Wolfgang C Müller & Ulrich Sieberer. Handbook of Party Politics. Editor: Richard S Katz & William Crotty. 2006. Sage Publishing.
What is Party Law?
Party law can be understood as legislation specifically designed to regulate the life of party organizations. Alternatively party law can be defined as the total body of law that affects political parties. In the former case party law is a clearly defined body of law that may exist or not in specific countries. In the latter case some parts of the legal order, such as family law, are likely to be irrelevant to the organization and activities of political parties (except, of course, policy-making), but a vast territory remains. In this contribution we try to steer a middle way between these two extremes. In the theoretical sections of this chapter we address issues of party law in a more general sense. In the empirical sections we focus on the legal regulation of extra-parliamentary party organizations, parties as electoral organizations, and parliamentary parties.
Party law can be derived from the main constitutional texts and other constitutional law (where such a category exists), special party laws, those laws and regulations that govern elections (electoral laws, campaign regulation), parliamentary organization, political finance, other political activities (e.g. organizing demonstrations), and/or laws that regulate the activities of voluntary organizations in a more general sense. Party law also can be found beyond the confines of the nation state. European Union treaties have already explicitly recognized the important role of political parties. More detailed legislation (Regulation (EC) No. 2004/2003) was enacted in 2003 (with the generous rules on party finance coming into force only after the 2004 European elections).
However defined, party law is the domain of academic lawyers. Political scientists, while interested in the substance of party regulation in some selected fields, in particular with regard to elections and party finance, have not devoted much attention to party law as such. Geographically, Germany is the heartland of party law. As we show in the empirical sections of this chapter, there is no democratic country in which political parties are subjected to more detailed explicit regulation. This fact has triggered a wealth of academic publications, many of which originate from a research institute for the study of party law (now located at the University of Düsseldorf). While most of these publications are ‘hard core’ law studies and delve into details of German party law, an increasing part is devoted to comparative themes, mostly with a focus on Western Europe. Likewise, this chapter mainly relates to party law in European countries (for the United States, see the chapter by Lowenstein). It aims to map the universe of types of party regulation rather than provide full coverage of individual cases.
In this chapter we are mainly concerned with the formal and de facto recognition of political parties through the legal order. A formal recognition—or ‘authorization’ (Pedersen, 1982)—means that a political party assumes a legally defined role in the political system and is formally recognized by the state. It is relevant to the extent that only a party (in the formal sense) enjoys specific freedoms and/or can perform specific functions and/or have access to resources of some kind. A de facto recognition provides the same benefits as official recognition but without requiring the party to go through an authorization process. However, the party will have to fulfil specific criteria in order to win the benefits that result from de facto party status.
Why Party Law?
Why would the state privilege political parties? One answer is based on power. Political parties have established themselves as the engines of the political process in the 20th century. It is parties that breathe life into the formal institutions of government and hence make the rules for themselves. In a democracy however, parties need to legitimize their claim to a privileged position in the political process. Historically, the prominent role played by parties in operating the institutions of democratic government was heavily contested (Daalder, 2002). Yet, beginning with Hans Kelsen (1929), political parties have increasingly been considered as playing a necessary and valuable role in the democratic process (Schattschneider, 1942; Ware, 1987). Specifically, parties are trusted to provide democracy through inter-party competition and by being vehicles for political participation via intra-party democracy between elections.
Party law can take it for granted that political parties fulfil these functions (hence no specific regulation is required to arrive at these ends). Alternatively, party law can contain regulations that are designed to make the parties actually live up to these democratic claims. Finally, any regulation can be perverted. Rather than promoting democracy, party law can serve the partisan needs of incumbents.
The mainstream of democratic theory puts a premium on inter-party competition as a means of democracy. Yet, competition is an ambiguous concept, involving potentially conflicting dimensions (Demsetz, 1982; Strøm, 1989; Bartolini, 2002). It relates to the behaviour of parties, voters, and the institutional environment in which parties interact with each other and with the voters. In short, parties compete with each other if there is conflict of interest, that is, the gains of one party are the losses of another. This relates to vote shares, offices and policies (Dahl, 1966). Not all of party behaviour aims at winning at the expense of other parties. However, if no party behaviour falls into that category we have perfect collusion and no competition. With regard to voters, competition requires availability, that is, flexibility in demand. Hence voters react to party behaviour (past record, future promises). Finally, competition requires contestability that is, an open electoral market, so that new parties can enter the race. While political institutions in general have the greatest impact on the ease of entry and conflict of interest dimensions of party competition, party law specifically impacts mainly on the former.
