Analysis & Comments Regarding the Current Draft of «The Federal Law On Electing Deputies To The State Duma Of The Federal Assembly Of The Russian Federation»
Moscow, May 1999
On December 19, 1999, citizens of the Russian Federation will again elect Deputies to the State Duma of the Federal Assembly of the Russian Federation. A newly revised draft of the federal law governing these elections is currently being considered by the State Duma.
This draft law incorporates significant revisions to Russia's Law on Basic Guarantees of Electoral Rights, which were adopted on March 30, 1999. That law and this draft reflect the extensive experience of Russians in conducting elections during the past decade, and are the product of hard work and serious thought of election experts in the State Duma and Central Election Commission (CEC). As a result of this legislative process, the draft law expands, refines, and improves the election law that governed the elections for State Duma in 1995, which was itself a substantial improvement from the decree governing 1993 Duma elections.
The International Foundation for Election Systems (IFES) has provided information and analysis to assist development of election laws and procedures in Russia since 1993. IFES has worked particularly closely with both the State Duma and the CEC during the months leading up to presentation of this draft law. To further assist the Duma in refining the law before final passage this summer, IFES offers the following regarding the current draft of the federal law for elections to the State Duma.
In addition to the specific observations and suggestions in the attached Comments, IFES takes this opportunity to stress the importance of seeking mechanisms for provision of greater transparency and accountability in the election process. These mechanisms should be sought both within the procedures established by law and through practices within a democratic civil society. Two elements of the election process would benefit most from this effort: 1) regulation and disclosure of political finance activity, and 2) adjudication of complaints, resolution of disputes and enforcement of the law.
In the area of regulation and disclosure of political finance activity, IFES has long advocated that limitations upon contributions to candidates and electoral associations and blocs, and upon their overall campaign expenditures, should not be set unreasonably low. However well intended, severe limitations upon political giving and spending tend to stifle political action and, as evidenced from prior elections in Russia, encourage widespread, unreported «off-the-books» financial activity that wholly thwarts the law's purposes. Compliance with legal requirements for reporting campaign receipts and disbursements by candidates and electoral associations and blocs must be strongly encouraged and enforced.
The new draft law improves the capacity of the election laws to achieve these objectives; specific recommendations can be found in the attached comments.
IFES will continue to offer suggestions for further improvement, but again wishes to note the substantial progress and fundamental opportunity represented by this current federal law for elections to the State Duma. IFES looks forward to the elections in December as another milestone in development of democracy in the Russian Federation.
Should you have any questions or comments, please do not hesitate to contact us at our earliest convenience at the address mentioned above.
1. General observations and suggestions on the draft law.
The draft Federal law «On electing deputies of the State Duma of the Federal Assembly of the Russian Federation» is now meaningfully different from the standing federal law of April 28, 1995. Many of the innovations 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, as further amended and expanded by the federal law of March 30, 1999. The latest changes were intended to provide a stronger legal foundation for holding fair and free elections of deputies for the State Duma.
Initially, 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 is often fully justified. Sufficiently specific legal rules, of course, help assure credibility in the overall effort to regulate different aspects of the electoral process and diminish the risk of ambiguities in reading the pertinent provisions of the particular federal law. However, 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 administrative regulations written to order the best sequence of steps while exercising the electoral procedures. As a consequence, the draft law has become complicated and cumbersome, and even the experts are likely to have difficulty reading it.
Explicit and clear-cut wording of electoral procedures is essential for this kind of legislation. The legal rules governing elections are expected to be used by citizens that generally lack specialized legal education. At some point, the effort to give precise guidance for every element becomes overwhelmed by sheer complexity and volume, and the rules can no longer be absorbed and understood.
Moreover, some of the specific regulatory procedures contained in the draft law will deserve careful scrutiny during this next election period to assess their real legal and political consequences in practical application. 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 will be linked in the following comments to the specific provisions in this draft law.
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 fully solve the problem of misappropriation of famous names. 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 several repetitious procedural items. 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 noted earlier in the IFES comments 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), the ban on taking advantage of an official position or status should not be limited exclusively 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. Also, 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 not apply to the uses of the aforementioned facilities and services for the purposes of setting up election headquarters created by the candidates, electoral associations or electoral blocs. This demonstrates that making the general legal rules excessively specific might, in fact, generate unwelcome gaps in the regulatory policies.
