3.3.2 Enforcement

General principles

Where an investigation identifies a breach, and the responsibility for taking enforcement action lies with the oversight body, you should have a separate process to consider the facts of the case, take into account all relevant factors, and reach a decision on the appropriate enforcement action to take.

As with investigations, any person who works on the enforcement action should be able to declare that they have no conflict of interest (see UK electoral commissions conflicts of interest template for investigations.pdf).

To show that enforcement action is not taken simply for its own sake or for party political reasons, it is helpful to have clearly defined objectives for the actions you take when breaches are identified. As far as possible, you should publish those objectives, so that those who are subject to regulation and the wider public can see them.

Elements that should be considered:

3.3.2.1 Objectives of enforcement action

It can be helpful for the oversight institution to have objectives for enforcement action. These could be published. Objectives can provide the basic justification for enforcement action, to avoid the suggestion the institution is just taking action because it is biased against a party or individual. Any action should be intended to achieve at least one of the objectives. You should establish your own appropriate objectives in terms of enforcement action based on the relevant law and priorities of the oversight institution, but some examples might be:

  • To ensure that confidence in the regime is maintained
  • To eliminate any benefit gained from a breach
  • To deter further breaches by the organisation in question, and to deter others as well
  • To seek fair and impartial enforcement when the law is violated.

3.3.2.2 Proportionality and deciding which factors to consider

Any decision on enforcement action should take account of the principle of proportionality - this means taking enforcement action that is appropriate and will achieve your objectives, but not action that goes beyond that. Disproportionately strict enforcement action risks challenge, creates the appearance of partiality or inconsistency and can be a blow to political pluralism. It should in all decisions be remembered that "Political parties are critical institutions through which citizens organize themselves to participate in public life, among which they choose at elections, and through which elected officials cooperate to build and maintain the coalitions that are the hallmark of democratic politics." On the other hand, disproportionally light sanctions may signal to political actors that they can violate regulations without significant consequences. This can be particularly noticeable in cases where receiving large prohibited donations can only be sanctioned by small fixed fines. 

One recommended approach for ensuring that proportionality is respected, if the relevant law allows, is to prescribe ranges of actions or fines for particular types of breaches or violations. Alternatively, you can consider each case individually and begin by looking at the least severe form of action first to determine whether it meets your enforcement objectives. If not, then move on to the next level of action, and so on until the level is reached at which the relevant objectives are likely to be met. You should always consider taking no enforcement action at all as the first option - as there may be instances when no action is necessary to achieve your enforcement objectives. For example, where a new party has just registered and makes minor inadvertent errors in, for example, a donation report, you may be able to achieve your objectives by providing guidance to the party, without the need for other action.

Deciding on the most appropriate action will always depend on the specific circumstances of a case, and no two cases are likely to be identical. It is not therefore possible to set out all of the factors that will be relevant in any particular case. Below, however, are some factors that will often be relevant. As with objectives, it is helpful to publish these in the interest of transparency. Assuming that this is permitted by legislation, you may wish to take into account some or all of the below factors (reproduced from page 303, Chapter 10 on Campaign Finance Remedies by Megan Ritchie and Magnus Ohman in the ABA book on International Election Remedies).

Consideration Proportionality guideline
The monetary amount involved in the violation Receiving a very large prohibited donation should carry a tougher sanction than receiving a small donation from the same source.
The impact of the violation on democracy and public confidence in the political system A technical infringement with no direct effect should carry limited sanctions, while widespread violations (such as vote buying) that threatens the fairness of an election should carry severe sanctions.
Gain resulting for the violator Any gain, financial, electoral or otherwise, resulting from the breach
If the violation was committed intentionally While ignorance of the law may not be an acceptable defense, intentional violations should be sanctioned more severely.
If attempts have been made to hide the violation Actors who report possible (minor) violations themselves should not be sanctioned, if there was no intent to violate the law. However, those who have attempted to hide violations should be sanctioned more severely than those who have not. In addition to whether the actor reported the potential violation, the level of cooperation shown during an investigation may also be taken into account.
If the violation is a repeat offense Actors who continue to commit violations should face more severe sanctions.
If the actor has refused to abide by earlier ruling Actors who refuse to abide by earlier rulings (for example, to return a prohibited donation) should be sanctioned more severely.
Possible detrimental impact on the democratic process or pluralism of imposing the sanction In some cases, a remedy may be appropriate based on the severity of the violation and its potential impact on public confidence in the electoral system, but imposing the remedy would negatively impact the democratic process (for example, if imposing a particularly large fine would bankrupt a political party).

