From half a globe away, the unprecedented 2016 US presidential election caught the attention of many Malaysians since the GOP presidential nomination up till Donald Trump won the presidency.

I understand that everyone is still baffled by the election results, I myself am still looking for answers in one of the most Republican states of Wyoming to understand the country better. However, the biggest takeaway for me, a Malaysian, from the US election is the transparency in political finance during the campaign period.

The Congress of the United States has, in the past decades, enacted laws regulating the limits on funding and expenditure of election candidates and parties and the disclosure of their political finances, more commonly known as campaign finance laws.

Campaigning is an exorbitant task especially on a federal level. Even billionaire Republican nominee Donald Trump, who claimed to fund his own campaign in the primaries, had to resort to large donations during the general election.

In order to safeguard the integrity of the election and avoid unscrupulous practices, the US campaign finance law imposes restrictions on individual, corporate and group contributions to political campaigns and candidates.

For instance, an individual may give a maximum of US$2,700 per election to a Federal candidate or the candidate's campaign committee. Corporations, on the other hand, can contribute US$5,000 per election to a candidate. However, corporation contribution can only be channelled to the candidate through their political action committee (PAC) that needs to registered with the the Federal Election Commission.

When challenged at the US Supreme Court in Buckley vs Valeo, the court upheld those restrictions to protect the state’s interest in the prevention of corruption and the appearance of corruption. As explained by the court, “corruption” here refers to large financial contributors having real or imagined coercive influence on candidates’ positions and on their actions if elected to office.

Caps on political expenditures has been struck down by the Supreme Court for being unconstitutional due to its violation of the free speech clause of the First Amendment. However, if a candidate chooses to participate in the public funding program created by the Congress that utilises tax dollars, his or her campaign has to abide by spending limits.

The core mechanism for creating a level playing field in campaign financing is centred on disclosure requirements. The campaign finance law in the US ensures transparency by requiring all candidates and parties to file periodic reports disclosing the money they raise, spend and information of their contributors.

The Federal Election Commission’s website comprehensively provides information disclosed by running candidates on both federal and state level. For example, you can easily find a list of all the people who have donated to the Clinton campaign, including their occupations, the city they live in and the amount of contribution.

Currently, Malaysia do not have regulations restricting the amount of contribution made to election candidates and their political parties. The Election Offences Act (1954) limits only the expenditure of each candidate to RM100,000 for state seats, and RM200,000 for federal seats while there is no mention of maximum expenses for the parties they represent.

Full disclosure requirement lacking

More importantly, Malaysia lacks the most vital mechanism in providing transparency in political finance - the requirement of full disclosure. Candidates and parties are not compelled to disclose the source of their campaign funds or their expenditures. This inevitably opens the floodgate to money politics that every democratic society strive to combat.

On top of that, unlike the US, Parliament has yet to enact legislation to prohibit political funding from foreign sources or donors that are not Malaysian entities or citizens. Foreign influence on a candidates’ positions and on their actions if elected to office is clearly capable of jeopardising the integrity of the election as a representative democracy.

There are certainly many other positive features of the US election that did not provoke the need to demand for a free and fair election. The two most prominent features being the broad protection of the freedom of political speech and the growingly obvert culture of fact-checking that complements the former.

The Congress and the Supreme Court recognised the importance of a broader constitutional protection for political speech in the state’s interest in protecting the voter’s right to information.

The limitations on the freedom of political speech in Malaysia was once defended by the the court in the case of PP vs Ooi Kee Saik with the rationale : “Our sedition law would not necessarily be apt for other people but we ought always to remember that it is a law which suits our temperament.”

Bearing in mind the constitutional, temperamental and other fundamental differences between the US and Malaysia, I see no reason why Malaysia should be deprived of a free and fair election by not instilling more transparency in political finance.

SHER RYNN KHOO is a third year law student from Universiti Malaya currently on an exchange programme in the US.