Just as Easter arrives in supermarkets in late January, so election seasons come early these days. Clive Palmer is this year’s harbinger, bombarding us with his mass-texting and meme-generating app. His much-discussed campaign raises the question of how we should respond, subjectively and legislatively, to campaigning in the twenty-first century. How do we conceive of public space and within it political space?
Clive is treated as both marketing genius and buffoon. His United Australia Party is uniting Australians, we are told, in “infuriation” at his campaign techniques. Meanwhile, he is laughing all the way from the bank. His is a Wildean world, where there is only one thing worse than being talked about.
When media outlets comment on Palmer’s multimillion-dollar campaigning, they have mixed interests. If he spends on newspaper, radio and TV ads, commercial publishers and broadcasters will laugh all the way to their banks. The common lament, however, is that he exemplifies something inauthentic about modern advocacy — as if there were some golden age when politics was embodied in candidates’ doorknocking and public meetings.
When he began campaigning for this year’s election back in the middle of last year, Palmer used a set of nearly ubiquitous yellow billboards, an early twentieth-century technology if ever there were one. A handful of graffitists aside, few objected, though they are more of a blight than easily erasable text messages. This year he is bypassing old media altogether, to focus on social media and attempts at viral messaging.
But gut reactions to new campaigns and speculation about the motivations of their proponents can only take us so far. The debate needs to broaden in two quite different ways. One is to bring in the wider role of money, including the question of political equality and what that term may mean. Last Tuesday, no less an institution than the High Court weighed in on that issue in a case, brought and won by Unions NSW, against laws restricting how much advocacy groups can spend at NSW elections. More on that shortly.
The other, deeper, social issue is the place and manner of advertising and advocacy, both within our political discourse and in the wider realm of marketing in late capitalism. After all, this is the era of “programmatic advertising”: as you click on articles like this, programs that profile you as a citizen and consumer can within milliseconds sell that information to bots that tailor social and commercial messages for your eyes.
On the one hand, we yearn for more communal forms of discourse; on the other, we tend to assume that what we have is the natural state of things in modern democracy — as it is, in a sense, given the ubiquity of the internet. We might even appreciate why political parties (and charities and government agencies) insist on exemptions from the Spam Act, and even the Privacy Act. In a world saturated with commercial marketing, much of it hidden, the political sphere wants a share of our attention.
But culture and law — those interwoven twins — are neither natural nor the same everywhere. During January I was lucky enough to be based in Oñati, in the heart of the Basque country. I was living in another Western democracy and yet, judged by its marketing and public culture, I could have been on another planet. There were almost no billboards in the whole region. Few shops had more than a simple sign, usually in a variation of a common regional font.
This advertising executive’s nightmare exuded an aesthetic calm. It felt blissful compared with Australian landscapes crowded with look-at-me advertising. (There were informational downsides, of course. It took three weeks to find the bottle shop in the main street. It turned out to be a large cellar behind unmarked oak doors unadorned by opening hours, let alone a name.)
Yet there is free political discourse everywhere you turn in the Basque country. Free in both senses of the word. Graffiti, stickers and placards, old and new, about nationalism, feminism, and community and social issues. A sixteenth-century church wall even sports a large slogan, “Gora Nietzsche” (“Up Nietzsche”). In Australia, we would treat this as vandalism to be scrubbed away; otherwise ordered Basque towns choose to respect such social expression. Different cultures, yes, but also different laws and even town planning rules about property and other rights, and different social norms about the role of wealth within liberal democracy.
Which brings us to money and the High Court’s latest foray into electoral law. For close to four decades, New South Wales has led the way among Australian states in grappling with this issue. As a result, the state has a distinctive set of laws regulating election finance and party finance. (I avoid the term “political finance” advisedly, as the laws don’t extend to all political groups, all year round.)
Within these laws — and in common with British, Canadian and NZ elections — New South Wales restricts what parties, candidates and “third party” advocacy groups can spend during a defined election period. For next month’s election, parties will be able to spend about $11.5 million statewide, plus about $120,000 per constituency, for a maximum of around $22.5 million. Until last year, advocacy groups were allowed just over $1 million, but the rewrite of the Electoral Funding Act halved that allowance.
The reasons for this reduction ostensibly included fears that wealthy, coordinated interest groups would drown out other voices and distort policy debates. It’s probably also no coincidence that the change was driven by a conservative government at a time when conservatives are feeling outgunned less by Labor than by GetUp! and unions.
Unions NSW challenged the new $500,000 limit on advocacy groups in the High Court and won, with the seven judges unanimously rejecting the new law. Within that thumping score lie two twists. The first is that the unions sought to tread a fine line. They invoked the “implied freedom of political communication” in the Australian Constitution. The unions did not want to provoke a libertarian jurisprudence — a spending free-for-all — because progressives tend to support caps on political expenditure. Yet the net result is that until the NSW parliament reconvenes and reinstates a third-party limit, political parties will be subject to a spending cap but other interests won’t.
The second twist lies in the interstices of the (five) separate judgements. Where a law imposes on a constitutional value, said all the judges, parliament must have some evidence to justify burdening that value. Parliament had not explored whether $500,000 was enough to mount a statewide campaign on an issue, nor explained why the ratio of party-to-advocacy campaigns was being halved. On its own, that was enough to sink the law.
But four judges tantalisingly suggested a broader principle. They said that there is no constitutional justification for “privileging” parties and candidates, at election time, over other actors. This will be music to the ears of liberals. Potentially it could signal a formal, American idea of equality, where corporations or wealthy citizens are seen to deserve equal privileges to political parties. I doubt that is what the judges intend. But it isn’t clear what their notion of political equality, hatched recently in McCloy’s case — which upheld a ban on property-developer donations in New South Wales — actually is.
For 150 years, Westminster-style democracies have differentiated between parties or candidates, and others, in regulating elections. Differences range from old rules allowing parties free access to school premises to hold public meetings, through to modern rules giving parties public funding but requiring greater disclosure. Justice Gageler, implicitly criticising the other four judges, said that since promoting a level playing field in electoral campaigns is clearly legitimate, it is “obvious that the functional distinction between a political party… and a third-party campaigner” justifies substantial variations in their treatment.
Beyond New South Wales, elections for the ACT Legislative Assembly and the Tasmanian Legislative Council are subject to spending limits. In Canberra, parties can spend $1 million and other groups just $40,000. That ratio of 25–1 is similar to the original NSW law. But whether $40,000 is enough to mount a city-wide campaign on an issue may determine whether the High Court would uphold that law.
Tasmania’s parliament is a real platypus. Its assembly is elected proportionally but with no spending caps. In contrast, its upper house is elected via constituencies, on staggered election days, with only a few seats up for grabs each year. Upper house candidates are allowed just $16,500 to campaign, and no one else is meant to spend anything. The point is to encourage community-based candidates and keep issues regional. Is this a “privilege” the High Court should rule on?
Political campaigning is all about relative influence; but it is also about dialogue and manner. So too is the law. When Mr Palmer speaks, it is not into a void. Social power can respond by mocking the manner of his speech; but it may not bear the sheer weight of it. Parliaments wield power, including over the rules that underpin parliaments. In the spirit of one vote, one voice, one value, it is legitimate for them to rein in the voices of oligarchs and well-heeled interest groups. If parliaments overreach, the High Court should act as a boundary rider, as it did in the NSW case. But the judges are not oracles, and themselves need to self-restrain. •