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The Limits of Regulation: Indirect Party Access to State Resources in Australia and
the UK
Nicole Bolleyer, University of Exeter
&
Anika Gauja, University of Sydney
Abstract:
The way in which political parties use state resources indirectly (for example,
parliamentary expenses) receives substantial attention in public debate, particularly
when surrounded by perceptions of misuse. However, scholarly studies of resources
indirectly available to parties through their functions in the state, how they are used
and regulated, are rare. This paper presents an analytical framework that identifies
and categorises the range of indirect resources linked to parties’ institutional roles. It
locates these resources within a four-fold matrix of regulation, distinguishing
regimes that vary in their detail and whether compliance is externally monitored.
Undertaking comparative case studies of parliamentary resource use in the UK and
Australia, we argue that the blurring of party-political and parliamentary roles can
impede the effectiveness of regulatory regimes that democracies adopt, regardless
of detail and external enforcement. These findings have important implications for
regulatory reforms that seek to constrain parties’ behaviour to depoliticise
democratic governance.
Key words: regulation, state resources, indirect party funding, governmentopposition dynamics, parliamentary resources.
2
Introduction
In many Western democracies, the indirect, party-political use of state resources (for
example, using parliamentary staffers for party work) has gained considerable
salience over the last decade with citizens becoming increasingly hostile to what are
often perceived as illegitimate practices. As a reflection, the comparative study of
party-state relations, especially of direct state funding, has been high on the
research agenda.1 Nonetheless we still have little systematic insight into the leeway
that parties have in different political systems to use monetary and non-monetary
resources that are attached to the state in informal ways – access that can intensify
incumbency advantages and thereby distort fair competition. Existing cross-national
work has tended to focus on specific practices,2 while attempts to cover a variety of
resources parties might be able to use (formally and informally) in democracies, in
contrast, have been rare (see, for exceptions, Biezen and Kopecký 2007; Nassmacher
2009). This paper presents the tools to analyze indirect access to state resources
across resource type and political system. Its usefulness is demonstrated through an
in-depth study of parliamentary resource regulation and usage in Australia and the
United Kingdom (UK).
A comparative analysis covering indirect state funding for political parties and the
way in which relevant resources are regulated is crucial to addressing two questions
that are as important to the party literature as they are to the comparative study of
regulation and regulatory reform. First, how do democratic states try – through
means of regulation – to prevent parties from using state resources not earmarked
for party-political purposes to their advantage? Second, even in cases where
constraining regulation is adopted, is regulation likely to be effective in meeting this
goal? There are reasons to be sceptical. Parties – as legislators and main decisionmakers in reform processes – are likely to prefer vague or minimal restrictions on
their own behaviour and might collude in implementing mutually beneficial policies,
a problem emphasized in the literature on party funding (Katz and Mair 2009; Koss
2011; Feasby 2007; Geddis 2007). The success of such endeavours further
presupposes that party-political and institutional functions can be clearly separated
3
through means of regulation, which, in practice, may not be the case (see for
example, Birch 2011, 32; Allen 2011). Even when detailed regulation is adopted (e.g.
as a response to a scandal to re-establish public confidence), this regulation is likely
to leave leeway for political or party-political usage. This affects the likelihood of
whether the actual partisan usage is not only considered – by some – as normatively
problematic but also recognised as official misconduct (Allen 2011, 213), which is
particularly crucial for those who are regulated.
Our empirical findings suggest that institutional functions cannot be clearly
separated from party-political functions in parliamentary systems. We argue that
this connection is particularly pronounced in (although not unique to) parliamentary
regimes3 as the government and parliamentary majority form one unit of action and
party representatives typically identify less with their institutional roles (e.g. as
parliamentarians or government representatives) than with their functional roles
(e.g. as part of the ruling majority or the opposition). This not only suggests that
depoliticization through regulation has its limits but also that the much observed
increasing regulation of party actors (Gauja 2010; Biezen 2004) might be less
constraining for them in practice than is commonly assumed. Perhaps more
importantly, the broader normative considerations that lie behind the performance
of these functions and much of the ethical unease created reveals a conflict not
between private and public interests, but between competing legitimate public
claims – in this instance the conflict between semi-public (or entirely public, see
Epstein 1986, 157; Biezen 2004, 705) partisan interests and institutional resources
provided for the wider public good.
We first present an analytical scheme to map out the universe of state resources
that parties can access directly and indirectly, showing that ‘indirect resources’ are
linked to parties’ institutional roles as parliamentarians and governors. We then
present a matrix distinguishing four types of regimes that can regulate the use of
institutional resources and on this basis assess how parliamentary resources are
used and regulated in Australia and the UK. These case studies exemplify the
limitations of formal-legal accounts of party-political resource use, even with regard
4
to state resources regulated by precise rules that are enforced externally. The
conclusion returns to the normative repercussions of our findings and presents
avenues for future research.
Locating the Opportunities for Parties to Access State Resources
Defining Indirect Resource Use
The indirect access to or ‘extra-legal’ use of state resources by political parties
implies that resources can be used for party-political purposes although they are not
earmarked for it. Extra-legal practices do not necessarily or clearly violate any legal
rules. More often, they only violate the ‘spirit of the law’, considered to be
problematic in terms of legitimacy rather than legality. Outright violations of legal
requirements that would qualify as corrupt practices are not the main focus of this
study. Instead, our focus is on how political parties operate within the given
regulatory framework, and how far party behaviour might include the exploitation of
unintended or potentially inevitable ambiguities or ‘grey zones’.
Mapping the Access to Direct and Indirect Party Resources
To map out the range of relevant resources potentially available to parties or
partisan organisations, we need to consider not only monetary payments but also
funding received by parties ‘in kind’ such as access to free broadcasting (e.g. Biezen
2003; Casas-Zamora 2005; Nassmacher 2009). Previous research has shown that the
monetary value of these resources in Australia and the UK constitutes between 5070 per cent of total party income – a significant source when compared to
donations, direct state funding and membership fees (Gauja 2013, 130). In the
following, we distinguish whether the use of a resource is explicitly earmarked for
party-political purposes or not. Finally, we distinguish four types of roles through
which political parties can access resources – societal, electoral, parliamentary and
governmental – which help us to locate the spheres of party activity within which
indirect, i.e. informal, resource usage is most prominent.4
5
Table 1 illustrates that the possibility of accessing state resources indirectly tends to
be tied to parties’ institutional roles (parliamentary or governmental, shaded
quadrants) rather than their societal or electoral functions, which most direct party
funding facilitates.
