Monday 7 October 2013

Gagging, the Koch brothers and 38 Degrees

I showed my face at two of the party conferences this year, and I won’t say which one I was at on this occasion. But I heard an MP refer to what he called “the curse of 38 Degrees”.

For the uninitiated, 38 Degrees is a powerful campaigning platform, on the American model, that allows people to sign up for campaigns and to send emails to recalcitrant MPs or anyone else.

It claims to have achieved some amazing things, including the provision of free school meals. Extraordinary – and all this time, I was under the naive impression that Nick Clegg and team had been working on how to make that happen.  Apparently not.

I have taken part in some 38 Degrees campaigns. I knew the people who set it up. I even helped by advising them in its early stages.

But there clearly is a problem if MPs regard the process as a curse, when tens of thousands – maybe more – emails arrive in their in-boxes.

The problem isn’t around campaigning. It is the worry I have that none of my emails have ever been answered, and a nagging fear that they may actually be counter-productive or, more specifically, mistargeted.

On the occasions when I happen to know about the politics behind one of their campaigns, usually when it is directed at Lib Dem MPs or conference representatives, the political intelligence behind it is staggeringly inadequate. I don’t know about the other campaigns, but I worry about it.

I suppose it is my fault too. I know how few staff there are at the heart of the 38 Degrees machine.  Perhaps I should have picked up the phone and advised them again, but there is something about their raucous tone that now prevents me.

But here is why I’m writing about it now. Because I have just received another message from 38 Degrees urging me to give them money to help them campaign against what they call the ‘Gagging Law’, actually the Transparency Bill now going through Parliament.  Their description of the position is farcical.

And this is where my sympathy has finally expired, because it represents not just a misunderstanding – but a dangerous one, and one that will do nothing to prevent American-style oligarchs intervening in UK elections as they have in US ones.

As I write, the government has agreed – as they said they would – to make sure there is no misunderstanding, and to return the definition of ‘political activity’ to what it has been since 2000, when the Labour government first introduced the definition (but including rallies with an electoral purpose).

This is how John Thurso put the case, given that the changes he asked for have now been agreed:

"First the government has agreed to retain the existing definition of what non-party campaigning actually is: that is, activity that can “reasonably be regarded as intended to promote or procure the electoral success” of a party or candidate. Secondly, they have reverted to an existing definition of what constitutes 'election material', on which there is long established Electoral Commission guidance. These are crucial concessions, since those definitions have been in play since 2000, and no charity or non-party campaigner has ever claimed they were 'gagged' as a result."

Most charities operate under regulations from the Charity Commission which prevent them from getting involved in elections, and always have done, and it never stopped them from campaigning on the issues they care about whenever they need to. Nor should it.

I've got to be fair here.  38 Degrees have made the running, but they are backed by charities like NCVO and others.  I've read their briefings and I don't understand how using the existing definition will make the law any more ambiguous, but I do accept there is some existing ambiguity which this bill doesn't clear up.

So you might reasonably ask why the UK should have legislation about electoral activity by non-candidates at all.  The answer is summed up in one word: Koch.

The reason why this is so important is because of the Koch Brothers and their activities funding ultra-conservative election support in the USA, and those like them.

They set up lobby groups and non-profits to intervene, most of them well below the radar – but tax returns show that they spent $230 million in local interventions in the USA in the year before the last presidential election, and that was just through one of their organisations.

Look at the government shut-down, the blinkered oppositionism that has degraded American politics at federal level. That isn’t just about the Koch brothers, but we don’t want it here – we don’t want an open door to every oligarch who thinks they can intervene in our elections.

But 38 Degrees appears not to be bothered about that, as if somehow – if Koch UK was to land here – someone would rush in a law to prevent them. Some hope.

I’m not saying that they are somehow in league with Koch-style conservatism. That would be stupid. But they are being unbelievably naive – or they listened to the wrong people. Or something.

