Technology has changed the nature of campaigns yet regulation has not kept upby David Allen Green / October 6, 2019 / Leave a comment
Law seeks to regulate political activity in many ways. Sometimes the interplay of law and politics is dramatic. For example, in the US, the ancient legal weapon of impeachment looks as if it may be deployed against the sitting president. Back at home, in September, the Supreme Court of the UK declared that a parliament had not been prorogued and that a prime minister had been unlawful in advising the sovereign.
But there are many more mundane overlaps between law and politics that are just as significant. Take the increasingly urgent question of the legal controls on election campaigning and finance. Especially with a general election looming, it is worth pausing on them. Trans-border flows of information and data, in particular, have overtaken electoral laws designed for a different era.
In the UK this has been most evident in the ongoing fallout from the 2016 EU referendum campaigns. Over three years later there are still concerns unresolved and abuses unaddressed. Had that referendum been legally binding, as opposed to merely advisory, there is little doubt the result would by now have been set aside. As the result was regarded as binding only in a political sense, the problems in the campaigns have had no formal effect on the government’s resolution to give effect to the supposed “people’s will.”
In the US the irregularities in respect of Trump’s campaign and its connections with Russia similarly did not have any direct legal consequences. Robert Mueller’s report came and went this spring, and provided more than enough material for impeachment (and, if Trump was not in office, an indictment) in respect of obstruction of justice. But for political reasons no impeachment seemed viable then (and Trump managed to switch the conversation on to horrors that weren’t in the report instead of those that were). The result of the 2016 presidential election was not affected and the candidate who won the electoral college (if not the popular vote) simply continued in office.
The consequences of both these 2016 votes were momentous. Two of the wealthiest and most powerful nations on Earth are having political breakdowns brought about by the results of dubious ballots, and in both situations there has been little or nothing that the law could do about their consequences. Political problems should, where possible, have political…