Roundtable on Adjudication of Media Disputes in the Pre-Election Campaign
Remarks of IFES Election Specialist
27 March 1996
I am delighted to be a guest in Moscow during this very important time as the people of the Russian Federation prepare to elect their next president. At home we, too, are facing our own issues, controversies, stresses and challenges that always seem to abound during the campaigns for presidential elections. I am anxiously awaiting President Clinton's visit next month. Imagine! I have traveled all the way to Moscow and it will be here that I may see a United States President in person for the very first time in my life.
I come to the table today for our exploration of issues related to adjudication of media disputes, not as an attorney, but as an election administrator who for many years faced the responsibilities of seeing to it that elections were carried out in compliance with the law, and in an orderly, efficient, transparent, and accountable way. Long before my career in elections..... at least a 1000 years ago.....I worked in radio and television production, and during election cycles, specifically in the production and broadcast of materials promoting voter participation, and often in the production of announcements and broadcast materials for candidates and parties for their campaigns. So, in some ways I've had the opportunity to walk both sides of the street .....and I've been on both sides of the aisle in court cases related to election issues and legal disputes.
Elections are a people's process, the one endeavor of civil society where citizens dictate their desires, and where through their choices, citizens direct the course of events. When we talk about democracy and democratic elections it is impossible to avoid using words like free...., fair....equal. These are the ideals to which we expect a truly democratic election system to aspire.
I am sure we would all agree that an informed electorate is critical to meaningful democracy. That is why we place such emphasis and importance creating a pre-election environment that allows candidates to fully disclose their programs, and allows voters to acquire the information necessary to make informed decisions at the polls. And in today's modern age, the most effective and broad sweeping way for voters to become familiar with the choices available to them and with the personalities and programs of those who would seek their vote is through the mass media.
It is commendable that Laws of the Russian Federation on the Basic Guarantees of Electoral Rights of Citizens and on Election of the President give full recognition to the importance of equality and fairness in the pre-election campaign period. A number of articles speak to the underlying policy. And, they attempt to ensure that equality by safeguarding the rights of all citizens to freely campaign for or against candidates, and guaranteeing candidates and electoral associations equal access to the media. The Central Election Commission is charged with «creating equal conditions» for the pre-election campaigns. The law even attempts to ensure equality by dictating a specific time period for campaigning, and offering free airtime on state radio and television to candidates on an equal basis. It also tries to neutralize the potential for unfair or inappropriate influence from official sources by restricting officials of state bodies and members of electoral commissions from participating in campaigning.
Today we are focusing our attention on happens when disputes arise as to whether the level playing field afforded to all candidates and electoral associations by the spirit of the law, is actually being realized in practice......what happens when in the course of the campaign candidates and electoral associations feel that their rights related to the use of mass media are being denied......when it is perceived that participants are abusing their rights.....when journalists or government officials are using their position to interject unfair bias through the mass media.......or, when complaints are brought, questions remain as to whether they have been satisfactorily answered.
It isn't really surprising that disputes between candidates arise during the campaign. After all, candidates are competitors, and the stakes are high. But when it comes to questions or disputes pertaining to the law and how it is applied.....whether decisions and actions taken by officials of state bodies, representatives of the media, election officials interject an unfair bais..... or, whether courts or other adjudicating bodies are independent in their review of cases relative to the election.....we must be bound to a higher standard if the principles of fairness are to be achieved.
In truth, evidence of our success in creating a free, fair and equal media and campaign environment is when we can say there are no disputes over the unimpaired exercise of rights, or uniform application of law. This is what we should all be striving for. Resolution of disputes through the time consuming adjudication process should be our last resort, because no matter how competent or how just the final resolution and decision may be, we are left with the fact that level playing field on which the campaign period has been playing out has been irreparably altered.
I believe that there are 5 key ingredients are necessary to create the pre-election campaign and media environment we strive for.
1. Laws and regulations must be clear.
2. All participants must have full access to the laws, rules and regulations and be able to understand them.
3. Laws must be enforceable.
4. Administrators must be able to apply the laws uniformly and consistently.
5. All participants must be equally willing and committed to comply with the laws in spirit and in practice.
I'd like to address a few of these elements and pose issues, which I believe may impact the elections immediately at hand. The laws must be articulated clearly and to the extent possible, devoid of opportunities for subjective interpretation or selective application. Sometimes even the inadequate or ambiguous definition of terms will be sufficient to cause misunderstandings and challenges to the system. Two examples come to mind. The law charges the CEC «to create equal conditions» for the pre-election campaign. We must ask ourselves what that phrase is intended to mean, for our definition will have significant bearing on how we formulate our procedural regulations and how we judge the degree to which the participants and the media carry them out. Is the law intended to mean, «exactly equal terms» or does it mean «creating equal opportunities» for candidates. When it comes to use of the media, does it mean exactly equal air time, or access to air time on equal terms? Under the latter, for example, we may be less concerned to see that every candidate receives the exact same number of minutes or the exact number of lines of newspaper space, as we would be concerned to ensure that each candidate has access to media under equal conditions. If free campaign time is given to one candidate, it is given to
all candidates, or that if time is purchased, the terms and fees applicable to one candidate are the same for all candidates.