Entry takes specific forms over the various stages in the life cycle of a party. According to Pedersen (1982), this cycle begins with some individuals declaring their willingness to start a new party. Clearly, the political and legal order in the most fundamental sense is essential for parties crossing the threshold of declaration. Without the basic political freedoms (freedom of expression, access to alternative information, associational autonomy, etc.) that are necessary conditions for democracy (Dahl, 1989: 222), party declaration requires heroes and all too often fails. Party law, as defined in this chapter, is critical for the next step, the threshold of authorization—becoming a party in the legal sense. According to one standard definition, a party is an organization that fields candidates in elections. Typically, electoral activities are preceded by organizational efforts that, in turn, are likely to require legal recognition either as a political party, provided the respective legal order has a sui generis type for that, or as a political or voluntary organization. Crossing the threshold of representation requires the winning of parliamentary seats. Here the electoral law is critical. Contesting elections typically requires some form of authorization. Moreover, the electoral law provides institutional incentives (such as legal thresholds and complex districting arrangements) for pre-electoral coordination and the building of national parties. In a structured party system such rules tend to benefit the existing parties vis-ă-vis new entrants. The last of Pedersen’s thresholds is that of relevance. This can be defined in a variety of different ways and is clearly a behavioural one that depends on the political power distribution. Hence, party law as defined in this chapter is most relevant in the second and third phases of the party life cycle, although electoral law remains important throughout the entire lifetime of parties.
The ease of entry is one crucial aspect of party competition. Can we conclude that the easier the entry, the more competitive the party system? And does greater competitiveness mean more democracy and hence a better state of affairs? As Sartori (1976: 327) has put it, ‘ever more “competitiveness” is not an unmixed blessing.’ The atomization of a party system—approaching perfect economic decentralization, the predominant definition of competition in economics (Demsetz, 1982)—undermines one of the essential functions of political parties: the structuring of electoral choices. This is exemplified by Poland in its first truly democratic elections in 1991 when 111 parties fielded candidates and 29 entered parliament, with the strongest party winning a mere 12.3% of the votes and only one other party more than 10%. Excessive party system fragmentation was corrected by holding the next elections under a nationwide 5% threshold, leading to 35 parties contesting the election and only eight winning seats.
But would it not be better to leave the structuring of the party system, that is, the reduction of alternatives, entirely to market forces? The claim for some state intervention in the political market rests on two arguments. First, an atomized party system is bad for the country, as it is likely to result in government instability and insufficient political problem-solving capacity, and thereby may also have detrimental effects for democracy. Second, given the infrequency of elections, citizens can acquire only a limited experience of voting during their lifetime (Demsetz, 1982: 81-2). Indeed, assuming a four-year term and 50 years of voting experience, the average voter will have the chance to cast his or her vote in no more than 12 or 13 elections. Hence, eliminating ‘loony’ parties or candidates and forcing the others to demonstrate some level of support before they are allowed to contest elections is legitimate and beneficial to voters. While party law cannot guarantee an ‘optimal’ number of parties, it can cut back excessive supply.
Accepting that democracy is served by some restrictions on entry, the question remains at which stage in the life cycle of political parties entry should be restricted and what the criteria should be on which entry is denied. As the empirical sections below show, nations have given different answers to these questions. And these questions are linked to other aspects of party regulation, in particular to public funding and access to other scarce resources such as time in public mass media.
