Legitimizing Elections Through the Regulation of Campaign Financing: A Comparative Constitutional Analysis and Hope for South Africa

Abstract

Actual or apparent corruption can seriously undermine any democratic system. This Article examines two approaches to tackling this problem in South Africa. The libertarian approach, used in the United States, embodies a strong presumption against regulation of campaign financing on the basis that it is a violation of the constitutional rights to free speech and association. The weak regulations that result from this system do little to stem the influence of a powerful few on the outcomes of national elections. A better approach for South Africa is the egalitarian model, used in both the United Kingdom and Canada. This model focuses on leveling the playing field for participants. Under this model, rights are subject to greater regulation so long as the government can provide sufficient justification. South Africa’s current system, by requiring proportional national funding of political parties, but leaving private financing largely unregulated, has resulted in a virtual one-party state in which private funding dominates. To solve these problems, South Africa should embrace the egalitarian model by implementing spending caps and increasing transparency.