[TABLE 1 HERE]
Our analysis focuses on the lower four shaded boxes covering resources accessed
informally and thus indirectly, where party access is perceived as most problematic,
i.e. where resources are not supposed to be used for party-political purposes or,
alternatively, where a resource is supposed to be used for other purposes. While in
the latter case the conflict is less pronounced as long as the party-political use still
allows for the official goal to be met, both practices are normatively contested: be it
because it is generally considered an abuse of public privilege or because it violates
the norms of fair competition. Indirect access to state resources usually presupposes
that parties occupy institutional positions (e.g. they hold parliamentary seats or
control government ministries), which means that parties without such access are
systematically disadvantaged.
The party-political usage of government resources is not per se seen as more
problematic than the usage of parliamentary resources or vice versa, since both
situations violate the same norm: the former can create imbalances in the
competition between government and parliamentary parties, the latter between
parties inside and outside parliament. Whether governmental or parliamentary
resource use is the more relevant unit for analysis and the extent to which each
practice is (more or less) problematic needs to be judged in relation to its
institutional and systemic context. In ‘high threshold countries’ where the entry of
new parties into parliament is difficult, the partisan exploitation of institutional
resources by parliamentary parties can be considered as particularly problematic.
Similarly, the more pronounced executive dominance is, the more critical the
exploitation of government resources.
6
While these institutionally embedded normative tensions are relevant as such,
whether party-political usage constitutes official misconduct depends on the
regulatory context in which such activities occur (Allen 2011, 213). If – as a
consequence of broadening conceptions of misconduct - regulation aims at
separating political from institutional resource usage (Kaye 2005; Allen 2011), officeholders are pushed to separate two interconnected roles both of which aim at the
provision of a public good: depoliticized policy-making driven by expertise not by
party-political preferences (see for example, Flinders and Buller 2006) and the
presentation of distinct, party-political alternatives to citizens, a basic precondition
for meaningful party competition (Epstein 1986). While tighter regulation pushes
politicians to downplay their partisan orientations while in office, a situation of
‘permanent campaigning’ in contemporary democracies (Farrell and Webb 2000,
106) intensifies the challenges to pursue both goals simultaneously. This is all the
more the case since new media technologies empower critical citizens and facilitate
public scrutiny.
The Tension between Institutional Earmarking and Party-Political Roles: Limits of
Regulation
If opportunities for the indirect party-political use of state resources are mostly tied
to parties’ institutional roles and there is considerable pressure on politicians to use
resources to pursue party-political goals alongside their institutional duties, how can
resource use be regulated to constrain parties that attempt to gain advantage from
their privileged access? Formal legal regulation that seeks to constrain partisan
activity tends to be formulated with respect to the institutional purpose for which
resource use is permitted. It is founded on the assumption that resources can be
allocated to certain functions, yet previous scholarship from both studies of party
resources and legislative roles suggests that the distinction between state and party
activity is not at all clear-cut. Birch (2011, 32), for instance, argues that keeping the
roles of party and government actors separate ‘is notoriously difficult at the best of
times, and it is fair to say that even in the most democratic of states, the line
7
between state resources and party resources is a fine one’. As an example of the
difficulty of resolving what could be conceptualized as competing public claims,
although most states do have complex regulations restricting the party-political use
of state resources, Birch notes that ‘one of the most common forms of electoral
malpractice is the violation of such regulations, or where detailed regulations do not
exist, the violation of the norm of the separation of state and political resources’
(2011, 32).
To the extent that this ‘norm of separation’ is built upon an assumption that partisan
and institutional (parliamentary and governmental) roles are distinct; formal
regulation faces limits. Scholars working within the sub-discipline of legislative
studies have consistently noted the interdependence of party and parliamentary
government (Heidar and Koole 2000; Beer 1965), the importance of parties in
shaping debate in an arena legislature (Polsby 1975) and the significant impact of
party affiliation on perceptions of parliamentary roles (see for example, Rush and
Giddings 2011; Cowley 2002; Damgaard 1997; Andeweg 1997). The impact of such
socialisation is to undercut the clear distinction between party and parliamentary
representative not only in the mind of the parliamentarian, but in their everyday
activities.5 This does not suggest that the nature of the regime adopted to regulate
resource usage is irrelevant. What we argue, however, is that neither on the level of
office-holders’ perceptions, the normative level of competing public claims, nor on
an operational, regulatory level – the dimension we are exploring in this paper –
institutional and party-political functions can be distinguished free of ambiguity.
Regulating Resource Use
To assess the extent to which the party-political use of the institutional resources
listed in Table 1 is constrained or not, we need to systematize the regulatory
frameworks applying to each resource. Drawing on Francis (1993), we conceptualise
regulation broadly as a set of rules and mechanisms designed to constrain certain
types of activity in order to promote the public good. We consider two core features
8
of regulatory frameworks that are stressed in studies of party finance regulation
(Nassmacher 2003). These are: (a) the specificity of the earmarking (is the resource
use clearly defined or is it left vague or open?), and (b), the presence of external
regulators to monitor whether existing rules are implemented and to sanction
misconduct, or whether the monitoring is left to self-regulation. 6 Thus, the
characteristics of the different regulatory regimes can be conceptualised as a fourfield matrix as displayed in Table 2. While previous studies (such as Nassmacher
2003, 10-12) have developed more detailed classifications that explore countryspecific regulatory strategies reflecting different combinations of core values (e.g.
autonomy or transparency), our matrix aims at providing categories able to specify
the nature of regulation applied to individual resources across different systemic
contexts.
[TABLE 2 HERE]
The matrix highlights the two key regulatory tools (the type of monitoring and the
specificity of regulation) that combine to produce varying levels of constraint. A
combination of the detailed specification of resource use and the external
monitoring of regulations produces what might be termed a ‘constraining regime’.
