Although the Kelly judgment will have a long-lasting impact on Irish politics, it will not stop the binge-like spending indulged in by Fianna Fáil, writes Mark Hennessy, Political Reporter
In the simpler days of old in Irish politics, election candidates just had to worry about pressing flesh and calling in enough constituency favours during a three-week campaign to ensure polling-day victory.
Life is more difficult now. And it has been further complicated by yesterday's Supreme Court ruling that sitting TDs must place a value on State services, such as secretaries and offices, in their election- spending returns.
Following changes in the 2001 Electoral (Amendment) Act, candidates in three-seater constituencies in last May's election were each allowed a "pot" of €25,395 for their campaigns.
Candidates in four-seaters were allowed €31,743 Euro while those in five-seaters were entitled to spend €38,092. From here, however, the system becomes byzantine.
Under the rules, political parties have to get a share of each candidate's pot so that they can finance the engine room behind national campaigns, such as the election headquarters, billboards, advertising and such like.
Each adopted different rules, and often applied different rules to different candidates. The Labour Party, in most cases, took 40 per cent of the total spend; Fianna Fáil took 50 per cent of the spend for some candidates, though far less from others. In one tightly fought five-seater, Fianna Fáil HQ took just €5,000 from each of its three eventually successful candidates.
Voicing the frustrations of many party officials, the general secretary of the Progressive Democrats, Mr John Higgins, last night told The Irish Times: "The legislation is just not workable. It is going to have to be looked at again." Already, a number of narrowly-defeated candidates have begun to investigate whether the judgment in favour of Fianna Fáil Dublin West candidate Mr Des Kelly could get them into the Dáil by the back door.
Spending returns from the 463 candidates must be submitted to the Standards in Public Office Commission before Christmas, although it is not likely to publish the figures until the new year.
Following the Supreme Court judgment, TDs and senators from the last Dáil will have to include the cost of Oireachtas facilities, such as free envelopes, telephones, secretarial salaries and offices, which they used in the three weeks between the calling of the election and polling day.
Already, Mr Kelly has made clear that he was happy enough to have made his point and that he will not be going to the High Court to lodge a petition, but Independent Cork South Central candidate Ms Kathy Sinnot is certainly thinking about it.
In the battle for the fifth seat, she originally beat Fianna Fáil's Mr John Dennehy by two votes on the eighth count, although Mr Dennehy eventually reclaimed his Dail seat by six votes after two tense recounts.
Although Mr Dennehy was the one to beat her by a nose, a question mark could be placed over any of the five people elected in Cork South Central, including Fianna Fáil's Mr Micheal Martin, if they breached spending limits.
The same goes in Dublin Central, where Sinn Féin Dublin Corporation Councillor, Mr Nicky Kehoe was pipped by Fianna Fáil's Mr Dermot Fitzpatrick, who won on the Taoiseach's transfers.
In Wicklow Independent TD, Ms Mildred Fox just edged home ahead of Labour's Mr Nicky Kelly. After nine counts, she was 12 ahead of Mr Kelly, though she finally won by 19 ballots.
Ever since the High Court ruled in favour of Mr Kelly on the day before voters went to the polls, the political parties believed the Supreme Court would follow the lower court's lead. Never the less, they remained reasonably sanguine last night that members of the 28th Dáil would not be ousted from their seats on foot of court petitions by beaten candidates.
Under the electoral acts, a file must be prepared by the Standards in Public Office Commission and sent on to the Director of Public Prosecutions if a candidate overspends. However, the legislation equally provides that a candidate - who would face a €1,270 fine if found guilty - can argue before a court that they did not "knowingly" breach the law.
And they would some grounds for doing so. The Standards in Public Office Commission's pre-election guidelines made it expressly clear that Oireachtas-provided facilities did NOT have to be included in spending returns.
Noises from the Minister for the Environment, Mr Cullen, about the Electoral Act have already been interpreted as a signal of Fianna Fáil's intention to get around the problem by simply raising the limits.
Most other parties, who cannot compete with Fianna Fáil's fundraising machine, would oppose such a course. "That would mean that the law would benefit the richest parties," said Labour's general secretary, Mr Mike Allen.
Since a party's total election spend is based strictly on the number of candidates it runs, it could simply decide to run more, although that would benefit the smaller parties.
For instance, a party such as the Progressive Democrats could run a no-hope candidate in a constituency, spend nothing on them and divert the money to its national campaign, thus taking less from genuine runners.
Fianna Fáil and Fine Gael would find this more difficult to do, since they already run large fields: "If they were to do that, there would be a danger that the vote would split," said one source last night. Although the Kelly judgment will have a long-lasting impact on Irish politics, it will not stop the binge-like spending such as that indulged in by Fianna Fáil.