In the laws governing these elections candidates are guaranteed free air time on state radio and TV at no charge. While it might be relatively straightforward to determine how many minutes will be allocated taking into consideration the number of candidates, a pertinent question is how are we defining «state media.» Again, the manner of definition will play significantly on how relevant regulations are drafted. Does «state media» mean nationwide state media....or does it mean media which is sponsored or funded from the budgets of state bodies? Does it mean media sponsored totally by the state or those who receive partial funding by the state? How much funding.....51%? There may also be some confusion within the text of the laws as to whether presidential candidates are entitled to free time on municipal radio and TV within the territories. Under Article 24 of the Law on Basic Electoral Rights, candidates and electoral associations are entitled to free time on «state and municipal radio and TV «within the territories of «relevant» districts.» It could be argued that since presidential candidates do not run on a «district» basis, as would candidates for the Duma, for example, free use of municipal radio and TV might not apply. Under Article 40 of the Law on Election of President candidates are entitled to time on TV and radio and «financed at the expense of the respective budgets of state bodies.....federal?..... subject?, ....municipal?
And in the midst of all this there is a serious omission that has already prompted questions that will continue to provide room for controversy. Nowhere do the laws governing these elections address the obligations of independent media in the pre-election campaigns. Are they bound by the same principles as state media in providing equal access to candidates? Just as importantly, is the umbrella of the CEC's mandate to «create equal conditions» for the pre-election campaigns sufficient to allow the Commission to adopt regulations covering independent media, when the full text of their mandate makes no reference to independent media? Or, if they were to do so would they be overstepping their mandate? If the CEC is not the authority to regulate the independent media for the purpose of pre-election campaigns, who is? If a responsible independent medium were to formalize their own policy statement as to how they will deal with candidates and their propaganda, to whom could they present it for review to ensure that it meets their legal obligations?
All participants must have full access to all the rules, which will apply. One cannot play by the rules unless one knows what they are. I think this is a challenging task in the Russian Federation because there is no one law that covers the issue. A maze of laws, regulations, and instructions may apply. I would also suggest that participants must have the rules well in advance. The campaign period is very short, and it is critical that candidates, electoral associations and mass media have time to absorb the requirements imposed by regulations in sufficient time for them to plan their activities and establish their strategies. Strategies should be explored by election commissions to affirmatively address the dissemination of regulations and instructions that will directly affect individual groups of participants. I would strongly encourage preparation of instructional materials that distill the text of laws into laymen's language targeted to specific audiences, and implementation of an ongoing dissemination plan to ensure that affected participants are adequately informed. As meaningful competition continues to grow in the evolving democratic atmosphere, traditional practice of passive outreach simply relying on publication of such critical materials in the official gazette may no longer be sufficient.
Laws must be enforceable; a law that cannot be enforced defeats itself. I think we would agree that a number of issues are already arising as to how the current laws are to be enforced. We've certainly seen questions arise in the process of gathering signatures on nominating petitions. And, I suspect recent and current experiences are telling us that enforcement will be particularly difficult in the areas of the pre-election campaigns, as well as campaign financing and reporting.
Laws must be such that they can be applied uniformly and consistently. This is probably the most fundamental ingredient in creating free and fair conditions. If there is one area where I wonder if it is even possible to meet such standards, it relates to articles of law, which attempt to provide order and propriety to the campaign by using language that is vague and particularly vulnerable to subjective interpretation. They include the many references to prohibitions against campaign propaganda that «violates standard ethical norms» or to propaganda, speech or use of a person's name in a way that insults a person's honor, dignity or reputation. Legitimate questions arise as to how this will play out as candidates confront each other, and criticize each other's records or programs for the future. How do we consistently define «standard ethical norms» or measure what «insults honor, dignity or reputation?» What criteria can we apply in adjudicating grievances on such matters? These are questions that are certainly not unique to the election laws of the Russian Federation. It is like asking «How do we define art, and conversely, what is «obscenity?»
Ultimately the answer seems to be, «I don't know how to define it, but I know it when I see it!» When it comes to political campaigns, perhaps the answer is the same. So we must ask ourselves how we can sufficiently define «ethical norms» or «insults to honor, dignity and reputation» by criteria that can be uniformly and consistently applied. And, who should bring such complaints? Should it be incumbent on a person who believes he has been offended to bring such complaints? Or, should officials of state bodies or members of commissions independently monitor the campaigns and make decisions as to what cases should be brought? And, how do we contain the potential for subjective bias to be interjected into the process, which could result in preferential advantage to some candidates over others?
In western democratic contexts, elections officials are generally removed from such debates. Campaigns remain in the public domain, with virtually no interference or intervention by the state or election administrative bodies. It is left to the electorate to observe the campaigns and to decide for themselves how to judge the character, integrity, honesty and dignity of the candidates. When it comes to fairness and credibility, they may not be able to define it, but they'll know it when they see it.
Finally, we must recognize that no law can achieve the ultimate goals of democracy by all by itself. Its true success is ultimately dependent on the willingness and commitment of all participants to share responsibility for the fulfillment of its principles in practice.....and in spirit.