I know the bill doesn’t go far enough to rein in the lobbyists.  But the last thing we need in this country is shadowy Koch-like figures among the ultra-rich intervening in constituencies for elections and using their considerable wealth to do so.

Why doesn’t 38 Degrees? And why don’t they see that, if they allow themselves to become so politically partisan - as they are doing - they are more easily dismissed as a ‘curse’ and their power, such as it is, will slip through their fingers?

Which is a pity, because it is a good idea - or it ought to be.


James Graham (Quaequam Blog!) said...

There is a big communication problem here but it is entirely of the government' own making. This is what happens when you farm out a major piece of constitutional change without bothering with a consultation first. Much of the legal advice remains the same: that the bill is poorly drafted and will cause immense confusion, the cost of which (in terms of legal fees) will come out the limited resources of campaign organisations' pockets.

The scenario you illustrate is a fanciful one in the UK context because no major funder would bother setting up a dummy campaign group when they could achieve the same effect far more efficiently by either funding an existing political party or setting up their own. In that case the spending limit is £20 million and there is no cap on donations. Yet the government has no interest in regulating either of those factors, so the idea that they are attempting to stop the pernicious influence of money in politics is entirely unconvincing.

In reality, it is entirely possible to thrash out legislation that will enjoy broad support. All the government has to do is operate an open consultation process on the subject and attempt to operate on the basis of cross party support; something it has insisted on all other forms of election regulation. The fact that it has point blank refused to do this is not at all reassuring.

David Boyle said...

Good points, and I agree that it is ludicrous that there is no cap on political donations. But I don't agree that the Koch scenario is fanciful. The Koch campaign operates outside political parties, and there is another worry when oligarchs start taking sides within political parties (like recent examples, but going back to Lloyd George). If 38 Degrees could campaign on amending the bill to include a cap on political donations, rather than the current scaremongering, I might have more time for them.

Howard Alleway said...

I have supported 38 Degree's with campaigns. I have had replies from my local MP on issues raised! If they are saying its a problem, then I would say its working well as a lobbying platform! The MP's in question need to sort out there issues, not blame us for lobbying them over there stupid ill thought out ideas...

Simon said...

I find it surprising that you would ever have thought 38 degrees such a good idea? Perhaps I am biased since I have never used it, but it always seemed to me to be an attempt to reduce politics and campaigning to the mere process of clicking on buttons. Is it really anything more than a fancy IT system that, whilst it does have plenty of room for user input and voting, produces digital content as an end in itself?

My other concern is that it tries to cover such a wide range of political issues without engaging at all in the political process directly. This kind of creates the impression that these people are the good guys who necessarily have the moral high ground. That may be very handy for making people feel better bout themselves (and the world), but it hardly seems a very good starting point for getting things done.

But then as I say, I may be biased.

James Graham (Quaequam Blog!) said...

If this article is anything to go by, I have less time for 38 Degrees than you do, David. And I've just left a job at Unlock Democracy in which I spent 9 long, frustrating years campaigning for a donations cap. 38 Degrees have actually called for such a cap in the past, but the parties - especially the Conservatives - are not interested in even discussing one at the moment, so what is the point in fighting on that issue?

Even if I accept your premise that the Koch brothers or their equivalents are hiding under the bed waiting to undermine our political process, I still don't understand how that is relevant when others can "legitimately" buy the political process simply by funding parties directly. Is that somehow more respectable? How? And how does that justify draconian legislation for small community groups and the voluntary sector?

One of the frustrating aspects of this legislation is the smoke and mirrors. Currently, for example, we have not seen the amendments that the government has been trailing in the press. If the reassurances of the past few months are anything to go by, we'll only actually know if what Thurso is claiming is actually true once we've seen the actual text of the amendments (after all, he's talking about replacing clauses which not a single member of the government have accepted are flawed in the first place).

I'm personally very happy that 38 Degrees are keeping up the pressure on this one. For once they might actually end up making a positive difference, rather than simply claiming credit for everyone else's work.

James Graham (Quaequam Blog!) said...

