Federal Council and financial control in clinch

The elections in autumn 2023 are already serious. The parties and their candidates must disclose 45 days in advance how much money they are spending on the election campaign and where it is coming from. Donations of CHF 15,000 or more must be disclosed individually. Anyone who accepts money from an anonymous source or from abroad must expect a fine of up to 40,000 francs.

However, a wild dispute has broken out between the Federal Council and the Swiss Federal Audit Office (SFAO) over the question of how the new transparency rules should be implemented. It is planned that the federal financial supervisors will take on this new task. But now the SFAO is threatening to drop the matter, which is not only a singular occurrence for the federal state of Bern.

The stumbling block is the draft ordinance that the Federal Office of Justice in the Department of Federal Councilor Karin Keller-Sutter recently submitted to the internal office consultation. One point of contention is the random checks provided for by the law. The draft states that this can only be done with the consent of those affected. So if the financial controllers appear in the secretariat of the SVP or the Green Liberals, the party representatives are free to refuse the inspection.

¨Control only with the consent of the parties

For the SFAO, the Federal Council crosses a red line with this concession to the parties: For example, whether the ban on anonymous donations is being observed can only be checked if the accounting is possible, writes the authority in a statement to the federal government, which the NZZ has seen. The fact that this requires the approval of political actors contradicts the will of the legislature and makes its implementation impossible. The financial supervisors have issued an ultimatum to the Federal Council to correct the ordinance.

This is not the only point that drives the SFAO to the barricades. The rules of the game for the publication of the documents submitted by the parties and committees are also controversial. Should all the budgets and lists of donors be published more or less without comment, even if there are suspected gaps or irregularities?

The SFAO wants to prevent this. She demands that she be allowed to attach “notes”. This would show, for example, whether verification was carried out or whether an on-site inspection was possible. The SFAO would also like to be able to announce if it encountered deviations during verification.

misleading the public?

The SFAO finds it unacceptable that the draft does not provide for such options. Without such information, the public would be misled, she criticized. She has obtained an opinion on this question from the Bernese constitutional law professor Markus Müller. He states that it is of central importance to make incorrect and incomplete information public before the election or vote. Any other understanding would be diametrically opposed to the intent of the law.

With this report in hand, the outgoing head of the SFAO, Michel Huissoud, is now going all out: if the Federal Council does not comply with the demands, the SFAO threatens to refuse to work in its statement. In other words, it would refuse to implement the new transparency rules. According to the SFAO, this function is only assumed on the condition that the final text of the ordinance does not impede the application of the law. If the Federal Council sticks to its version, it should use the Federal Chancellery as a control body.

Huissoud receives support from the originators of the “Transparency Initiative”, on which the new rules are based. “Our goal is for voters to have as much knowledge as possible about potential dependencies,” says SP National Councilor Nadine Masshardt. “Therefore, the control body should have the opportunity to publish its current knowledge.”

The budget has already been increased

With its fundamental criticism, the SFAO has caused some irritation in Bern. Above all, the threatened refusal gave rise to talk, with reactions ranging from incomprehension to amusement. Experts in the administration assume that the financial control has no legal leeway: the Federal Office of Justice explained on request that the SFAO cannot refuse any new tasks that the Federal Council has assigned to it on the basis of a new law. This would only be possible if it would jeopardize their independence and impartiality. This risk is unlikely to exist in the present case; the SFAO itself does not argue in this way either.

What’s more, the withdrawal would bring with it complications that almost called for an investigation by Financial Control. On the one hand, the SFAO has already been able to hire additional staff for the new task. At her request, Parliament has already increased her budget by CHF 2.4 million because of the new task. On the other hand, the SFAO is already in the process of setting up an electronic reporting system that committees and parties can use to announce their budgets.

Prejudgment before the ballot

The federal lawyers also reject the SFAO’s criticism on this point: According to their interpretation, the demands clearly go beyond the law passed by Parliament. According to the Federal Office of Justice, this applies in particular to the idea of ​​carrying out house searches against the will of those affected.

However, this point is probably not decisive in reality. The SFAO itself seems to be aware that it cannot use force to gain access to a party secretariat. At the same time, hardly any serious political force would come up with the idea of ​​locking out the SFAO. She would have to reckon with this becoming public, which would ruin her reputation for years to come.

The question of the references that the SFAO would like to add remains. Here, the Federal Office refers to the threat of prejudice and its political implications: If the SFAO points out alleged inconsistencies, the suspicion remains in the room until the election or vote in question is held. It would only become clear later whether the accusations were actually true. An unfounded suspicion could therefore influence the outcome of elections and damage the reputation of those affected. In addition, one wonders how useful it is to point out whether a certain budget has been verified if the law stipulates that checks are only carried out on a random basis.

The federal government wants to wait until there is a verdict

From the Confederation’s point of view, the SFAO must therefore refrain from providing information. He proposes a general “disclaimer” stating that the parties and committees are responsible for the correctness of the information and that the SFAO does not guarantee it. Suspicious documents should also be published. Only if criminal proceedings later lead to a final judgment should the SFAO make a reference to this.

All these issues are also controversial in Parliament. In the Council of States, the majority of the responsible committee is on the side of the SFAO, in the National Council it is the other way around. Angry tongues say that this also has something to do with the fact that the Council of States has less to fear: In contrast to the National Council elections, the new rules for the Council of States, which are elected according to cantonal law, only come into effect after the election.

How the tug of war ends will be seen after the summer holidays, when the Federal Council will definitely decide on the new rules. SFAO director Huissoud will retire at the end of August. Quite a few in the administration hope that his successor Pascal Stirnimann will cultivate a less confrontational style – not only in political financing.