“Formalism and Realism in Campaign Finance”

Jacob Eisler has posted this draft on SSRN (forthcoming, Cambridge Law Journal). Here is the abstract:

R. v MACKINLAY [2018] UKSC 42, [2018] 3 W.L.R. 556 addressed a narrow question of statutory construction, with implications for two weighty influences upon elections: party support of local candidates, and campaign funding. The case considered an interlocutory pure question of law for an ongoing criminal prosecution. The Supreme Court imposed statutory reporting restrictions and answered the legal question without applying its conclusions to the specific facts of the case. Nevertheless, the facts are important for the general substantive context. In issue was whether a candidate must explicitly authorise campaign resources that are provided to the candidate gratis (“notional expenditures”) for the resources to qualify as candidate “election expenses” under the Representation of the People Act 1983 (RPA). While Mackinlay rightly concluded that such notional expenditures do not require authorisation to be treated as candidate election expenses, the Supreme Court undertook a tortured reading of statutory language to avoid engagement with substantive political realities. Its unwillingness to face these underlying issues may in time undermine the regulatory regime.

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