Here the opportunity for indirect resource use would be most limited. This is
because officially recognised misconduct (rather than the exposure of merely
improper behaviour) is most likely, which – following Allen’s specification –
presupposes clear rules, their actual and observed violation and finally the
investigation and confirmation by an officially recognised actor (2011, 213). The
combination of self-regulation and broad specification conversely creates a ‘selfrestraining regime’, in which parties would have most leeway. While party-political
usage – if revealed – might be considered unacceptable, official sanctions are
unlikely. Between these two types lie two mixed regimes. Political parties operating
in an institutionally constraining regime are constrained by an external body in
charge of monitoring resource usage but can exploit the ambiguities associated with
resource specification in an environment of regulatory ‘reasonableness’ that avoids
unduly prescriptive rules. Constraints result less from the risks of engaging in actual
9
violations than the public exposure of illegitimate practices by an independent
regulator. Parties operating within functionally constraining regimes, in effect,
monitor themselves and thus may choose not to police resource use, even if it
specified or regulated in some detail. Officially recognised misconduct is less likely in
practice under the latter regime that lacks external monitoring, but actual exposure
is more severe if it occurs, since parties are more likely to violate rules.
Methods and Case Selection
Regulatory frameworks that govern the use of institutional resources are specified
based on primary documents (government publications, publications by the
institution allocating the resource or the regulators in charge, etc. – for details see
the Appendix). When it comes to studying parties’ actual handling of these
institutional resources, a number of methodological issues arise. As this research
involves examining practices that might be categorised as improper, we have relied
as far as possible on documentary analysis (e.g. commission reports revealing
problematic practices or reports by regulators evaluating compliance with existing
regulations), complemented by 15 semi-structured elite interviews with regulators,
experts and party representatives from the UK and Australia.7 Due to the sensitivity
of the practices involved, questions asked of party representatives were couched in
neutral terms, and sought to clarify procedures and obtain information on the sorts
of activities undertaken rather than employing an a priori categorisation of resource
types and flows.
Both Australia and the UK have long tended to use self-restraining regimes. While
Australia has only undertaken marginal changes (despite public criticism), the UK has
experienced a distinct change in its regulatory framework over the last decade,
moving towards more constraining regimes (e.g. Flinders 2009; Allen 2010). These
differences (see Table 3 below) allow us to examine how the adoption of more
constraining regulatory regimes impacts on partisan practices. At the same time, the
two cases share basic similarities in their political cultures and a growing
10
disenchantment amongst the public with political parties and the institutions of
formal politics. Unlike ‘party states’ such as Austria, there is a clear separation
between political parties and the state apparatus (Kopecký et al. 2012). A functional
division between government (usually supported by a parliamentary majority) and
its parliamentary opposition tends to dominate political processes in parliamentary
regimes generally (Lijphart 1999), which, as argued earlier, affects parliamentarians’
self-understanding and the extent to which they identify with institutional as
compared to party-political roles. However, in classical Westminster democracies
government-opposition dynamics are particularly pronounced as a consequence of
party system dynamics that are usually shaped by two major parties competing for
government (Rhodes et al. 2009, 71-4). This intense blurring of roles creates tensions
when resources are formally earmarked for institutional usage, which should
reinforce grey zones that already exist on the regulatory level, even if a constraining
regime is put into place. While such tensions are widespread across democracies,
both the UK and Australia are settings that should reveal possible limits of the
various regulatory regimes adopted with particular clarity, which makes their study
methodologically advantageous.
Assessing the Regulation of Indirect Access Opportunities through Parliament in
Australia and the UK
As presented in Table 2, regulatory regimes can be classified according to whether
the use of resources is self-monitored or monitored externally. To qualify as external
regulation in operational terms, monitoring of resource use should not be
undertaken by an institution through which parties access the resource in the first
place, or by an institution that is formally or de facto controlled by parties. The
specificity of the regulation refers to the level of detail that is ascribed to how a
resource can be used. In operational terms, regulation qualifies as specific if the
functional specification of institutionally defined usage8 is further developed either
through inclusion or exclusion (e.g. through a listing of activities or more specific
purposes that constitute ‘parliamentary business’ or a listing of activities or purposes
11
that are excluded from it and are therefore prohibited, or both).9 On that basis,
Table 3 gives an overview of the types of regulation that apply to resources available
to parliamentary and government actors in the UK and Australia.
[TABLE 3 HERE]
Table 3 reveals notable differences in how party-political access to these resources is
regulated. In the UK, a considerable range of resources is regulated through
constraining regimes. At present, except for the tithing of parliamentary salaries (an
intra-organizational party practice), parliamentary research facilities, estate facilities
and subsidies (all collective parliamentary resources), no other resources operate
under a self-restraining regime. In contrast, we find disinclination towards
constraining regimes in Australia. Only one of the resources falls in the most
constraining category, government advertising – which came under new regulations
and the oversight of the Auditor General in 2008.
How Parties Use Parliamentary Resources: The Practical Limits of Regulation in
Australia and the UK
The following case studies highlight the discrepancy between normative aspirations
of regulation and strategic partisan behaviour. A qualitative case study approach is
most suitable to achieve this, assuring access to information on informal practices,
while doing justice to our interest in the nature of resource usage requiring in-depth
study (Gerring 2007, 48-50). We focus on parliamentary resources attached to the
first house of parliament to increase comparability across contexts. Where insightful,
we contrast current regulations and their consequences with the system in place
before. As access to parliamentary resources concerns all political parties with
parliamentary representation, not just governing parties, their analysis has broader
implications for indirect resource usage by political parties generally. Furthermore,
Table 3 illustrated that the type of regulatory regime is not systematically linked to a
resource being allocated to parliamentary or governmental functions. A focus on
12
parliamentary resources will therefore not bias our analyses. We discuss two types
of resources that are earmarked for ‘parliamentary business’ and exist in both
systems: those supporting MPs’ communications with citizens and staffing resources
that, more broadly, help MPs to meet their parliamentary functions. Although we
find parliamentary group subsidies only in the UK, we include an assessment of
‘Short Money’ because it is an important income source where direct state funding
is, compared to other democracies, meagre.10 The debate around this resource and
the way it is regulated reveals with particular clarity the overlap of institutional and
political functions – a challenge apparent in a number of European democracies (for
example, Nassmacher 2009; Sickinger 2009).
