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Section Four. The use of the doctrine of `agency' to regulate unauthorised campaign expenditures.
The doctrine of `agency,' like the financial deposit, is a device associated mainly with countries influenced by the British model. `Agency' is a device intended to make easier the enforcement of regulations related to financial disclosure and statutory limits on permitted campaign expenditure. Since the candidate is likely to be engaged to the political tasks of his campaign - giving speeches, meeting electors and so forth - he puts the responsibility for the finances of the campaign into the hands of a single campaign assistant, the `agent'.
Essential to the system is, first, that no significant expenditures may be incurred by members of the candidate's campaign team or by his local party organisation without the authorisation of the agent. This is meant to prevent supporters from exceeding the legal limit `accidentally on purpose' (i.e. in reality on purpose but, if discovered, supposedly by accident and without consultation with the candidate).
Second, the system of agency does not remove from the candidate the responsibility for significant wrongdoing by the agent. Since the agent is specifically appointed by the candidate, the candidate is not free from penalties if the agent authorises spending above the legal limit or if the agent indulges in illegal practices.
The main legal guide to elections in Britain expresses the (complex) legal situation as follows (the references in brackets are to past law cases):
19.19 Relationship of candidate and agent
Once created, the relation between the candidate and his agent is much more intimate than that which subsists between the principal and agent at common law (Harwich , 3 O'M & H. 69)...
The candidate is responsible, so far as his seat is concerned, for all the acts and misdeeds of the agent committed within the scope of his authority (Harwich , 3 O'M & H. 69). This principle applies even though the candidate may not intend such acts to be done, and even did his best to hinder them (Taunton, 1 ib. 182; Great Yarmouth, 5 ib. 179); or even though such acts were done contrary to, and in defiance of, his express orders (Lichfield, 1 ib , 26; Harwich, 3 ib. 69).
The reason for this stringent law is that candidates put agents forward to act for them. If it were permitted that these agents should play foul, and that the candidate should have the benefit of their foul play without being responsible for it in the way of losing his seat, great mischief would arise (Stalybridge , 1 ib . 67). No one can win And wear a prize on whose behalf the contest has not been legitimately and fairly carried on; the principal must suffer, and cannot hold the benefit in respect of that in which his agent has compromised him ( Blackburn , 1 ib . 202; acc . Coventry , ib . 107).15
A classic, though dated, study of political financing laws mentions the following countries as having a doctrine of agency: Australia, Britain, Canada, and Ireland.16 Along similar lines a feature of public disclosure of campaign finance in the United States is that political committees and candidates must appoint a `treasurer.'
Specific legislation relating to the doctrine of agency in Canada is contained in one of the items which the author of this paper deposited in December 1997 with the resource center of IFES, Moscow. This is: Canadian Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy: Final Report. Ottawa: Communication Group Publishing, 1991, volume 3. Among the paragraphs of legislation and proposed legislation included here, are the following. They are not intended to give more than an impression of the fairly long list of rules pertaining to the agent and his duties:
341. In addition to registered parties, registered constituency associations and candidates, every person seeking nomination as a candidate by a registered constituency association ... shall appoint a financial agent.
342. ... (3) No person shall have more than one financial agent at the same time...
347. (1) Financial agents shall be responsible for administering, in accordance with this Act, the finances of the person who appointed them ...
349. (1) No person except a financial agent or person authorised in writing by a financial agent shall make a payment in excess of $50 on behalf of a registered party, registered constituency association, candidate, ... as the case may be...
360. (1) No registered party or registered constituency association shall incur an election expense except through its financial agent or a person authorised by the financial agent.
(2) No candidate shall incur an election expense ... except through the candidate's financial agent.
15 Parker's Conduct of Parliamentary Elections, August 1990 edition.
16 Khayyam Z. Paltiel, `Campaign Finance: Contrasting Practices and Reforms.' In Democracy at the Polls: A Comparative Study of Competitive National Elections. Edited by David Butler, Howard R. Penniman and Austin Ranney. Washington, DC: American Enterprise Institute, 1981, table 7.1.
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