Commentary on the latest draft of the federal law «On electing deputies of the State Duma of the Federal Assembly of the Russian Federation»
Moscow, April 1999.
1. General observations and suggestions on the draft law
The drafted federal law «On electing deputies of the State Duma of the Federal Assembly of the Russian Federation» comes to be meaningfully different from the standing federal law of April 28, 1995. Many of the novelties in the draft law have been predetermined by the federal law «On basic guarantees for the voting rights and the right of citizens of the Russian Federation to take part in a referendum» of September 19, 1997 with the relevant amendments and additions appropriately introduced by the federal law of March 30, 1999. The latest changes have been designed to build up a more perfect legal base in order to provide for the holding of fair and unfettered elections of deputies for the State Duma.
In the first place, one can not help taking notice of the tremendously augmented detailing of nearly all electoral procedures which, inter alia, has served to increase the law's physical volume. Understandably, this approach now and again is fully justified, for the adequately specified legal rules, of course, help assure the right level of credibility in the overall effort to regulate different aspects of the electoral process and rule out the risk of ambiguities in reading the pertinent provisions of the federal law in question. However, we hold that the law drafters have not fully succeeded in keeping the legal rules from being overloaded with details. Some of the legal provisions appear to be reminiscent of specific items carried by a prescriptive document written to order the best sequence of steps while exercising the electoral procedures. As a consequence, the draft law has become heavily overloaded, and even the experts are likely to have difficulty reading it. Notably, the explicit and clear-cut wording of electoral procedures makes a crucial requirement for this kind of legislation, particularly, given that the legal rules under the circumstances are expected to be used by the citizens that generally lack the specialized legal education.
In our judgment, some of the specific solutions held by the given draft law demand that we should look more carefully into the likelihood of legal and, which could not be ruled out in a number of situations, political consequences that might be generated by an application of the drafted regulatory procedures. Then, the draft law also holds some contradictions and excessive repetitions that should best be eliminated in the process of finalizing the document.
These general observations and suggestions shall duly be tied to the specifics further below as we look closer at some of the chapters of the draft law in question.
2. Nomination and registration of candidates (lists of candidates)
The rule of Article 34 (Clause 2) on the authorized use of a private individual's first name and family name in the title of an electoral bloc with the permission of the given individual under certain circumstances is unlikely to appropriately provide for the task in question. In principle, authorization for the use of the sought-after name could easily be secured from an individual that happens to have the first name and family name of a broadly known politician.
Articles 37 (Clauses 4 and 5) and 38 (Clauses 6 and 7) hold quite a few replicated procedural items. Arguably, those items could be brought together under a separate article.
The draft law does not specify how (either through secret or open voting) a decision to nominate a candidate running in a single-mandated electoral district or a decision to endorse a federal list of candidates shall be passed by a congress (conference) of representatives of electoral associations making up a single electoral bloc (Clause 4, Article 38; Clause 2, Article 39).
As was already pointed out in the IFES commentary on amendments and additions to the federal law «On electing deputies of the State Duma of the Federal Assembly of the Russian Federation» (February 1998), it would be best not to have the ban on taking advantage of an official position or status limited exclusively down to the given candidate's activities, as it now follows from Article 41 of the draft law. It would be more feasible to make this ban also attributable to the activities pursued either by relevant candidate agents or authorized representatives of electoral associations and electoral blocs. Apart from that, the list of office or official status abuses carried by Article 41 appears to be incomplete. The third paragraph, Clause 2 of Article 41, prohibits the use of certain communications facilities and office equipment of state organizations or bodies of local self-government exclusively for the purposes of collecting voter signatures and engaging in pre-election campaigning. This ban appears to be non-attributable to the uses of the aforementioned facilities and services for the purposes of setting up election headquarters created by the running candidates, electoral associations or electoral blocs. This particular example, inter alia, attests to the fact that the given law drafters's bent on making the general legal rules excessively specific might, in fact, generate unwelcome gaps in the regulatory policies.