Table 4 sums up how each of these resources is regulated and the leeway for partypolitical use detected in the case studies. The analysis shows, overall, that the
adoption of a functionally constraining regime instead of a self-restraining one
appears not to make much of a difference in terms of the leeway for party-political
usage. Furthermore, while constraining regimes impose limits to what parties can do
with institutional resources, these regulations are by no means watertight either.
[TABLE 4 HERE]
The Use of Parliamentary Resources Regulated by a Self-Restraining Regime
In Australia, all parliamentary resources are regulated through a functionally
constraining regime or a self-restraining one. Guidelines and regulations that relate
to MPs’ use of allowances and entitlements are issued by the Special Minister of
State and the Department of Finance, and are framed by a legislative regime set by
the parliament itself. While Ministerial and Parliamentary Services officers may assist
parliamentarians in advising and voluntarily checking entitlement use, ‘it remains the
responsibility of the Senator or Member to satisfy themselves that their use of their
entitlements is lawful’ and to ‘satisfy themselves that their use is publicly defensible’
(Australian Government 2010, 8).
13
One example that falls within the self-restraining regime is parliamentary and
electorate staffing. All MPs are entitled to hire four members of staff, with additional
staff allocated to party leaders and MPs with large electorates. Restrictions are
placed upon Ministers employing family members under the Standards of Ministerial
Ethics code (s 2.18), however these do not apply more broadly to MPs. The MP is
entirely responsible for hiring staff, and no restrictions are placed on the additional
employment activities of part time and casual workers, who are also free to work for
a political party.11 While support for the constituency office and case work falls
clearly within the remit of ‘parliamentary business’, the line is more difficult to draw
in the case of researchers who might support the drafting of policy proposals, in
effect, party policy. It is considered – among regulators and parliamentary actors –
normal practice that MPs hire party supporters for these posts. This does not only
mean that access to parliamentary staff can function as reward for loyal party
workers but also that staffers’ engagement in party activities as private citizens is
likely to blur the line between support for the MP as parliamentarian and as party
politicians even more.
In the UK some resources continue to be regulated by self-restraining regimes,
especially parliamentary resources provided to MPs collectively. UK ‘Short Money’
was introduced in 1974 to enable opposition parties to more effectively fulfil their
parliamentary functions. 12 In 2010/11 the two biggest opposition parties, the
Conservatives and the Liberal Democrats received £2,841,498.00 and £889,762.00
respectively. Labour received £3,702,558.00 after the 2010 elections.13 Compared to
payments made since 2000 to the organizations of the major parties for policy
development administered by the Electoral Commission which total £2,000,000.00,
parliamentary subsidies clearly constitute the more important source of income.14
This resource does not even out the imbalance between the executive and the
legislature as institutional actors, but between government and opposition, which
are politically defined roles. It also rests on the recognition that parties indeed profit
resource-wise once taking over government (e.g. ministerial support, special
advisors) – otherwise the financial support accorded to opposition parties to even
14
out the government’s resource access would be difficult to defend. The money, in
effect, flows into general party budgets, most visible in the case of the Conservative
Party, whose Short Money is directly transferred to the House to the Conservative
Party headquarters, not to the parliamentary party as in Labour or in the Liberal
Democrats.
‘Parliamentary business’ is not unspecified as such, yet as Ewing, serving as an expert
witness at a hearing of the Select Committee on Public Administration, put it: ‘we
have a definition of parliamentary business which does not include the words
“Parliament” or “House of Commons”, which seems to be an extra-ordinary omission
in terms of the use of the money’.15 Article 3(1) of the Short Money resolution of 26
May 1999 declares that ‘financial assistance shall be available for the costs
necessarily incurred in the running of the Leader of the Opposition’s Office’, which in
practice means the hiring of press officers and other support staff. While the
regulation qualifies as specific in the sense that it indeed details ‘parliamentary
business’, it does so referring to opposition parties’ political role rather than
institutionally defined functions. This means the regulation cannot be functionally
constraining with regard to parliamentarians’ attempts to use institutional resources
for party-political purposes and thus does not qualify as specific regulation in line
with our earlier operationalization.
As constitutive for a self-restraining regime, there are no effective monitoring
requirements in place that check whether boundaries have been crossed. Unlike
MPs’ expenses (now regulated by IPSA) or the policy development grant scheme
(administered by the Electoral Commission), Short Money is handled in the House of
Commons. More specifically, auditors hired by the individual parties provide a report
to the House’s Fees Office confirming that the party spent more money on
parliamentary business than it received in terms of Short Money, which obviously is
different from checking how Short Money has been used, as minutes of hearings of
the auditors of the three main parties by the Select Committee on Public
Administration indicate.16 While the HoC Fees Office simply files the submitted
reports and is no active monitor, the independent auditors base their judgement on
15
further specifications of ‘parliamentary business’ provided to them by their
employer – the parties. Interestingly, a former report of the Public Administration
Select Committee (2001) indicated that Short Money de facto constitutes – despite
being framed as institutional support – a political resource to hire staff, comparable
to the resources of government to hire special advisers (which are regulated by a
functionally constraining, i.e. stricter, regime). This became most visible in the
Committee’s recommendation that Short Money and special advisors should be paid
for from the same fund.17
The Use of Parliamentary Resources Regulated by a Functionally Constraining
Regime
An example of a parliamentary resource regulated by a functionally constraining
regime is the provision of the printing and communications allowance to Australian
MPs. Although earmarking is specific unlike in the two cases just discussed, flexible
party-political usage on behalf of parties can be identified, reflecting a lack of
external monitoring. MPs are provided with the costs of commercially printing,
communicating and distributing information for parliamentary or electorate
purposes, in both hard copy and/or electronic format (including establishing and
maintaining websites).18 The principal purpose of the entitlement is to facilitate their
duties as an elected representative of their constituents (ANAO 2009, 17), and must
not be used for party business or the production of how to vote material. Party
business is defined as: ‘the production, communication of material that: is, or
contains, how-to-vote material; or solicits subscriptions or other financial support for
a member, political party or candidate’.19 MPs intending to use their entitlement to
print and communicate material may submit a copy of the proposed material to
Ministerial and Parliamentary services (a subdivision of the Department of Finance)
prior to printing, which will be ‘assessed against the parameters of the printing and
communications entitlement’ (Australian Government 2010, 55). However, this is a
voluntary measure.