While too many choices may hamper the effectiveness of inter-party competition, the seizure of power by an undemocratic party is a more direct threat to democracy. Hence, party law may aim to protect democracy by outlawing such parties. Yet, the problem is that those undemocratic parties that employ democratic means in order to win political power in the first place as a rule do not openly declare their goal of doing away with democracy once they have succeeded. Also, undemocratic attitudes may only develop once parties have assumed office. Under such circumstances there is always the danger that the power to outlaw political parties will be abused. Rather than ensuring competition, it may serve the purpose of eliminating competitors that appear particularly threatening to incumbents but not to the democratic system. Therefore, in a democracy the right to outlaw political parties should be severely restricted. Incumbents should not be involved in that process and all guarantees of the rule of law should fully apply (Morlok, 2003).
While the number and character of parties are highly relevant for achieving the benefits of political competition, there is at least one other condition that must be met in order to make elections meaningful: they must be consequential. In making their bid for the voters, political parties claim that they can control the remainder of the democratic chain of delegation and hence can keep their implicit contracts with the voters (Müller, 2000). This requires that political parties be cohesive, that is, keep on board those elected under their respective brand names and ensure that these politicians observe the party line. If parties disintegrate after elections, voters may still be able to hold individual members of parliament (MPs) accountable (depending on their ambitions for re-election and the electoral system), but are unlikely to see the parties’ electoral pledges realized.
The most important incentives to ensure party cohesion are the attractiveness of the party’s brand name (provided MPs aim to be re-elected) and the fact that all but pivotal MPs are likely to have less policy influence outside their party. Party law can provide additional incentives that tie those elected under a party label to that party. The most drastic means to do so is to enforce automatic resignation of defectors from parliament—as is the case in India, provided that it is not a party split in which the party is abandoned by a minimum of one-third of its MPs (Sartori, 1997: 192). Even harsher rules were applied in Czechoslovakia in the inter-war period, where the electoral commission tended to expel MPs who changed their party affiliation (Pfeifer, 1958). Less drastic rules may restrict the ability of defecting MPs to form new parliamentary parties, get a share of parliamentary resources, and make use of parliamentary instruments.
Finally, what is the potential role of party law in making political parties live up to their second democratic predicament, to provide intra-party democracy? Democratic theory generally considers this goal second to inter-party democracy, and according to McKenzie (1982: 195) ‘intra-party democracy, strictly interpreted, is incompatible with democratic government.’ Consequently, McKenzie (1982: 195) has advocated ‘oligarchical control by the party leaders of the party organization’ as being ‘indispensable for the well-being of a democratic polity.’ McKenzie’s dictum rests on the potentially conflicting signals party officials in public office receive from their voters and party members and the assumption of high barriers to entry to the electoral market. While these conditions are not always given, the fact remains that intra- and inter-party democracy may conflict. Hence, from a normative perspective, the limits to intra-party democracy are clearly drawn when it comes to exercising influence on public officials who are accountable to the general electorate.
Party law can require intra-party democracy from political parties and it can aim at setting some standards against which real parties can be measured. Given the variety of party organizational forms that have evolved over time, however, such standards need to be very abstract. Also, the danger of abusing such clauses that refer to intra-party democracy is probably greater than those that refer to the behaviour of parties in inter-party competition.
Parties in the Constitutional and Legal Framework
The degree to which parties are formally incorporated into the legal order varies considerably in Western democracies. Some countries, such as Germany, France, Italy, Spain, Portugal and Greece, formally acknowledge parties in their constitutions. According to a recent review (Avnon, 1995), nine countries had legislated specific party laws by the early 1990s, most notably among them Germany where the most detailed party law was passed in 1967. Other established democracies with party laws are Finland, Israel, Spain, Portugal (not mentioned by Avnon) and Austria. More recently, party laws have been introduced in Poland and the Czech Republic. In most other Western democracies parties are only indirectly incorporated into the legal framework, usually via party finance laws and the electoral law. Some countries, such as the UK and Ireland, only acknowledge parties in their parliamentary rules (Schefold et al., 1990: 777).
Formal recognition of parties mainly occurs in constitutions written after periods of one-party dictatorship (Avnon, 1995). Therefore, it is not surprising that many new constitutions in Eastern Europe, such as Poland, the Czech Republic and Bulgaria, acknowledge the role of political parties and that the first two countries have also passed special party laws. In contrast, systems with a long democratic tradition have seen little need to formally acknowledge the important role of political parties in a comprehensive form and mention them only as need occurs in electoral and party finance laws.