You might find this briefing from Ros Baston helpful:

Ros is one of the few solicitors to specialise in election law in the country and was widely respected across the political spectrum when she worked for the Electoral Commission. Her views are not to be dismissed.

David Boyle said...

I did read Ros Baston's briefing before writing the post. I understand her explanation that the bill leaves some ambiguities. What I don't understand is why these ambiguities are any greater than they are at the moment under current legislation.

I agree with you about the funding of political parties.

Alex Runswick said...

As someone who has spent the Summer trying to assess the implications of these proposals for Unlock Democracy I think these proposals will have a real chilling effect on campaigning. There are a number of reasons the ambiguities will be greater than in the current legislation:

1. There has been no consultation and virtually nor scrutiny of these proposals. As the Electoral Commission have commented in their briefing on the government amendments, they simply haven't had time to test what the implications of some of the changes will be.

2. lowering the threshold at which organisations have to register with the Electoral Commission means that many more organisations, particularly smaller organisations, will be covered by these regulations and because of the speed at which they are being introduced, they will have very little time to prepare. In that scenario, with the potential of very serious sanctions if you get it wrong, many organisations will simply choose not to campaign.

3. The change in the definitions about what constitutes public materials will need to be legally tested. At the moment if you are sending materials to existing supporters who the organisations has a relationship with, that activity is not covered. Under the new rules it will be unless they are a formal member of the organisation. Many campaigning organisations have supporters who respond to our campaign actions and even give us money but for a variety of reasons choose not to be a member. Are they a 'section of the public' as defined in the bill? So fare no one including the Electoral Commission who are supposed regulate this have a clear answer.

I could go on about the ambiguity in this bill but there are bigger issues with it. In particular that it will effectively stop coalition working. There are already rules to do with this but because the spending limits are high it doesn't stop organisations working together. Cutting the spending limits by more than half and including staff costs within them will mean that organisations sill stop collaborating which is bad for democracy and transparency. I also find it difficult to understand why non party campaigning is being regulated in a far more stringent ways that political parties. Others have already made the comment about party funding and the need for a cap on donations. But as the bill stands non party campaigners will have to include staff costs when calculating their campaigning expenditure despite the fact that this was thought to be too burdensome for political parties and they will also have to include any opinion polling despite the fact that this is not a regulated activity for political parties.

It is absolutely right that third party campaigning should be regulated but it needs to be properly thought through. Where is the evidence base for these proposals? Why do we think these spending limits are the appropriate ones to prevent abuse but allow for freedom of expression?

Gordon said...

I too have misgivings about 38 Degree's approach to politics but having said that they have raised several issues where the LD element of the Coalition has simply been AWOL - stealth privatisation of the NHS for instance plus this 'Transparency' Bill.

The first thing that struck me on reading the Bill was how monstrously unbalanced it is with nothing to say about corporate lobbying (and, yes, that could include the Kochs (who would not need to resort to faux community groups with Orwellian names as they do in the US) but lots to say about charities and community groups.

Worse than that, changes to definitions and limits makes it at the very least contentious w.r.t. the likely impact on community groups. This is playing with matches in a firework factory. Why?

Also, the Bill's provisions about consultant lobbyists will be laughably easy for large companies to drive a coach and horses through - e.g. by taking lobbyists onto their payroll for a limited time.

All in all it's a wet dream for the corporatist wing of the Tory Party.

Simon Titley said...

Leaving aside the funding and legal issues, there remains the political question of the indiscriminate scattergun approach to lobbying, which tends to alienate its targets.

One wonders about the political judgement of people who organise these counter-productive campaigns.

For example, I have just been reading the customer reviews on of Mary Berry's "Complete Cookbook" ( It has received 247 negative 1-star reviews, all from people complaining about the inclusion of a recipe for shark, an endangered species. The wording of these reviews is very similar, which suggests an organised lobby. After ploughing through a few dozen of these reviews, I increasingly felt like asking at Morrison's fish counter whether I could buy any shark.