Online donations: Crowding into the Dáil

One overlooked aspect of General Election 2020, and indeed the local, European and Dáil bye-elections in 2019, has been the growing trend towards crowdfunding to finance political candidates’ campaigns. Largely occurring online, this type of political donation has the potential to contravene the Standards in Public Office Commission (SIPO) guidelines in relation to donations.

The Cambridge Dictionary defines crowdfunding as “the practice of getting a large number of people to each give small amounts of money in order to provide the finance for a business project, typically using the internet”. For those familiar with the obligations undertaken by political parties and candidates relating to the acceptance, management and disclosure of donations, this poses problems.

Donations

Underpinned by the Electoral Act, SIPO guidelines are intended to inform electoral candidates of the rules they are required to adhere to in relation to disclosure, refusal and remittance of donations. Donations are comprehensively defined as:

• a donation of money;
• the free use of property or goods;
• a free supply of services;
• a price less than the usual commercial price for the purchase, acquisition or use of property or goods;
• a contribution made by a person to a fund-raising event organised for the purpose of raising funds for a candidate or political party; or
• a payment by person (or on behalf of a person or persons) of a party membership fee or subscription.

Donations from the same person in the same calendar year to a single candidate cannot exceed the maximum limit of €1,000 aggregated value, paid either directly or otherwise, including monetary donations from the recipient’s political party.

If in receipt of a monetary donation, the value of which exceeds €100 in a single calendar year, a candidate must open and maintain a political donations account in a financial institution (excluding credit unions) in the State. SIPO recommends that “where possible”, a record of names and addresses of all donors (even where the donation does not exceed €100) be kept, in order to assist in compliance with the aggregate donation limit of €1,000 per single donor in a calendar year.

General Election 2020

Prior to General Election 2020, there are over 30 crowdfunding campaigns across several platforms, including GoFundMe and DonorBox. Crowdfunding for the election is most prevalent among Green Party candidates, including leader Eamon Ryan and deputy leader Catherine Martin. Others engaged in online crowdfunding include the Labour Party (on behalf of Dublin Bay South candidate Kevin Humphreys), Sinn Féin (including party housing spokesperson Eoin Ó Broin and Dublin Mid-West running mate Mark Ward), Aontú (including leader Peadar Tóibín), People Before Profit (PBP), Solidarity, the Social Democrats, independents and a sole Fianna Fáil candidate (Tipperary’s Sandra Farrell).

Prohibited donations

There are a number of circumstances in which donations to an electoral candidate are prohibited. In this respect, the guidelines are vulnerable to circumvention via online crowdfunding. Firstly, candidates are prohibited from accepting donations of any value from any individual (other than an Irish citizen) residing outside the island of Ireland or from “a body corporate or unincorporated body of persons which does not keep an office in the island of Ireland from which the carrying out of one or more of its principle activities is directed”. The onus is on the recipient of a donation to ensure that the donation is acceptable.

Secondly, a candidate cannot accept an anonymous donation in excess of €100. ‘Anonymous’ means the name and address of the donor is unknown to the candidate concerned. If such a donation is received, the candidate must notify the Standards Commission within two weeks of receipt. The donation must be remitted by the candidate to the Standards Commission.

Thirdly, a cash donation exceeding €200 in value is also prohibited. If received, the recipient must return the donation and keep a written record to furnish the Standards Commission, if required. Otherwise, the candidate must  notify the Standards Commission within two weeks of receipt and remit the donation to the Standards Commission.

The Standards Commission advises that, if a candidate is using a crowd funding service, they should make it clear to donors that the acceptance of prohibited donations is not permitted.

Fourthly, unless a corporate donor is registered on the Register of Corporate Donors maintained by the Commission, acceptance of a cash donation exceeding €200 in value is prohibited. Similarly, donations by non-registered corporate donors in excess of €200 are prohibited unless the donor is registered in the Register of Corporate Donors and the a statement is made on behalf of the corporate donor (alongside the donation) to confirm that the donation as approved.

Finally, a candidate is prohibited from accepting a donation if they know or have reason to believe that the donor does not intend to comply with the Electoral Act.

Recording and disclosure

Candidates must comply with the Electoral Act in relation to recording and disclosure of donations. SIPO recommends that candidates keep a written donation statement, incorporating:

• the name, description, citizenship and postal address of the donor;
• the date on which the donation was received;
• whether or not the donation was requested; and
• whether a receipt was issued.

Of particular relevance to online donations, the candidate is responsible for ensuring that any accepted donations do not contravene the Electoral Act. Specifically, the guidelines issued to candidates state: “Where a candidate is accepting donations through a website, he/she must be able to properly identify the source of the donation and ensure that the donation is not prohibited. It is also important for disclosure purposes and for the purposes of adhering to the maximum acceptance limit that the candidate has a system in place which will aggregate all donations from the same donor, whether received online (by credit card, debit card etc.) and/or by other means.

“The Standards Commission advises that, if a candidate is using a crowd funding service, they should make it clear to donors that the acceptance of prohibited donations is not permitted. The candidate may seek to work with the service to put in place measures to support this.”

While GoFundMe is the most commonly utilised platform, a significant number of Green Party candidates have instead turned to DonorBox. Indeed, Green Party candidate for Carlow-Kilkenny, Malcolm Noonan’s GoFundMe campaign was suspended “due to unprecedented donations and our need to transparently comply with SIPO requirements on public donations” in favour of DonorBox, “the Green Party recommended platform”. Furthermore, Eamon Ryan’s DonorBox page advises: “Your name and details will be held by the Green Party and used to cross reference against other donations to guarantee compliance.”

Meanwhile, addressing any potential donors, Stephen Tynan, the PBP’s prospective member for Laois-Offaly instructs: “No single donations above €100 without an address and no completely anonymous donations (you can make your donation private but please fill in your name so our campaign team have it!) All completely anonymous donations will be donated to charity.”

As things stand, political parties have advised their candidates to comply and there is no indication that SIPO’s guidelines have indeed been breached. If it is of the view that an offence under the Electoral Act may have been committed, the Standards Commission refers the matter to An Garda Síochána. The candidate may then be liable to a fine or imprisonment. However, while the responsibility for adherence rests with candidates, the potential for donations to be made by anonymously, by a non-Irish citizen and in excess of maximum monetary value limits is apparent.