As noted above, Germany is the heartland of party law and much attention has focused on Article 21 of the Basic Law. It was one of the earliest and at the time (1949) most comprehensive constitutional rules on parties. Article 21 regulates the freedom to create parties, their role in the formation of the political will, intra-party democracy, the duty of parties to account for their assets, and the procedures for outlawing parties as unconstitutional. (A less comprehensive article on parties had previously appeared in the Italian constitution of 1947 (see Schefold, 2002: 134).) The German Law on Political Parties of 1967, the first comprehensive party law in Western Europe, seems to have influenced the form of such laws in Spain and Portugal (Schefold et al., 1990: 767, 784). In particular, its definition of political parties in § 2(1) has been much discussed. It reads:
Parties are associations of citizens which exert influence permanently or for longer periods of time on the formation of the political will at federal or Land level and participate in the representation of the people in the German Bundestag or state parliaments (Landtag) provided that they offer sufficient guarantee of the sincerity of their aims in the general character of their circumstances and attendant conditions, particularly with regard to the size and strength of their organization, their memberships and their conduct in public.
Overall, the position of political parties in German constitutional law is so strong that they have been recognized as ‘institutions of constitutional law’ (verfassungsrechtliche Institutionen) by the Federal Constitutional Court.
Political parties are also formally recognized at the EU level. Article 138a of the Maastricht Treaty mentions that parties are ‘important as a factor for integration within the Union.’ Accordingly, they ‘contribute to forming a European awareness and to expressing the political will of the Union.’ This formulation is paraphrased in the Treaty Establishing a Constitution for Europe (signed in October 2004). Article 46(4) reads: ‘Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union.’
Most commonly, parties are organized in the form of private associations. Some of them have a legal personality of their own (Rechtsfähigkeit) but this seems to make little difference in practice. Some parties in Germany and France are rechtsfähig while others are not, but this does not affect party competition in these countries (Schefold et al. in Tsatsos et al., 1990: 782-3). Acquiring legal personality is not necessarily linked to crucial legal rights of parties, as the German case indicates. Here, parties, while not always legal persons in their own right, have been granted legal standing of their own by the Federal Constitutional Court when their constitutional rights are at stake, for example in connection with elections, party financing, tax privileges for donations, and in their relations with the government.
Extra-Parliamentary Party Organization
Most systems do not require any special registration of parties other than fulfilling the requirements for founding private associations (a certain number of members, a written statute, etc.) and (where applicable) special provisions of party law (for example, the requirements of § 2(1) of the German Party Law). Some countries, such as Greece and Austria, require a formal registration (in Greece with the Supreme Court, in Austria with the Ministry of the Interior) without rendering the registration difficult. Other countries pose more extensive requirements that actually make the foundation of new parties cumbersome. In Portugal, 5000 supporting signatures and a draft party statute are required for registration as a party with the constitutional court. Along with financial disadvantages, this requirement raises considerable hurdles for establishing a new party (de Sousa, 1990: 606-7, de Sousa, 1993: 314-15). These hurdles are even higher in Spain. According to the law of associations, parties need to register with the Ministry of Internal Affairs, and the relevant procedure is demanding. As one country expert states, it gives the government a certain influence on the foundation of new parties. This is particularly true in the run-up to an election, where delay in formal recognition can be crucial (Puente-Egido, 1990: 656-9, 677-9).
The names of established parties are often protected by party law. The German Party Law provides detailed prescriptions on the name a new party may choose. § 4 requires the names and acronyms of new parties to be clearly distinguishable from existing ones (Morlok, 2003: 439). Similar rules exist in Denmark (Vesterdorf, 1990: 91), Portugal (de Sousa, 1990: 607) and Spain—the latter providing a clear example of the relevance of party law for party ‘brand names.’ Several legal disputes emerged over that issue during the formation of the post-authoritarian party system. Specifically, those political activists who had stayed in the country during the dictatorship and those who had spent the time in exile presented conflicting claims on specific party names. The courts decided these cases by applying the rules of patent law (Puente-Egido, 1990: 658, 677-8). In contrast, Britain does not legally protect party names at all (Smith, 1990: 316).