16
A report on parliamentary entitlements by the Australian National Audit Office found
that the use of the printing entitlement for election campaigning activities ‘was
apparent from both the nature of the items printed using the entitlement in the
period leading up to, and during the 2007 election campaign’ (ANAO 2009, 29). To
determine the extent to which parliamentarians were acting outside the scope of
their entitlements the ANAO took a sample of materials printed using the Printing
Allowance. 74% of the items reviewed (with a value of $4.64 million) were at varying
levels of risk of being outside entitlement. Examples included items ‘with high levels
of material promoting party political interests and/or directly attracting or scorning
the views, policies or actions of others, such as the policies and opinions of other
parties’ (ANAO 2009, 36-7). Reference was made to the ongoing and usual practice
for MPs’ printing materials to be strategically coordinated and to involve the
‘consistent delivery of campaign messages and themes’, evidenced by party-wide
advertising strategies, common text and artwork designed to promote the interests
of the party and the use of a limited number of printing firms (ANAO 2009, 206-7).
The Use of Parliamentary Resources Regulated by a Constraining Regime
While none of the parliamentary resources in Australia fall under a constraining
regulatory regime, constraining regimes have gained considerable prominence in the
UK. Looking at two resources falling in this most constraining category, we again find
leeway for party-political usage.
Starting with what is now called the Office Costs Expenditure, it is useful to look back
at how resources for communication were regulated before IPSA. Up to 2007 there
had been no sufficient specifications on how, for instance, newsletters (that were
financed by the existing allowance for office running costs, the Incidental Expenses
Provision Allowance) were used by parliamentarians to communicate with citizens in
relation to their parliamentary duties (Kelly 2010b, 5-6). Nor was the use of free
postage clearly specified. Interviewees indicated that former House staff considered
many activities as crossing the boundaries of parliamentary business, e.g. parties
sent their MPs material to be included in their newsletters, behaviour that was rarely
picked up. Considering MPs as underpaid, House staff widely saw MPs as entitled to
17
use their allowances to the full (Allen 2011). Before allowances were regulated by
IPSA, the House of Commons Committee on Standards and Privileges (now the
Standards Committee) was alone in charge of handling parliamentary misconduct.20
Back in 2006, to give one example, the Committee on Standards and Privileges
rejected as inappropriate the conduct of an MP who included party political material
in his annual report that was sent out using the Incidental Expenses Allowance
(Johnston and Pattie 2009, 582). That said, the Committee usually found it difficult to
respond to the misuse of allowances involving a conflict of roles between ‘the MPas-Member-of-Parliament’ and the ‘MP-as-Party-Politician’. 100 critical reports
published by the Committee from 1995-2010 contained a total of 181 adverse
findings. Only 25 concerned the political misuse of allowances, of which only four
qualified as serious (Allen 2011, 223-228).
In 2007, the UK Parliamentary Communication Allowance was introduced, designed
to assist MPs to communicate with the public on ‘parliamentary business’. It was set
at £10,000 per MP, rising to £10,400 in 2008-09. Since the scheme was heavily
contested, stricter regulations were discussed already in summer 2008 and a Revised
Green Book and Audit of Members’ Allowances was published in January 2009. New
measures attempted to more effectively prevent resource use for campaigning, e.g.
the use of the allowance was prohibited 28 days before polling day, as was the
display of party logos or campaign slogans on newsletters. This functionally
constraining regime was abolished in the wake of the expenses scandal and replaced
by a constraining regime.
The current allowance for Office Costs Expenditure – the resource MPs can use for
communication with citizens is monitored by IPSA, an external regulator for MP
expenses created in 2009. As indicated by IPSA staff, the fundamental problem that
parliamentarians’ institutional and party-political roles are inevitably intertwined
remains. The regulator does not consider it part of its role to develop a workable
distinction, which points to the practical limitations in preventing the usage of
institutional resources that might be considered inappropriate, especially facing
heightened public sensitivities. While active campaigning is strictly prohibited
18
(newsletters, for instance, are no longer allowed under the current scheme),
borderline cases are inevitable (e.g. in the case of the public financing of MPs’
websites).
The limitations inherent in constraining regulatory regimes become even clearer
when considering the Staff Expenditure21 available to members of the House of
Commons, also a resource within the remit of IPSA. Office support was introduced in
1969 starting with an allowance of £500 per MP and rose to £103,812.00 in 2009
(Lightbown and Smith 2009, 57-58). For most of its existence, the allowance was
administered by the House, as with most other allowances.
Before IPSA was
created, complaints were brought forward to the Committee of Standards and
Privileges that part-time parliamentary staff were employed by the MP’s party for
the rest of the time, a practice that was criticized but is still nothing unusual
nowadays. This is possible since party-political usage of staff is predominantly
debated in terms of what parliamentary assistants ought to do, not who these
assistants ought to be.22 IPSA specifies the parliamentary functions staff can deal
with, provides a model contract and monitors regulations but MPs are still in charge
of their staff. They are able to reward former party workers by providing them
access to positions as far as they professionally qualify for the role. While having
staff committed to the same political goals might be politically sensible, it blurs the
line between the institutional and political spheres, which regulation aims at
separating. In the wake of the expenses scandal the proposal was debated that – to
circumvent such grey zones – staff should be hired by the House rather than being
controlled by MPs individually. This proposal, however, was not adopted, leading to
a leeway for party-political use similar to that which we identified in Australia, where
staffing is regulated by a functionally constraining regime.
Conclusions
The way in which political parties use state resources indirectly (for example,
parliamentary expenses, staffing allowances and political appointments) receives
19
substantial attention in public debate, particularly when surrounded by perceptions
of abuse or misuse. In an era of new media technology driven by critical citizens and
increased scrutiny, public sensitivities are considerable, not only when it comes to
illegal practices such as corruption. The use of institutional resources by parties and
their representatives tends to be perceived as violating norms of fair competition
and the separation of institutionally earmarked and political resources.
Despite the considerable salience of the issue, we find many studies on direct state
funding granted to parties in advanced democracies but only few on indirect
resource usage providing a broader picture on the range of sources available for
indirect party-political usage in a democracy. In a first attempt to address this gap,
we mapped out the types of institutional resources parties can access indirectly in
Australia and UK and examined how each state tries – through different regulatory
regimes – to prevent parties from using institutional resources not earmarked for
party-political purposes to their advantage and whether regulation is effective.