The draft law's ban on charity activities pursued by the organizations listed under Clause 4, Article 41, might lead to the following absolutely 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 normal operations. This could result if one of the founders or senior managers of the given organization is voluntarily nominated either as a candidate or authorized representative of an electoral association or electoral bloc. In this unfortunate circumstance, 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 permit removing individual candidates from the lists of candidates, and rules for candidates either to withdraw their candidacies on their own initiative or be recalled. But some 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 previously received by the candidates, electoral associations or electoral blocs no longer competing in the election appear to be stringent to the extreme. These legal rules merely serve to encourage competing candidates, electoral associations or electoral blocs, whose popularity or poll ratings have proven to be extremely low before the election day, to persist and carry on throughout the pre-election campaign. Essentially, this rule has been drafted to provide for more efficient commitment of budget resources. However, there are other ways to accomplish this. One of the options could be to not provide, or provide only minimal, government financing of the campaign activities of candidates, electoral associations or electoral blocs in advance of the election, in favor of having post-election funding support linked to the votes secured by individual candidates or lists of candidates.
Numerous provisions of the draft law are devoted to requiring disclosure of information regarding the candidates' previous criminal convictions that have not been expunged or lifted. The objective of these provisions is understandable, but 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; not all foreign court rulings would be readily recognized within the confines of the Russian Federation. It is yet to be determined the extent to which deadlines for expunging crimes under foreign laws would be fixed for crimes committed outside Russia, and how they could be reconciled with Russian practices.
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. That could lead to significant voter confusion.
A good innovation is found in the draft law's Article 47, which seeks to resolve situations 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 eliminate 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. It prescribes a procedure for defining the list of broadcast and print media outlets that should provide equal and fair campaigning conditions for both registered candidates and electoral associations or electoral blocs that certified federal lists of candidates.
Also, a positive step is the draft law's defining of quotas for free-of-charge air time and print media space made available to candidates on nationwide federal lists of candidates, candidates included in regional groups, and candidates nominated by electoral associations or electoral blocs to run in single-mandate electoral districts.
In contrast, 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 example, stipulates the procedure for conducting 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.
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 could prove somewhat confusing. These violations of the standing legislation may 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». Moreover, the draft law is not specific about the nature or extent of violations of existing intellectual property laws would deserve being prohibited, and how such violations could be proved during the election period.
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 is a significant improvement compared to the egalitarian approach codified in the current federal law. However, this new procedure holds one significant weakness. In terms of size, all budgetary subsidies continue to be tied to the previous election results from as far back as four years ago. Clearly, over that length of time some of the formerly strong electoral associations could have lost much of their public support, or could have been either transformed or even eliminated. Funding support for electoral associations or electoral blocs would be better predicated upon the votes secured in the current elections. To do so, 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 a certain number of votes to be appropriately reimbursed out of the budgetary funds. This procedure would reduce the tendency to exaggerate the influence of previously strong political forces under the conditions of a 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», Article 62 of the draft law stipulates much higher ceilings for contributions from electoral associations, electoral blocs, legal entities or private individuals to the electoral funds of candidates or election blocs. The financing ceilings have particularly been augmented (tenfold) for legal entities. It is hoped that this disproportional boost will prove justified given the past practices when donor organizations working in support of their candidates, electoral associations or electoral blocs relied upon «off the books» services and resources provided by intermediary persons or organizations in order to bolster the financial backing of their favorites. A ban on any electoral fund contributions from legal entities legally registered for less than one year before the scheduled election day should also serve to discourage the old practices.
Paragraph 6 of Article 62 should conclude with the following statement: It is prohibited to use any funds, personnel, facilities, supplies, materiel, equipment or other resources of bodies of state power or local self-government in support of any candidate, registered candidate, electoral association, electoral bloc. Paragraph 8 of Article 62 should also be amended as follows (changes in bold):
A candidate, registered candidate, electoral association, electoral bloc shall not use any funds to make payments for collection of voter signatures, conduct of the election campaign, propaganda or agitation to influence voters, holding of other election events, including those related to the use of premises, transportation and communications means, other than the funds which have been deposited in accounts of their electoral funds. A candidate, registered candidate, electoral association, electoral bloc shall not cause, authorize or approve use of other funds by any other person or organization for such campaign purposes. A candidate, registered candidate, electoral association, electoral bloc may use only the sums which were remitted by senders to the special electoral accounts of their electoral funds prior to voting day in accordance a procedure established by this Federal law.