In line with the premium democracy places on the free foundation of parties, restrictions on anti-democratic parties are rare. The main example is Germany, where the Constitutional Court can declare unconstitutional and dissolve parties that, ‘by reason of their aims or the behaviour of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany’ (Art. 21(2), Basic Law). This procedure was used twice in the early years of the Federal Republic, with a neo-Nazi party (the Sozialistische Reichspartei, SRP) and the German Communist Party (KPD) declared unconstitutional. More recently, some extreme right groups were declared unconstitutional in the early 1990s, although the most publicized attempt to ban the right-wing National Democratic Party (NPD) failed in 2003. This failure points to the potential risks of outlawing extremist parties, as they can use failed attempts as propaganda. Indeed, the NPD crossed the threshold of representation in the Land of Saxony in 2004. Spain and Portugal also have specific procedures for forbidding parties according to party laws. In 2003, the Basque nationalist party Herri Batasuna was banned by the Spanish Constitutional Court because it was considered a standing supporter of the terrorist ETA. More recently special procedures for outlawing parties can be found in the Polish constitution and the party law of the Czech Republic (see country chapters in Tsatsos, 2002).
Other countries only have procedures for outlawing private associations in general, which are also applicable to political parties. Such provisions can be contained in the Constitution (as in Art. 78(2) of the Danish Constitution), in the general law of associations (as in the Netherlands), or in laws for protecting the state (such as the act on combat groups and private militias of 1936 in France, the Prevention of Terrorism Act 1974 in the UK, or the Irish Offences against the State Act 1939). While the French law has been used repeatedly (see Fromont, 1990: 243), both Ireland and the UK have been very reluctant to make use of their provisions against political parties. Sinn Féin has not been outlawed in either country, even though the IRA is considered an ‘unlawful organization’ in both. Belgium offers a recent example of outlawing a political party, in this case the far-right Vlaams Block, which was considered a racist organization and therefore outlawed by the Belgian High Court in 2004 (Erk, 2005). The Court’s verdict was based on the Belgian Anti-Racism Act of 1981. While the constitutions of some countries (e.g., France, Greece, Italy and Portugal) demand that parties observe democratic principles (generally interpreted as inter-party democracy), only the German (Art. 21(1)) and the Spanish (Art. 6(3)) constitutions commit the parties explicitly to intra-party democracy. These requirements are spelled out in more detail at the level of party law in Germany, Spain, Portugal and Finland. Most other countries do not have specific legal rules on intra-party democracy. Here, only the general principles regulating private associations are applicable, which in some cases (e.g. Denmark and the Netherlands) contain certain minimal standards of democracy such as equality of the members or the making of decisions by the majority principle. In general, the detailed prescription of intra-party decision-making processes is left to the individual party statutes (Schefold et al., 1990: 809-11). Ironically, under the now abandoned rule that the party leader is elected by the parliamentary party, the major British parties would not pass the test of intra-party democracy as established by the German Party Law and its interpretation by the Constitutional Court, which demand the participation of party members in the selection of party leaders.
Parties as Electoral Organizations
In order to live up to the standard political science definition, political parties need to run in elections. Here, the relevant legal rules are most frequently contained in the electoral laws. Campaign finance regulations are a second major source of laws which have drawn considerable attention in the last decades (on campaign finance and party finance more generally, see the chapter by Nassmacher in this volume).
The first complex with regard to parties as electoral organizations refers to how parties get ballot access (Bowler et al., 2003; Hug, 2001: 178-81). Here, we focus on the national level; for subnational elections other rules may apply. First, there are countries in which the parties, while important in practice, do not play a legally recognized role in the electoral process. For example, in France and the UK, both countries with single-member districts, only individuals get access to the ballot. Candidates in France may even change their stated party affiliation between the first election and the run-off (Fromont, 1990: 238). But even some countries with a list electoral system do not grant parties a formal role. In Luxembourg, for example, lists are formally accepted on the ballot when supported by 25 registered voters in the respective district. In practice, though, parties dominate the nomination process in all these countries. Nevertheless, as the British example shows, individual candidates, either for themselves or for a newly founded party, may get easy access to the ballot without the support of an established party, especially if the number of signatures needed to get on the ballot is low and the deposit to be paid is not excessive (10 signatures and €500 in the British case).