3.3.2.4 Types of enforcement action

The available options will depend on the local regime, and these may vary significantly. Sometimes the legislation will set out specific enforcement actions for various breaches, in other instances you may have discretion to determine the type of enforcement action to take. In general, the two most common types of enforcement action are fines and powers to require particular action (e.g., return of donations or improvements to systems). We will call these 'directions'. Depending on the regime, it may be possible for you to use fines and directions in combination, or it may be a matter of choosing between them.

In some regimes, where there is significant public funding of political parties, another option might be suspension or disqualification from receipt of public funds for a period of time. In some regimes an individual who commits a breach or offence might be barred from holding office or being a candidate for elected office for a set period. Another possible option, where political parties or other organisations must be registered, is removal from the register. Deregistration is a very serious action with potentially severe consequences for political pluralism and, if it is an option in your jurisdiction, it should be used only in the most exceptional of circumstances.

Directions

Directions requiring specific actions to be taken can be helpful in ensuring that any loss of transparency is corrected, and in requiring organisations to improve their systems and procedures. Similarly, requiring the training of officers or requiring periodic audits are other options that can lead to better compliance in future. When using directions it is essential to ensure the required actions are very specific, clearly explained, and subject to a set timescale. The failure to comply with a direction should generally lead to some further form of enforcement action.

Fines and levels of fines

Fines can be helpful in deterring further breaches, both for the subject of the investigation in question and others. They may to some extent help to eliminate any benefit from the breach. They are unlikely however to ensure that any loss of transparency is corrected. There is also a danger that where a breach arises from oversight or other inadvertence, a fine could mean the organisation spends money paying the fine that could have been invested in improving compliance. Of course, where the breach involves illegal funding or expenditure, fines exceeding the illegal amount (coupled with disgorgement, where appropriate) may be necessary to avoid the penalty being seen as just the cost of doing business.

The local regime may set specific fines for particular breaches, or it may set a range of monetary penalties with a maximum level fine that can be imposed. Where there is range, the oversight body will need to establish criteria for determining the level of a fine to be imposed. In some countries, the oversight body may have a set formula for calculating fines. In the USA, for example, the Federal Election Commission has published a penalty calculator for late submitted reports. This can be helpful for routine violations that are easily quantifiable and result from genuine mistakes or oversight. In other countries such as the UK, the oversight body determines the level using the same proportionality approach as set out above to ensure that the level of fine is enough to achieve the relevant objectives, but not more.

Decisions

As with investigations you should make a clear and detailed written record of your decision, and the reasons for it, with all relevant analysis. The record should show that all relevant factors were considered, including all of those the oversight body has included in any policy or procedure. Where a factor was not considered relevant, you should record this as well.

Imposing directions and fines

The local regime may set out procedural requirements for imposing directions and fines, which you must comply with to avoid challenge. If you have discretion, it is important that the subject of the direction or fine be given an opportunity to challenge or make representations on the decision to make the process open and fair. This may involve an opportunity to comment before the decision is finalised, or a right of appeal afterwards, or both. In some regimes the right of appeal is to the courts or another body separate to the oversight institution, which adds a further check to the oversight institution's decision.

Publicising investigations and enforcement action

A tricky question concerns what information you should disclose about investigations and enforcement.

It may sometimes be appropriate to make public the opening of investigations, but there are also risks to the integrity of the investigation and questions of fairness to the subject(s) of the investigation. However, even where the commencement of an investigations is proactively made public or confirmed in response to press inquiries, it is good practice not to disclose any information about an investigation whilst it is in progress. To do so increases the risk that information in the public domain may lead to evidence being altered or destroyed, or witnesses being reluctant to provide evidence. It also increases potential prejudice to the subject (in particular if done before Election Day). And, you may find yourself having to spend time responding to press questions about the investigation rather than progressing the investigation itself.

It is good practice to make public the outcomes of investigations, whether a breach is found or not and whether enforcement action was taken or not. It is beneficial to be transparent about your enforcement actions for which you should be accountable. This type of transparency in essential to fostering public confidence that matters are properly investigated, reasoned decisions reached and those who fail to comply with the law are held to account. Finally, since enforcement action is intended to deter non-compliance by others, it is necessary for them to know that action you have taken against wrongdoers.

It is highly advisable to have a well-developed, published disclosure policy to address what information you will release about investigations, when you will release that information and in what form. Such a policy will ensure there is clarity and, provided you adhere to the policy, it can help negate allegations of bias or unfavourable treatment.

The UK Electoral Commission's disclosure policy is published as Appendix B to its Enforcement Policy.