Campaign funding rules are a solution looking for a problem

Conversations about the link between corruption and elections show that many people are convinced that money made from corruption is often used to fund elections.

Having reached this conclusion, people then make the big leap that restricting the amount of money candidates spend in campaigns is sensible public policy.

In addition, article 88 (i) of the Constitution specifies that the Independent Electoral and Boundaries Commission (IEBC) should regulate the amount of money spent by political parties and individual candidates who contest elections.

The idea behind this provision is to make elections as clean and as open as possible by reducing the effect of money on the outcomes.

To be fair, this belief is widespread, except that in the United States, it is argued that expenditure on elections makes candidates beholden to a few wealthy families, business lobbies and special-interest groups while diminishing the quality of democratic discourse.

The IEBC pointed Kenyans to its work in drafting the Election Campaigns Financing Regulations of 2016. Because I received a nudge to comment on the regulations, I have to oblige.

My view is that public institutions should be careful about trying to earn public respect by drawing out and trying to implement regulations and manage matters that lie in the domain of politicians.

UNIMPRESSIVE OUTCOME

Hence I am sceptical that the regulations will qualify as good policy, because while the Constitution and the Elections Campaigns law both contemplate these rules, the outcome will be unimpressive.

To begin with, there is little evidence that restricting the sources and funding available to parties or candidates during political contests contributes to any public good and democratic development.

While it is true that the quest to hold public office in Kenya comes with competition, it does not mean that the only way to prevail in that contest is by outspending challengers.

An influential study in United States found that money does not influence electoral outcomes as is commonly believed. The finding is that better campaigners attract more donations within an open and less corrupt electoral system.

The regulations not only impose new costs on contestants and parties by creating structures, reporting schedules and limits on spending by each position. They also insist on monitoring these when elections are under way along with the attention needed to make sure everything else goes right.

MANAGEMENT FIASCOS

Given the background of management fiascos in consecutive elections, the IEBC should not have fallen into this trap of trying to monitor all spending by every contestant.

Even if we allow that there may be a legitimate reason for setting limits and forcing regular reporting on campaign expenditure, it is still unlikely that this would achieve the social goals being pursued.

For a fledgling democracy with a new Constitution, it is sensible to try to prevent politicians from acting in the interest of those who fund their election campaigns. This intention is important because legislators, governors and the president should not use their policy-making authority to the benefit of their campaign funders.

In spite of this legitimate interest, Kenya history suggests that people work in the public sector, acquire enormous wealth by perverting the procurement processes and then try to get elected.

On the other hand, few people with fortunes acquired through legitimate ways ever make the decision to spend it on seeking political office. For that reason, the effect of the corrupt using money to fund their election means that it is not useful to spend public money after the corruption has occurred.

CLEAN CONTESTANT HARMED

So restricting candidates from using their money to try to earn an electoral seat is a constraint that is more harmful to the clean contestant. This artificial limit just ensures that the corrupt campaigner will never be outspent by a more honest competitor.

In that sense, the constraint on spending means the dishonest politician can calculate the threshold for his dishonest gain and keep aside the sum that the IEBC has determined as the ceiling. It is the clean campaigner who has the burden by having to work harder to compete.

The existing law and the IEBC regulations do nothing to prevent the corrupt from running, circumventing rules and possibly winning an electoral contest.

While the IEBC should not bear blame for this law, whose results will be unbelievably difficult to find, to draft elaborate regulations for a law whose implementation will achieve nothing also takes lots of chutzpah.

The problem of corruption of the policy processes through campaign finance is real but that does not mean that it should be solved by creating a difficult process that will be prone to misrepresentation and is likely to cause conflict between the IEBC and candidates.

Every fair observer will worry that campaign finance regulations are normatively good but unworkable.

Kwame Owino is the chief executive officer of the Institute of Economic Affairs (IEA-Kenya), a public policy think tank based in Nairobi. Twitter: @IEAKwame