Other countries formally recognize the important role played by parties in the electoral process by allowing only party lists on the ballot. Usually, a certain number of signatures are needed and at times a financial deposit has to be paid. The hurdles for ballot access differ considerably: while only 10 voters’ signatures are needed in the Netherlands, the Danish electoral law requires as many as 1/175 of the number of valid votes in the last elections, which means approximately 20,000 signatures (Bowler et al., 2003). According to the German Federal Electoral Law (§§ 18(2), 20(2), 27(1)), parties have to present 200 signatures of citizens living in the relevant single-member constituency to place a candidate on the ballot paper and 0.1% of the eligible voters (or at most 2000 signatures) in order to submit a candidate list at the state level (Landesliste). While independent candidates can run in the single-member constituencies, only parties fulfilling the requirements of party law (see the definition in § 2 of the Party Law) are allowed to submit lists for the PR part of the elections (Morlok, 2003: 434-7). In addition to a certain number of signatures, financial deposits are required in many countries. Amounts currently vary considerably (see Bowler et al., 2003). While Dutch parties have to pay a deposit of €11,250 (approx. US$ 13,641, exchange rates as of August 2005) to place a list on the ballot, party lists in New Zealand only pay NZ$1000 (US$682). In countries with single-member constituencies, amounts between NZ$300 (US$205) in New Zealand and ¥3 million (US$26,671) in Japan have to be paid per constituency. These deposits are generally non-refundable in Austria (and hence are called contributions to the costs of elections) but refunded in most other countries if the candidate or the party wins a certain number of votes. These thresholds also vary but are usually around 5% of the vote for constituency candidates. In list systems the hurdle is usually lower, amounting to only 0.5% of all party votes in New Zealand and three-quarters of the electoral quotient (which is the total of all valid votes divided by 150) in the Netherlands.
In many countries parties that already enjoy parliamentary representation are exempt from the above-mentioned requirements. Thus, they do not have to collect signatures and pay the deposit in the Netherlands, and they are exempt from the collection of signatures in Denmark and Italy (Bowler et al., 2003: Table 5.A1). In Germany, the requirements do not apply to parties that are represented in the Bundestag or a state parliament (Landtag) with at least 5 MPs due to their own electoral success in the preceding elections. ‘Internally created’ parties, however, are excluded from this privilege. Similarly, new parties founded by incumbent MPs no longer get automatic ballot access in Denmark since a change in the electoral law in 1965.
Comparing the rules governing ballot access in the 1960s and the late 1990s, Bowler et al. (2003: 90-1) observe a development towards stricter access rules in six countries, while four made access easier. Increased requirements can be observed in the Netherlands (higher deposit), Austria, Norway, Finland, Switzerland, and New Zealand (higher number of signatures). Contrary to this trend, access has become easier in Britain, France, Australia, and Canada where lower deposits (in real, if not necessarily in nominal, terms) are required today and the thresholds for reimbursement have been lowered.
The electoral law can also contain elements that provide a de facto recognition of political parties (i.e. individual candidates would be severely disadvantaged vis-ă-vis parties). These include legal thresholds in large districts or the entire nation and complex districting arrangements. Even if ‘party’ is never mentioned in the electoral laws, such arrangements require political coordination in large geographical areas and hence constitute de facto recognitions of parties. Some countries (e.g. Greece and Turkey) make this explicit by penalizing ad hoc cooperations relative to political parties (particularly by demanding higher thresholds).
Formal legal rules with regard to the process by which parties nominate candidates for elections are rare. Such rules are contained in the party law in Greece and Germany but only in very general terms. § 17 of the German Party Law requires secret votes on party candidates and refers to the electoral law (containing more detailed instructions) and party statutes for the exact procedures. Similarly, the Greek Party Law demands candidate nomination by the appropriate party organs in accordance with the party statutes. Some legal rules on candidate selection also exist in Norway (since 1921), and Finland (since 1970) (Scarrow et al., 2000: 138). In the absence of legal rules candidate nomination is only governed by party statutes and practice (Schefold et al., in Tsatsos et al., 1990: 820). In particular, the introduction of member votes for nominating candidates has been much discussed and introduced by some parties as a way of improving the democratic performance of parties and to counter anti-party sentiments (Bille, 2001).