In addition to tightening legal accountability for political finance activity, implementation of the provisions of the law for reporting by candidates and electoral association and blocs prior to the election must be a high priority of election authorities. Administrative bodies should facilitate full disclosure, access to information and monitoring of political finance reports by the news media, political participants, academics and the general public.
The December 1997 IFES comments on Article 56 (electoral funds) for the previous draft of the law governing elections for the State Duma recommended that the ban of financing election campaigning activities via third parties (either private individuals or organizations) should be given a more explicit and clear-cut wording. IFES reiterates that suggestion, given the seriousness of this problem.
The draft law carries the currently codified limits for the electoral funds to be expended by competing candidates, electoral associations or electoral blocs. However, under the draft law provisions, the electoral fund expenses for the purposes of directly financing campaign activity would be reduced by the size of an electoral deposit placed by the competing candidates, electoral associations or electoral blocs.
It was widely known during the December 1995 State Duma elections that the mass media reported on the established electoral fund ceilings being too low (particularly when it came to financing the campaign activity of candidates running in single-mandated electoral districts). Inadequate campaign funding ceilings often encourage competing 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, the issue of election campaign funding ceilings should be revisited and carefully considered in order to raise the electoral fund ceilings to realistic and practical levels.
A good innovation is found in 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.
This person serving as a proxy could also be designated with the task of completing relevant financial statements and having those submitted to the pertinent election commission (the requisite legal rules could be recorded under Article 66 of the given draft law). This delegation of authority should in no way leave a candidate unaccountable for due application of the established procedures for funding an election campaign and filing of 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 would appear to be sufficient.
Clearly, the draft law's provisions designed to help assure scheduled submissions of financial statements by competing candidates, electoral associations or electoral blocs serve to greatly improve the transparency of election campaign financing. It should also be noted that the deadline for the second financial statement should be brought a little closer to the election day, with the relevant time frame being diminished accordingly (perhaps no sooner than 15 and no later than 10 days before the election day). The bulk of financial transactions maintained by the competing candidates, electoral associations or electoral blocs normally transpire on the days that are relatively close to the election day. Tightening the time frame for relevant financial statements to be submitted could provide for better comparisons of the reporting documents filed by competing candidates, electoral associations or electoral blocs.
The area of complaint adjudication, resolution of disputes and enforcement of the law could also benefit from greater transparency and increased scrutiny by elements of civil society. This process would be furthered by adoption of an approach previously recommended by IFES: the law should provide for reasonable and graduated penalties for non-compliance with technical requirements of the law, so as not to turn every election law violation into a choice for election authorities between ignoring the conduct or imposing severe political or criminal penalties.
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 to be disclosed publicly. Those stipulated levels appear to be extremely high. High threshold amounts would make it difficult for the public and other political participants to receive complete information on the funding dimension of the election campaign pursued by competing candidates, electoral associations or electoral blocs, and defeat the purpose of disclosure requirements.
Particularly unwelcome are some of the provisions under Article 67 of the draft law. 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. They would inject a negative and disruptive influence into the electoral process. 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 inadequate regulations as to those election campaign participants. These rules contradict the principles for 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 outlets. The procedures stipulated by Clauses 13-15, Article 67 of the draft law, for the interested parties to recover these resources through the courts would give rise to a tremendous amount of civil-liability problems that would overwhelm efforts to resolve disputes on this issue.
5. Settling electoral disputes.
Along with the general rule on the timelines for addressing the disputes filed in the course of election campaigning (Clause 12, Article 90), the draft law also includes other rules stipulating the timelines for resolving of election-related disputes and 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 candidates could be appealed before the Supreme Court of the Russian Federation, which must 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).
Article 90 of the draft law should include a provision providing for expedited consideration of appeals per certain categories of electoral disputes. However, simply repeating the general rule on the timelines for addressing relevant appeals per certain categories of electoral disputes (see Article 47) should be avoided.
A good improvement is provided in Clause 6, Article 92 for curtailing the grounds for ruling the elections invalid. This rule stipulates that illegal actions undertaken by the losing candidates, electoral associations or electoral blocs that have not taken part in the allocation of deputy mandates could not provide sufficient grounds for the election results to be invalidated. This provision could minimize the risks of arbitrary or biased court rulings that might base invalidation of elections on irrelevant grounds.