We specified the types of regimes regulating individual resources, distinguishing
regimes according to their precision in specifying the type of usage permitted and
the structures set up for monitoring. This typology, given its focus on the regulation
of individual resources (rather than starting out from a particular systemic context) is
applicable to a range of legislatures and political systems. To exemplify the tensions
and discrepancies between the normative aspirations of regulation and strategic
party-political behaviour, we then presented case studies of the actual usage of
parliamentary resources in Australia and the UK. In these two settings, where
parliamentarians strongly identify with their functional role as part of the
governmental majority or its opposition, we found that despite varying regulatory
regimes applicable to the various parliamentary resources, both monetary and nonmonetary resources were capable of exploitation. Leeway for party-political use
existed, even if constraining regimes were adopted.
This finding has broader repercussions. The success of regulatory reforms driven by
the increasing criticism of parties’ exploitation of public privileges and a growing
20
desire to see ‘governing’ depoliticized presupposes that party-political functions and
institutional functions can be clearly separated through means of regulation, which
our findings put into doubt - at the least in systems where government-opposition
dynamics dominate political decision-making. This, in turn, implies practical barriers
against a depolitization of parliamentary politics, that some see as a means to reestablish citizen confidence in modern government. The different regulatory
approaches applicable to different resources in a system (particularly more
constraining regimes) are unlikely to be effective unless they, and the associated
policy prescriptions, are driven by the awareness that when trying to regulate
informal resource use, preventing unfair competition is only one dimension to be
considered. Party representatives in public office need to reconcile competing public
claims linked to their role as law-makers and governors and to their role as party
politicians representing political alternatives to citizens. Hence, the increasing use of
detailed reporting and disclosure requirements needs to be accompanied by a public
discussion of what constitutes informal use and which of these possibly competing
goals the regulation of resources ought to achieve.
Our research findings also imply that the intensifying regulatory constraints imposed
on parties in advanced democracies, which some consider as a form of state
encroachment, might have less of an effect on their behaviour than is sometimes
assumed. This is the case not only because parties may deliberately refrain from
attempts to specify ‘parliamentary business’ in such a way that institutional and
political purpose could be sensibly distinguished (Short Money in the UK) or because
functionally constraining specifications are violated in practice because no effective
monitoring is in place (the communications allowance in Australia). Even if
constraining regimes are adopted with the goal to implement a clear-cut distinction
between institutional and political functions, some leeway for party-political usage
tends to remain (UK Staff Expenditures). Various studies we referred to throughout
this article suggest that similar problems have been observed in other types of
political systems. Whether the challenges of regulating political resource usage are
relatively less pronounced in presidential or consensus democracies (where partisan
identities might be weaker and institutional ones stronger) rather than in the
21
majoritarian democracies analyzed here needs to be addressed in future research,
which might also look at differences in the institutional or political context as well as
types of resource regulation (which this article focused on). What seems to be clear
though is that with continued access to financial resources well in excess of those
obtained through membership subscriptions and direct state funding, the future of
political parties appears to be tied ever more closely to their parliamentary and
governmental roles.
While this paper did not aim to account for the respective choices in favour of
particular regimes through which the use of state resources is regulated in advanced
democracies, it proposed a way to systematize the variety of these choices within
and across countries. We found that in Australia and the UK institutional resources
are regulated with different levels of strictness, the readiness to engage in reform
away from self-restraining solutions was much more pronounced in the UK. There,
public pressure and disillusionment was particularly intense after the expenses
scandal, which constituted an important trigger for reform. However, a trend
towards more constraining regulation of both the use of government and of
parliamentary resources has been under way since the 1990s (Allen 2010; 2011;
Flinders 2009), which suggests that such reforms should not be considered as
isolated responses to individual scandals. Clearly, the variety of regulatory choices
elites make in democracies and the different pathways they choose to respond to
public criticism constitutes a challenge for future research. To address these
challenges, future research needs to systematize regulatory differences across a
wider range of democracies than was possible in this paper. It especially needs to
consider variations in institutional and party system configurations, which we
deliberately minimized in order to be able to compare the practical implications of
differences in resource regulation rather than political system. More encompassing
comparisons that study ‘regulatory choice’ (rather than ‘regulatory effect’) could
then provide the foundation for a study of the general conditions and the specific
triggers that push political elites to adopt more constraining regimes that might
reduce their room for manoeuvre.
22
1
See, for instance, Biezen 2003, Casas-Zamora 2005; Fisher 2010; Fisher et al. 2009; Pinto-Duschinsky
2002; Nassmacher 2003; Pierre et al. 2000, Scarrow 2006; 2007.
2
Examples are comparative studies of party patronage (e.g. Kopecký et al. 2012), of the tithing of MPs’
salaries (e.g. Bolleyer and Gauja 2013) or the use of special advisers (e.g. King 2003).
3
For analyses of this problem in presidential regimes, see for example Thompson 1995 and Kaye
2005. In consensus democracies, see Nassmacher 2009 and Sickinger 2009.
4
In most advanced democracies the interests of representatives and their parties are closely aligned,
which is why we do not distinguish individual from collective resources (e.g. MPs’ allowances vs.
subsidies for party groups) in our analytical mapping. That said, there are configurations (e.g. of high
intra-party competition (Ireland), or organizationally very weak parties (US)) where a
conceptualization of (potential) party access as a two-step process might be useful (e.g. one resource
transfer from state to parliamentarian and one from parliamentarian to party), since parliamentarians
– when using resources to pursue their interests – cannot be assumed to, by doing so, pursue party
interests as well.
5
This intersection of institutional and political roles and the resulting conflict in the provision of
different public goods underpins Thompson’s concept of ‘institutional corruption’. This concept,
developed in the US context, denotes behaviour such as a Congressman’s tendency to represent the
interests of those constituents with particular eagerness who are also party donors (which in contrast
to the raising of campaign funds is normatively problematic). Such conduct is difficult to pin down
because ‘it is so closely related to conduct that is a perfectly acceptable part of political life’
(Thompson 1995, 7). This parallel further suggests that the tensions between the demands of
institutional and political roles provide the foundation for normatively problematic behaviour (and
the regulatory challenges they imply) exist as much in presidential as in parliamentary regimes.