With regard to the conduct of electoral campaigns, access to the media, especially TV, has been intensively researched (see Bowler et al., 2003). In most countries, parties are given free public broadcasting time prior to elections. As Bergman et al. (2003: Table 4.7) show, this time is either granted equally to all parliamentary parties (e.g. in Denmark, Iceland, and the Netherlands) or in proportion to their size (e.g. in Germany, Austria, France, the UK, Ireland, and Italy (since 1993)). Proportional access is also the rule in Australia, New Zealand, and Japan. A second distinction can be made according to the question of whether parties not currently represented in parliament get free broadcasting time equal to parliamentary parties. In Western Europe, only Austria does not grant parties outside parliament any free TV access. Most other countries provide those parties with a minimum amount of TV time. Only Denmark and the UK treat parties not represented in parliament on an equal footing with parliamentary parties. In addition to free public broadcasting, some countries, such as Iceland, the Netherlands and Greece, allow parties to buy additional TV time for campaign spots. The other Western European countries either ban or restrict this form of campaigning. Finally, Finland does not grant parties free broadcasting time and does not restrict private commercial advertising and thus leaves electoral advertising completely to market forces. Bowler et al. (2003: 91-2) find a slight trend towards easier access for new parties in countries such as Australia, Canada, Ireland, Italy and New Zealand, while access has become somewhat more restricted in France and the Netherlands.
Campaign finance is perhaps the most intensely discussed and researched problem with regard to parties as electoral organizations. The survey by Bergman et al. shows that public party finance is nowadays a universal feature of Western European democracies. One important question with regard to competition and the entry of new parties is whether parties without parliamentary representation receive public funding as well. This is true in about half the Western European countries (Austria, Denmark, France, Germany, Greece, Norway, and Sweden). No public funding is available to parties not represented in parliament in Belgium, Finland, Iceland, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain and the UK. Nevertheless party systems in which new parties are not barred from public finance do not appear to be more prone to change than systems in which parliamentary parties are in a privileged position (Bergman et al., 2003: 142-5).
Bowler et al. (2003) find a relaxation in the requirements for receiving public campaign finance in more than two-thirds of the countries in their sample of Western democracies which make access for new parties easier. Yet, these changes have often been accompanied by additional funds for larger parties or parliamentary party groups. This may well strengthen the competitive advantages of established parties (Bowler et al., 2003: 92-3). The 2003 EU regulation on political parties offers a striking example of preferential treatment of established parties as opposed to potential newcomers with regard to obtaining public funding.
The total amounts of public funding received by political parties have risen considerably in some European countries. Farrell and Webb (2000) show that subsidies to the national parties have risen by 369% in Austria (1975-90), 88% in Ireland (1977-89) and 43% in the Netherlands (in a similar period). Other countries, such as Sweden (-32%, 1976-88), Finland (-13%, 1975-87) and Germany (-6%, 1972-87), have witnessed some reductions. In most countries in the sample, the relative importance of public subsidies as compared to other forms of party income has increased. The sharpest rises occurred in Norway (from 57.1% to 83.6%) and Germany (from 58.4% to 70.3%). Sweden (from 62.9% to 52.1%) is the only example of decreasing reliance on public funding, while its relative importance has remained basically unchanged in Finland, Ireland and the Netherlands, albeit at very different levels.
Parties in Parliament
Once parties have crossed the threshold of representation they can form parliamentary party groups (PPGs). While PPGs are acknowledged in the constitution or in statutory law in some countries, the detailed legal rules governing their rights and conduct in parliament can for the most part be found in the parliamentary standing orders. To the extent that PPGs receive public subsidies, often other regulations (such as laws on campaign finance and/or subsidies to the extra-parliamentary party organization) prove relevant.