In our judgment, the draft law's ban on charity activities pursued by the organizations listed under Clause 4, Article 41, might lead to the following wholly inadequate result. For the entire duration of the pre-election campaigning, the organizations whose core competencies are charity engagements pursuant to the existing charters could effectively be compelled to freeze their operations for reasons totally unrelated to their business policies. This unhappy circumstance could easily be brought about by one of the founders or senior managers of the given organization voluntarily getting nominated either as a candidate or authorized representative of an electoral association or electoral bloc. In this connection we maintain that the aforementioned constraints are wholly inapplicable to the commitments pursued by charity organizations. Similar questions are generated by the draft law's Article 48.
The experience of holding the December 1995 State Duma elections explicitly confirmed the need for detailed regulatory procedures to have individual running candidates removed from the lists of candidates, and rules for the candidates either to withdraw their candidacies on their own initiative or be recalled. Meantime, some of the provisions of the draft law's Article 51 on the obligations of an election commission to proceed in certain cases and recover the budget resources duly received by the relevant running candidates, electoral associations or electoral blocs appear to be stringent to the extreme. This sort of legal rules merely serve to incentivize the running candidates, electoral associations or electoral blocs, whose straw-poll ratings have proven to be dangerously low well before the election day, to persist and carry on throughout the pre-election campaign. Essentially, this rule has been drafted to provide for more rational commitment of the budget resources. However, there are other ways to do this job. One of the options could be to give up early government financing of the campaigning drives maintained by candidates, electoral associations or electoral blocs and have the possibility in principle for relevant funding support linked to the votes secured by individual candidates or lists of candidates.
A whole range of the given draft law's articles hold the rules demanding disclosure of information on the candidates' previous convictions that have not been expunged or lifted. While wholly advocating the utility of such legal novelties, we should nonetheless underscore that some problems of practical nature are certain to crop up should these rules begin to be applied. To provide an example, it is not always easy to explicitly determine if the given candidate was convicted under legislative acts of a foreign state for actions qualified as crimes by the current Criminal Code of the Russian Federation. Besides, it is by far not all foreign court rulings that would be readily recognized within the confines of the Russian Federation. Then, it is yet to be determined in keeping with which foreign legislation conviction expunge deadlines would be fixed for the crimes committed outside Russia.
The draft law's legal rule (replicated from the federal law «On the amendments and additions to the federal law «On basic guarantees of the voting rights and the right of citizens of the Russian Federation to take part in a referendum») stipulating the right of a candidate to take on an alias, should the given candidate happen to have a namesake, might provoke the use of the broadly known politicians' names for campaigning purposes. This could heavily contribute to the electoral process getting out of control.
Making a good novelty are the rules (the draft law's Article 47) to find settlements whenever a candidate happens to have been granted registration by several electoral districts in violation of the procedure established by the law. The newly drafted rules would effectively take out the relevant uncertainty that the standing legislation suffers from.
3. Participation of the mass media in pre-election campaigning
Of critical importance is the draft law's Article 55 prescribing a procedure for defining the list of broadcast and print media vehicles that should provide equitable campaigning conditions for the registered candidates, on the one hand, and electoral associations or electoral blocs that command their confirmed federal lists of candidates, on the other.
Also, noted on the upside should be the fact of defining the quotas for free-of-charge air time and print media space made duly available to the candidates carried by the nationwide segment of the federal list of candidates, candidates included in regional groups, and candidates nominated by electoral associations or electoral blocs to run in single-mandated electoral districts.
Meantime, we maintain that the draft law in a number of cases provides for over-regimented regulation of the relationships between the running candidates and the mass media. Clause 19, Article 56 of the given draft law, for one, stipulates the procedure for running relevant financial transactions in terms of banking and accounting legislation rather than through the use of the language of electoral laws. This sort of regulation should best be provided by the appropriate directives or guidance documents issued by the Central Election Commission of the Russian Federation in collaboration with the Central Bank of Russia. The same observation applies to Clause 15, Article 57.