6
We do not distinguish between regulation that is legally sanctioned and regulation that is not as a
main classificatory criterion because the distinction is – for our purposes - not particularly telling.
While some codes of conduct have a statutory basis, this does not imply that a new offence is
created; one that could function as a particular threat in case of its violation (e.g. the code of conduct
for Special Advisors in the UK). Vice versa, even if rules lack legal status their violation can still have
severe consequences. Parliamentary expenses in the UK were regulated by internal House of
Commons rules (the ‘Green Book’) until the Parliamentary Standards Act made it an offence to
provide false or misleading statements regarding expenses claims. The revelations in the 2009
expenses scandal created such public outrage that MPs were prosecuted for false accounting under
criminal law. The crucial questions - when characterizing the regulatory environment - therefore are
whether it is clear what a violation is (level of specificity) and whether they are likely to be revealed
(type of monitoring).
7
These interviews were conducted between 2009 and 2011 with representatives from the
Department of Finance, the Office of the Special Minister for State, and the Department of
Parliamentary Services (Australia) representatives of the Committee for Standards in Public Life, the
Inter-Parliamentary Standards Authority (IPSA), the UK Electoral Commission, the HoC Standards and
Privileges Committee, former staff of the HoC support facilities and party representatives (UK). These
interviews were mostly recorded (in a few cases interviewees preferred us to rely on handwritten
notes) and lasted on average 45 minutes. Anonymity was assured to interviewees due to the
sensitivity of the issues discussed. To promote accuracy, information on practices of resource usage
were triangulated either across different types of actors (e.g. party representative and regulator) or
across different types of sources (e.g. interview material and official reports assessing rule
compliance) (Aberbach and Rockman 2002).
8
Detailed regulation of resource use that lists purposes, however that also, explicitly allows for
political usage as well, naturally would not qualify as ‘specific’ under this definition, since the
operationalization aims at capturing the specificity of constraints on party-political usage. More
fundamentally, if resource usage is unregulated in the first place, actors, by definition, operate – in
terms of the level of external constraints - under a ‘self-restraining regime’.
9
Another example of the detailed specification of a resource can be found in the regulations
governing ‘Householders’ (mail-outs sent by parliamentarians to their constituents) by the Canadian
House of Commons in its Members’ By-Law (ss 7, 29).
10
Income through the Policy Development Fund is comparatively minor.
23
11In
the 2007-2008 financial year, the total cost of parliamentary staffing was $173.56 million,
comprised of $148.21 million on salaries and $25.35 million on staff travels and allowances (Horne
2009, 18).
12
The equivalent in the House of Lords is Cranbourne Money, introduced in 1996.
13
Also the DUP, SNP, PC and SDLP and since most recently the Greens receive Short Money. See for
details (Kelly 2010a, 15-16).
14
2009-10 the money was divided between seven parties. Labour and the Liberal Democrats each
received £457,324. The Conservatives received £434,580 (Electoral Commission 2013).
15
Select Committee on Public Administration, Examination of Witnesses (Questions 720-735), Ms.
Margaret McDonagh, Professor Keith Ewing, Mr David Prior MP, Mr Stuart Harris, Mr. Nigel Bliss and
Mr Ben Williams, Wednesday 15 November 2000.
16
Select Committee on Public Administration, Examination of Witnesses (Questions 577-599), Mr.
Brian Taylor, Mr. Robert Blair and Mr. Robert Ward, Wednesday 15 November 2000.
17
The comment is as follows: ‘The Committee saw strong parallels between the money spent on
special advisers and the financial assistance given to opposition party for the conduct of their
parliamentary business (known as Short Money). The Committee recommended that consideration
should be given to the establishment of a separate fund, for the support both of special advisers who
cannot be appointed under Civil Service rules and for disbursement of Short Money’ (Public
Administration Select Committee 2001).
18
For the 2010-11 financial year (based on parties’ seat share), this allowance amounted to $10.6m
each for the ALP and Liberal/National Coalition and $491,000 for the Greens.
19
Regulation 3AA of the Parliamentary Entitlements Regulations 1997.
20
While IPSA has taken over main responsibilities in the area of MPs’ expenses, the Standards
Committee is still in charge of cases of misuses of parliamentary estate.
21
Up to 2009 it was called the staffing allowance, up to 2001 the Office Cost Allowance (Lightbown
and Smith 2009).
22
This leaves aside some constraints regarding the hiring of relatives that apply to both British MPs
and Australian Ministers, a restriction that is not directed to the prevention of party-political use.
24
Acknowledgements: The research for this paper has received funding from the
Academy of the Social Sciences in Australia (International Science Linkages Program)
and the European Research Council under the European Union's Seventh Framework
Programme (FP7/2007-2013) / ERC grant agreement n° 335890 STATORG. This
support is gratefully acknowledged. The authors also thank Nicholas Allen, Sarah
Birch and Matthew Flinders for their helpful input on an earlier version of the paper
presented at the UK Political Studies Association Annual Conference in Belfast, 2012.
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30
Table 1: Direct and Indirect Party Funding and Parties’ Functional Roles
Monetary Resources
Non-monetary Resources
Direct Access
(earmarked for
party-political
purposes)
Indirect Access
(not earmarked
for partypolitical
purposes)
Direct State Funding
(for election reimbursement or
organizational activities)
Free Media Access
Free Postage for Candidates
Benefits associated with Party
Registration (e.g. copy of the
electoral roll)
Compulsory Voting
Parliamentary Subsidies
Parliamentary Allowances (e.g. for
staffing, travel, communication)
Tithing of MP Salaries
Parliamentary Facilities (e.g.