First, we may differentiate several ways in which PPGs are recognized. Germany, Italy, Sweden and (indirectly) Austria recognize PPGs in their constitutions. In other countries, such as Denmark and France, PPGs are formally recognized in the standing orders of parliament. Finally, some countries, most notably the UK, do not formally recognize PPGs at all (Heidar and Koole, 2000c: 252).
Next, the rules differ on the number of MPs needed to form a PPG. While the Scandinavian countries and the Netherlands have no formal numerical requirement (implying that the rights of a PPG can be claimed by any individual MP), several parliaments require PPGs to consist of a minimum number of parliamentarians. Italy and France require PPGs to consist of approximately 3% of all MPs, and Germany has set the minimum at 5% (Heidar and Koole, 2000b: 7). Besides the numerical requirement, PPGs must usually consist of MPs elected under the same party label or, as in the case of the CDU/CSU in Germany, at least represent parties that do not compete with each other in the electoral arena. Exceptions are the so-called technical party groups that are founded by MPs elected under different party labels mainly in order to enjoy the benefits connected with PPG status. Examples include the Technical Group of Co-ordination and Defence of Independent MEPs (1979-84) and the Rainbow Group (1984-94) in the European Parliament (Raunio, 2000: 241). In the Spanish parliament, members who do not join a voluntarily founded PPG are automatically included in the mixed group which could thus be considered a technical PPG. Usually PPGs only consist of a group of MPs of one chamber, the exception being Austria where PPGs contain members of both chambers of parliament as well as of the European Parliament (Müller and Steininger, 2000).
The importance of the rules on obtaining the status of a PPG party depends on the prerogatives these enjoy in parliamentary business. Shaun Bowler (2000: 162) presents data according to which about half of the Western democracies in his sample do not privilege PPG members compared to unattached MPs. Examples of such countries are Australia, Belgium, Denmark, Finland, the Netherlands, New Zealand, and the UK. Other countries, such as Austria, Canada, France, Germany, Luxembourg, Norway and Sweden, grant particular privileges to PPGs. In addition, committee appointments are made almost everywhere on the basis of party groups. The only exceptions in Europe are Belgium and Sweden. Finally, PPGs enjoy certain advantages with regard to legislation (provided that bills cannot be introduced by any MP). Germany, Austria, Spain, and Italy are examples of countries where a certain number of MPs (usually the minimum size of a PPG) is needed in order to introduce bills (Wiberg, 1995). According to the Standing Orders of the German Bundestag (§§ 75, 76), bills may also be initiated by a PPG itself, that is, the PPG leadership. This rule not only makes for a less cumbersome process than gathering individual signatures, but also strengthens the autonomy of party leadership within a legislature (see Schüttemeyer, 1994).
Besides the rules for parliamentary business, public financing of PPGs is a second important topic. The country chapters in Heidar and Koole’s (2000a) volume on PPGs in Europe indicate that public subsidies to PPGs are the rule, while the amounts paid differ considerably. PPG status also can generate the public provision of staff resources not available to individual MPs. While, for example, the French PPGs only have a claim for some secretarial staff and have to borrow parliamentary assistants from their MPs, and the British PPGs’ staff consists of only a few persons, PPGs in Germany employed a total of 727 persons (between 0.8 and 3.5 staff members per PPG member) in 1994 (not counting the personal staff of individual MPs). Somewhat lower levels are observed in Belgium, with 1 staff person for each PPG member (1996), Austria (total 148, averages 0.55-2.11 per PPG member, 1996), and the Netherlands (averages 0.36-1.83, 1991). Still lower is the staffing of the PPGs in Denmark (total 73, average 0.42, 1995) and Finland (total 43, average 0.22, 1995).
Party law, as defined in this chapter, is the legal regulation of extra-parliamentary party organizations, parties as electoral organizations, and parliamentary parties. In a synthetic perspective, lumping together various national patterns, it addresses issues of party-state relations (the parties’ legal existence, their access to public resources), inter-party relations (issues of competition such as name protection and campaign behaviour), the ‘ownership rights’ of both party members and party voters, and important aspects of the relations between parties and party-nominated holders of public office. In democracies, to which this chapter has confined itself, the limits of what party law can and should achieve are narrowly drawn. Yet, in various forms and with relevant differences between countries, party law has great impact on the early stages in party life.