Excessive repeats of the requirement for the campaigning expenses to be exclusively covered with the use of relevant electoral funds (Clause 20, Article 56; Clause 16, Article 57) appears to be too much of a good thing. A single generally-worded provision would suffice for this critical legal rule to be duly recorded.
In our judgment, the wording of a special provision (Clause 1, Article 60 of the draft law) on banning any campaign propaganda activities that run counter to the current laws of the Russian Federation on intellectual properties appears to be somewhat confusing. Firstly, this sort of violations of the standing legislation could very well be viewed as isolated manifestations of «other forms of the misuse of free access to the mass media in contravention of the current legislation of the Russian Federation». Secondly, the draft law is not specific about the violations of the existing intellectual property laws that come to erode the established procedure for campaigning propaganda engagements.
4. Funding of elections
The procedure (Sub-clause 6, Clause 4, Article 62 of the draft law) for the Central Election Commission of the Russian Federation to allocate budget resources to relevant electoral associations or electoral blocs surely makes a meaningful improvement as brought against the egalitarian approach codified in the current federal law. Admittedly, this procedure holds one significant weakness. In terms of size, all budgetary subsidies continue to be tied to the previous election results that might have been held as far back as four years ago. Clearly, over that lengthy stretch of time some of the formerly strong electoral associations could have lost much of the public support. What is more, they could have been either transformed or even eliminated. In our judgment, the funding support for electoral associations or electoral blocs should best be predicated upon the votes secured in the current elections. To make that a reality, a procedure could be introduced for part of the pre-election campaigning expenses borne by the electoral associations or electoral blocs that managed to win the fixed numbers of votes to be appropriately made up for out of the budgetary funds. This procedure would obviously work against preserving the influence of the current political forces on the voter sentiments under the conditions of rapidly evolving political environment.
As compared against the current federal law «On electing deputies of the State Duma of the Federal Assembly of the Russian Federation», the draft law (Article 62) stipulates augmented ceilings for resources allocated by electoral associations, electoral blocs, legal entities or private individuals to build up the relevant electoral funds. The financing ceilings have particularly been augmented (tenfold) for legal entities. One can only assume that this disproportional boost is fully justifiable, especially given the past practices when the larger-donor organizations working in support of their candidates, electoral associations or electoral blocs resorted to the services provided by mediating organizations in order to bolster the financial backing of their favorites. A ban on any electoral fund contributions from the legal entities appropriately registered within less than one year before the scheduled election day would also serve to phase out the old practices.
The December 1997 IFES commentary on Article 56 (electoral funds) in the previous draft of the given federal law already carried a suggestion that the ban on financing election campaigning activities via third parties (either private individuals or organizations) should be given a more explicit and clear-cut wording. Understandably, for the aforementioned problem to be taken out, this suggestion continues to stand.
The draft law carries the currently codified limits for the electoral funds to be expended by the running candidates, electoral associations or electoral blocs. However, under the draft law provisions, the electoral fund expenses for the purposes of directly financing the relevant campaigning engagements would be reduced by the size of an electoral deposit placed by the running candidates, electoral associations or electoral blocs.
As is well known, in the days of the December 1995 State Duma elections the mass media reported on the established electoral fund ceilings being too low (particularly , when it came to financing the campaigning engagements pursued by the candidates running in single-mandated electoral districts). Understandably, inadequate campaign funding ceilings under certain circumstances might urge the running candidates to seek out extra sources of financing in circumnavigation of the standing legislation. Hence, given the current domestic circumstances and inflation rates over the past four years, there appear to be sufficient grounds for the issue of election campaign funding to be revisited in order to raise the electoral fund ceilings to the right levels.
A good novelty is carried by Clause 4, Article 63 of the draft law, stipulating a candidate's power to delegate his/her authority to another person to open a special electoral fund account as well as dispose of the resources put in the said banking account.
In our judgment, that proxy person could also be committed to complete relevant financial statements and have those duly submitted to the pertinent election commission (the requisite legal rules could be recorded under Article 66 of the given draft law). Meantime, this sort of power-sharing should in no way leave a candidate unaccountable for due application of the established procedures for funding an election campaign and filing in the concluding financial statements.