research units, IT, library) and
Resources (e.g. free postage for
MPs)
Budget for Government Advertising
Ministerial Allowances (e.g. for
staffing, travel, communication)
Tithing of Ministerial Salaries
Appointments (political and
meritocratic)
Ministerial Bureaucracy
Linked to
Societal and
Electoral
Roles
Linked to
Parliamentary
Roles
Linked to
Governmental
Roles
31
Table 2: Four Types of Regulatory Environments
Self-regulation
External regulation
No/Broad Specification of
Use of Institutional
Resource
Self-restraining Regime
Institutionally Constraining Regime
Detailed Specification of
Institutional Resource
Functionally Constraining
Regime
Constraining Regime
32
Table 3: Regulation of Indirect Resource Use in Australia and the UK
Self-Regulation
Self-restraining Regime
No/Broad Specification
of Use of Institutional
Resource
Detailed Specification
of Use of Institutional
Resource
UK
- Elected Officials’ Salaries (Tithing)
- Parliamentary Estate Facilities
- Parliamentary Research Facilities
- Parliamentary Subsidies
-------------------------------------------Australia
- Elected Officials’ Salaries (Tithing)
- Parliamentary Research Facilities
- Electorate Office Allowance
- Electorate Employees Allowance
- Special Advisers
Functionally Constraining Regime
UK
- Special Advisers
- Government Advertisement
- Public Appointments
(no parliamentary involvement)
--------------------------------------------Australia
- Printing and Communications
Allowance
- Travel Allowance
- Public Appointments
External Regulation
Institutionally Constraining
Regime
Constraining Regime
UK
- Parliamentary Allowances (e.g.
Office Costs Expenditure, Staff
Expenditure)
- Public Appointments
(parliamentary veto or scrutiny)
------------------------------------------Australia
- Government Advertising
Note: For details on the main primary sources, see the Appendix.
33
Table 4: The Regulation of Parliamentary Resources and Leeway for Party-Political
Usage
Regulatory
Regime
Self-Restraining
Resource
Institutionally
Defined Purpose
Leeway for
PartyPolitical Use
Electorate Employees Allowance
(Aul)
Staff Support for
MPs’ Parliamentary
Work
Flexible
Short Money (UK)
Support for
Parliamentary
Minority to Meet
Opposition Function
Communication with
Citizens
Flexible
Functionally
Constraining
Printing and Communication
Allowance (Aul)
Flexible
Constraining
Staff Expenditure (UK)
Staff Support for
MPs’ Parliamentary
Work
Limited23
Office Costs Expenditure (UK)
Communication with
Citizens
Tightly
constrained
34
Appendix:
Main Primary Sources used to Classify Regulatory Regimes1
Australia
Institutional
Resource
Nature
Regulation
of Primary Source(s)
Electorate Office
Allowance
Electorate
Employees
Allowance
Self-restraining
Section 4 of, and item 7, Part 1 of Schedule 1 to the
Parliamentary Entitlements Act 1990
Self-restraining
Special Advisors
Printing and
Communications
Allowance
Travel Allowance
Self-restraining
Functionally
constraining
Determination 2001/Part IV/1 (Determination Regarding
the Employment of Electorate Officers’) made by the
then Special Minister of State under the Members of
Parliament (Staff) Act 1984; Members of Parliament
(Staff) Act 1984
Members of Parliament (Staff) Act 1984
Regulations 3AA(3), (11) of the Parliamentary
Entitlements Regulations 1997
Government
Appointments
Functionally
constraining
Government
Advertising
Constraining
Functionally
constraining
Section 4 of, and item 8 of Part 1 of Schedule 1 to the
Parliamentary Entitlements Act 1990 and Remuneration
Tribunal Determinations 2012/04 (as amended by
2012/15) and 2012/19.
Clause 3.1 of Remuneration Tribunal Determination
2012/04
Annex J, ‘Appointments Process’ of the Cabinet
Handbook (7th Edition, Department of Prime Minister
and Cabinet).
‘Guidelines on Information and Advertising Campaigns
by Australian Government Departments and
Agencies’(Department of Finance and Deregulation)
Relevant secondary source: Horne (2009).
1
Two resources listed in Table 3 are not covered in this sources table. Tithing – representatives
regularly and in principle voluntarily donating a fixed share of their salaries to their parties – is an
intra-organizational practice. Thus, the regulatory regime is by definition self-restraining because the
use of salaries as private property is not ‘institutionally earmarked’. Similarly, parliamentary research
facilities, e.g. parliamentary libraries and the Scrutiny Unit in the UK HoC (see Scrutiny Unit 2008),
which provide a collective support structure for developing or assessing legislation (a core
parliamentary task), is by default self-restraining. Legislation always (at least to some extent) reflects
party policy, and regulating the use of resources such as the library or institutional support for doing
research to gather information as either a ‘parliamentarian’ or a ‘party politician’ is impossible.
35
United Kingdom
Institutional
Resource
Parliamentary
Estate
Facilities
Short Money
Nature
of Primary Source(s)
Regulation
Reg. 5.5, House Banqueting Regulations, 13 December 20002
Self-restraining
Functionally
constraining
Functionally
constraining
Art 3 (1), Short Money Resolution, 26 May 1999
Art. 4, Code of Conduct for Special Advisors, Cabinet Office
June 2010, Constitutional Reform and Governance Act 2010,
(8), (11)
A Brief Guide to Propriety in
Government
Functionally
Government Communications; Propriety Guidance (Cabinet
Advertising
constraining
Office)
The Commission for Public Appointments, Code of Good
Government
Functionally
Practice for Ministerial Appointments to Public Bodies, April 1
Appointments constraining
20123; The Commissioner for Public Appointments: Regulated
Public Appointments: What you need to know, November
2009
Annual Review of the MPs’ Scheme of Business Costs and
Parliamentary Constraining
Expenses: Fourth Ed., April 2012, IPSA. Art. 3.2-3.3 list specific
Expenses
criteria for resource usage applicable to the expenses
regulated under the scheme4 (further details provided when
particular expenses discussed)
Relevant secondary sources: King (2003); Flinders (2009); Allen (2010); Kelly (2009); (2010); Maer
(2011).
Special
Advisors
2
See also Standards and Privileges Committee (2007).
See on this also: Ministry of Justice (2008), Liaison Committee (2008).
4
These include the Office Costs Expenditure, Staff Expenditure, Travel and Subsistence,
Accommodation Expenditure, London Area Living Payment, Start-up and Winding-up, Miscellaneous
and Financial Assistance.
3
36
23
While regulation is specific and monitoring is strict regarding what staff can do on a contractual
basis, the MP still has control over who he or she hires, which opens up the opportunity to use these
positions as reward for party work.
37