Expert Forum submitted comments to the Legal Committee of the Senate on the Legislative proposal for amending and supplementing Law 334/2006 on the financing of political parties and electoral campaigns, L313/2023. The initiative of the Social Democratic Party takes over most of the draft proposed by the Permanent Electoral Authority in 2022.
See also the comments submitted on the draft prepared by the PEA together with the Electoral Code Coalition +
EFOR comments on the updated draft (after public debate)
Some of the main topics on which we submitted comments are:
- The limits for the allocation of subsidies have not been changed. EFOR proposed the introduction of a cost-per-vote system, in conjunction with a reduction of the upper thresholds for annual allocations to no more than 0.02% of GDP. We also requested that the PEA explain how budgets for subsidies are developed and mentioned that it should no longer be able to initiate proposals for budget rectifications without prior requests and without political parties having spent the amounts already received.
- When it comes to the disclosure of information on contracts for advertising and press services, political parties should include the final provider (for example, an internet portal), not only the intermediate provider that receives the money and distributes it.
- Article 24(1) narrows the spectrum of infringements for which PEA may suspend the allocation of subsidies. In the current law, a large part of the references are related to transparency obligations. By reducing this list, political parties may be encouraged to violate the law.
- Some of the destinations of expenditure (Article 25) are ambiguous and may result in expenditure that is contrary to good public-sector practice. Examples include spending on constructions, property, and upgrades for properties, as well as inviting foreign delegations at the expense of the Romanian side, including spending on accompanying personnel. The proposed legislation also permits the use of funds for compensation, fines, forfeitures, penalties, interest or surcharges for late payment, and incidental expenditures, meaning that parties may utilize public funds to meet penalties. We recognise that some parties rely heavily on subsidies and cannot meet such expenditures with other finances, but adopting this option does not address the issue of the parties’ financial sources. Furthermore, it generates inequitable circumstances for political parties that lack access to public resources.
The electoral campaign
- Increasing the thresholds for campaign contributions by introducing a regulation in Article 30 that states that political parties can contribute to the campaign an amount equal to that for candidates. The provision will allow parties receiving subsidies to transfer even more money to the campaign, further increasing their influence during the election period.
- The draft restricts the transparency of campaign contributions by stipulating that they are only published 30 days after the end of the campaign. Para. 17 of Article 28 seriously violates the right to information and transparency. According to the current legal framework there is no regulation providing for transparency during the electoral campaign, but in practice the AEP has usually published contributions on a weekly basis, even if not in the same format. The fact that this information is published a month after the end of the election campaign severely limits the right of voters, observers and the media to understand how the election campaign is financed. This proposal is contrary to the Venice Commission’s Code of Good Practice in Electoral Matters and the recommendations of the most recent election monitoring reports published by the OSCE/ODIHR.
- The definition of propaganda material does not take into account third parties and how they can contribute to the election campaign.
The financing of political parties
- The draft needs to define what non-political formations are.
- The conditions for a person’s donation to remain confidential are no longer clear, as certain paragraphs of Article 11 have been repealed.
The functioning of the PEA
- The conditions of employment of the Director-General of the Department for the Control of the Financing of Political Parties and Electoral Campaigns lack certain criteria that would strengthen the appointment process. Given that according to the legislative proposal any person from the PEA with economic or legal studies can be appointed by an external commission appointed by the President of the PEA, we consider that certain limitations are imposed, which affect competition. Additional criteria could also be introduced to limit the appointment of a person with a political profile or interests.
Other topics that the legislation should include
- As a matter of concept, the law should reopen the subject of the restrictive list of outdoor election materials used for campaigning. Thus, limiting the use of posters significantly reduces the way competitors without significant resources or campaigning locally can promote themselves, creating an uneven playing field for campaigning. The list of types of outdoor materials that can be used should be reviewed.
- The bill makes no mention of the ongoing issue of pre-campaign regulation. Public subsidies have been used extensively even before the commencement of the election campaign, with the express goal of promoting election rivals. This expense, however, is not mentioned in campaign reports, and propaganda items are not reported as such. Subsidized parties have a substantial advantage in this scenario.
- The law does not give PEA additional control powers to intervene to find misuse of public resources or to find problems related to the financing of political parties or electoral campaigns in a timely manner and which are not strictly related to documents. Both in terms of campaign financing and political party financing, the PEA does not have sufficient mechanisms to control breaches of the law in a timely manner, as the work of the institution is focused on post-event document verification. The PEA should have the capacity to carry out checks, including during the election campaign, to detect breaches of the law on the ground. For example, PEA does not have the capacity to monitor abuse of public resources in real time, checking documents after the end of the electoral campaign. This is also noted in the OSCE/ODIHR report for the 2020 parliamentary elections: “Overall, the campaign finance regulatory framework does not ensure transparency of campaign finance and the effectiveness of oversight due to lack of interim reporting and limited powers of the PEA to identify unreported income and expenditure.” Also, “The PEA has limited auditing powers over campaign income and expenditure, and mostly verifies the financial documents submitted by the contestants” and “The PEA performs verifications in terms of compliance with the law, deadlines, or rules of reporting, but has no power to conduct an actual financial audit over the amounts”.
- Given the lack of transparency in party operations, the law could require that parties receiving subsidies fulfill certain obligations, such as updating their websites with the total number of members, contact information for party leadership and county and local branches, and the contact information for the person responsible for enforcing the provisions of Law 544/2001, which apply to parties in this category.