The rules (Clause 9, Article 64 of the draft law) for recovery of an electoral deposit appear to be excessively demanding. Given that quite a large number of candidates, electoral associations and electoral blocs could be found concurrently running in the same electoral district, three-percent voter support levels for individual candidates and five-percent support levels for electoral associations or electoral blocs appear to be sufficiently impressive.
Clearly, the given draft law's provisions designed to help assure scheduled submissions of financial statements by the running candidates, electoral associations or electoral blocs amount to a meaningful contribution to improving the transparency of election campaign financing. At the same time, it needs to be noted that the deadline for the second financial statement should be brought a little closer to the election day, with the relevant window of opportunity being diminished accordingly (say, no sooner than 15 (or 12) and no later than 10 days before the election day). This obviously has to do with the fact that the bulk of financial transactions maintained by the running candidates, electoral associations or electoral blocs normally transpire on the days that are relatively close to the election day. Also, it should be kept in mind that the move to contract the window of opportunity for relevant financial statements to be submitted could provide for better comparisons of the reporting documents filed in by the running candidates, electoral associations or electoral blocs.
Clause 6, Article 66 of the draft law, stipulates both the levels of transfers into electoral funds and limits of electoral fund spendings that are supposed to be made public. In our judgment, those stipulated levels appear to be somewhat overblown, which would make it rather difficult for the public and other campaigning participants to receive fresh and complete information on the funding dimension of the election campaign pursued by the running candidates, electoral associations or electoral blocs.
Particularly unwelcome are some of the provisions under Article 67 of the draft law. We believe that the rules for the electoral fund resources to be recovered by the candidates that have secured under three percent of the votes, or that have withdrawn their candidacies «with no overwhelming circumstances in evidence», or by an electoral association that has secured under two percent of the votes appear to be excessively stringent and could only serve to have a prohibitive measure of irritants thrown into the electoral process as a consequence. The procedures for the candidates, electoral associations, electoral blocs, television and radio networks, as well as print media companies to recover the cost of the used free air time and print media space in keeping with the techniques suggested by Clause 9, Article 67, appear to be a set of inadequate policies with regard to the aforementioned election campaign participants. These rules come to contradict the legal rules on campaign propaganda activities under which the running candidates, electoral associations or electoral blocs have the right to air time and print space provided free-of-charge by broadcast and print mass media vehicles accordingly. The procedures stipulated by Clauses 13-15, Article 67 of the draft law, for the interested parties to recover the said resources through the courts would give rise to a tremendous amount of civil-liability issues that for the most part would hardly be effectively resolvable.
5. Settling the electoral disputes
Along with the general rule on the timelines for addressing the disputes filed in the course of election campaigning (the rule being recorded under Clause 12, Article 90 of the draft law), the given draft law also carries other rules stipulating the timelines for tackling separate categories of election-related appeals.
In particular, pursuant to Clause 8, Article 40 of the draft law, a refusal to accept the election-related documents and release copies of the lists of running candidates could be appealed before the Supreme Court of the Russian Federation that shall address the appeal no later than within three days of receiving the appeal. Clause 10, Article 47 of the draft law, fixes a five-day deadline for the courts and the Central Election Commission of the Russian Federation to consider the appeals against the electoral authorities refusing to grant registrations to candidates (lists of candidates).
In our judgment, Article 90 of the draft law should include a provision providing for expedited consideration of appeals per certain categories of electoral disputes. Any replication of the general rule on the timelines for addressing relevant appeals per certain categories of electoral disputes (see Article 47) should best be avoided in the given draft law.
A good improvement is provided by curtailing the grounds for ruling the elections invalid. Recorded under Clause 6, Article 92, this rule stipulates that illegal actions undertaken by the losing candidates, electoral associations or electoral blocs that have not taken part in the share-out of deputy mandates could not provide sufficient grounds for the election results to be invalidated. This provision could minimize the risks of biased court rulings on that category of electoral disputes.
April 29, 1999
A. Postnikov
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