election or referendum period. This is despite SIPOC previously warning the Government that the Act’s wording was at risk of hampering the ability of all kinds of civil society organisations to continue their legitimate activities.ⁱ

On its face, the definition of “political purposes” under the Act is capable of catching almost all advocacy work that CSOs in Ireland engage in.

“Political purposes” are defined in section 22(2)(aa) of the Act as:

1. (I) to promote or oppose, directly or indirectly, the interests of a political party, a political group, a member of either House of the Oireachtas or a representative in the European Parliament, or

(II) to present, directly or indirectly, the policies or a particular policy of a political party, a political group, a member of either House of the Oireachtas, a representative in the European Parliament or a third party, or

(III) to present, directly or indirectly, the comments of a political party, a political group, a member of either House of the Oireachtas, a representative in the European Parliament or a third party with regard to the policy or policies of another political party, political group, a member of either House of the Oireachtas, representative in the European Parliament, third party or candidate at an election or referendum or otherwise, or

(IV) to promote or oppose, directly or indirectly, the interests of a third party in connection with the conduct or management of any campaign conducted with a view to promoting or procuring a particular outcome in relation to a policy or policies or functions of the Government or any public authority;

2. to promote or oppose, directly or indirectly, the election of a candidate at a Dáil, Seanad or European election or to solicit votes for or against a candidate or to present the policies or a particular policy of a candidate or the views of a candidate on any matter connected with the election or the comments of a candidate with regard to the policy or policies of a political party or a political group or of another candidate at the election or otherwise;

3. otherwise to influence the outcome of the election or a referendum or campaign referred to in paragraph (i)(IV) of this definition

On the face of it, the Act’s wording bans every group of citizens from raising significant amounts of money in order to advocate for a particular policy or to criticise the activities of the government or any public authority or official. Contravention of the funding rules in the Act is a criminal offence carrying serious financial penalties and the possibility of imprisonment for up to three years.

Several CSOs in Ireland have already felt the effects of SIPOC’s strict interpretation of the Act. Meanwhile, because the Act only applies to donations, companies and individuals who can afford to pay for their own advocacy and do not need to raise funds are allowed to engage with the political system as much as they like.

The Act is completely at odds with Irish foreign policy. Irish Aid’s Civil Society Programme Funding stream specifically includes the area of “Governance”, which Irish Aid describes as “empowering poor and marginalised groups to influence decisions that affect them whether at local, regional or national levels”.ⁱⁱ At the United Nations Human Rights Council, Ireland recently led the drafting and adoption of a Resolution championing civil society space (see DFA press release here).

What needs to change?

• The Electoral Act 1997 (as amended) needs to be further amended in order to remove the donation restrictions on civil society organisations engaging in advocacy outside of elections and referendums.
• The question of transparency of funding is a separate matter – and initiatives such as the proposed Online Advertising and Social Media (Transparency) Bill 2017 are welcome measures.

Is change possible?

Yes. The ICCL does not believe that the Oireachtas intended to choke civil society when it amended the Electoral Act in 2001. Amendment of the relevant sections of the Electoral Act could be effected by a simple amending bill, or as a part of a wider reforming Bill.

Sign the petition for change here: https://action.uplift.ie/campaigns/284