Analysis & Comments Regarding the Current Draft of The Federal Law On Elections Of The President Of The Russian Federation
Moscow NOVEMBER 1999
Christian Nadeau, Esq.
Legal Department Director
Legal Advisor, Institute for Legislation
And Comparative Law
Citizens of the Russian Federation will again elect their President in the coming year. A newly revised draft of the Federal Law governing this election is currently being considered by the State Duma (the «Draft Law»). This Draft Law incorporates significant revisions to Russia's Law on Basic Guarantees of Electoral Rights, 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 by election experts in the State Duma and the Central Election Commission of the Russian Federation (CEC RF). As a result of this legislative process, the draft law expands, refines and improves the election law that governed the elections for the President in 1996.
The International Foundation for Election Systems (IFES) has provided information and analysis to assist in the development of sound election laws and procedures in Russia since 1993. IFES has worked closely with both the State Duma and the CEC RF during the months leading up to presentation of this Draft Law. In this regard, IFES proposes a clarification to the Presidential Election Law that will allow election-related work that is politically neutral, such as voter education programs and nonpartisan efforts to support the work of election commissions as well as efforts to support the institutional development of political parties on the part of like-minded foreign parties.
In addition, IFES takes this opportunity to stress the importance of seeking mechanisms for greater transparency and accountability in the electoral process. These mechanisms should be sought both within the procedures established by law and through actual practices within a democratic civil society. Based on international experience and the observation of the development of the election framework in Russia, we can highlight three key areas of the Draft Law that could benefit from further review: election administration, mass media and campaign finance.
To assist the Duma in refining the Draft Law on Elections of the President, IFES offers the following specific observations and suggestions in the attached Commentary.
1) Election Administration
The Draft Law includes the main parameters of an election system used for presidential elections: nominators and form of nomination of candidates, voting procedures, and procedures for determining election results. IFES has identified three areas where changes could significantly improve the current Draft Law. First, the establishment of a minimum level of participation of 50% of the voter list could have serious political consequences if this level is not reached on election day - which, as the experience of Ukraine's Parliamentary elections shows, outweighs any benefit of high participation. Second, the scope of normative regulation of election procedures is much broader than in the current Federal Law «On Election of President of the Russian Federation.» For example, the Draft Law provides for much tougher sanctions against candidates for violation of various rules laid down by the election law, while leaving little change in the «life or death» approach for sanctions and penalties. It is important that the sanctions established for various offences be adequately «graded» to the gravity of the offence and their application be predictable for the participants in the electoral process. Third, specific changes will undoubtedly strengthen the Draft Law by:
ensuring uniformity of language (i.e., «political public association» is labeled in three different ways);
having predictable time limits (i.e., 90 days instead of three months);
increasing the measures of security in the process (i.e., placing the Precinct Election Commission seal on the ballot only at the time the voter is to receive the ballot);
allowing the Central Election Commission of the Russian Federation to continue to cooperate with international partners during the election process, in support of voter participation, training, and other informational initiatives; and
Addition a provision regarding the consequences of an «act of god» on the outcome of an election.
While IFES believes that the Draft Law as it stands will improve the electoral process, the recommendations and suggestions contained herein are made to further improve the Draft Law and focus the attention of the electoral community on important technical issues. At this time, IFES does wish to note the substantial progress and fundamental opportunity represented by the current Federal Law governing the elections for the State Duma. IFES looks forward to the Presidential elections to be held next year as another milestone in development of democracy in the Russian Federation.
As an intermediary between the voters and candidates, the mass media plays an essential role in the electoral process. While the draft law builds upon the experience of the current State Duma Election Law and the provisions of the Law on Basic Guarantees, the issues of access and coverage as they exist in the Draft Law would benefit from additional thought in two areas: pre-election campaigning and the issue of neutrality of news broadcasts.
International experience demonstrates that an overwhelming majority of countries, such as Canada, France, and the United Kingdom, for example, extensively regulate mass media access, especially TV broadcasts, during an election period. Since these regulations impose limits on the freedom of expression of participants, they are generally limited to short time periods tied to the electoral campaign. The ban proposed in the Draft Law between the time the decision to call for elections is published and the registration of a candidate on all campaigning activities seems to exceed international standards regarding control of the media prior to the registration of a candidate.
While launching their election campaigns, all participants command different levels of political «capital» and different financial, organizational, and other resources. The State's role ought to be the creation of equal conditions for the participants to run during the period of the election marathon and not before, thereby leveling out, to a certain extent, the obviously disparate capacities held by the established frontrunners and outsiders. This is different than providing for a level playing field by eliminating pre-election campaigning altogether.
Furthermore, a definition of what «pre-electoral campaigning» means and the distinction between «campaigning/political advertising» and «informing» is important and we respectfully suggest that such a provision be included in the Draft Law, as was the case in 1993 and 1995 in CEC RF regulations. For example, the provisions issued by the Ukrainian CEC clarified the definition of «political advertising» as «information containing «emotional appeal, creative imagery, repetitiveness, expressiveness, conciseness; with the aim of propagating ideas, views, program documents of a candidate in order to shape his/her political image, create a favorable public opinion about him/her.» In the United States, political advertising, restricted by specific regulations, is generally limited to messages, which directly induce a citizen to «vote for» a candidate. We can provide more examples of international norms as required.
The second issue of neutrality of broadcasts is the regulation, through electoral law, of news coverage of candidates during the election period. This is particularly important in the case of coverage of the campaign activities of incumbents. A broadcaster may cover events of a current office holder as if they were news, when in fact they are campaign events. News coverage of press conferences and public statements made by a candidate who is also a public official (other than conferences and statements that directly relate to his or her official duties) should be subject to equal time rules.
As for defamation in news coverage of the election campaign, in most countries fair coverage is also guaranteed through the standard regulations that affect defamation in civil law. The onus for preventing defamation should rest with the candidate, not the broadcaster. Defamation or an offense against the honor of a candidate should be limited to broadcasts/publications that include a materially false statement, where the speaker knows or reasonably should know that the statement is false and is likely to injure the target's reputation. The European Court on Human Rights has made clear that speakers may not be punished for publishing opinions about public officials, even if offensive, so long as the opinions are not based on a materially false statement or fact.
3) Campaign Finance
In the area of regulation and disclosure of financed political activity, IFES has long advocated that limitations on contributions to candidates and electoral associations/blocs, and limitations on 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, 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/blocs should be strongly encouraged and enforced with graded penalties.
The election law should also distinguish between prohibitions on campaign-related activities and other, politically neutral activities, which should not be prohibited. For example, the development of voter education or rights awareness activities by charitable organizations or the provision of nonpartisan assistance to the election apparatus should clearly be made legal activities.
Finally, IFES notes that while the increase in disclosure reports from candidates is a positive development, we would encourage an additional financial report submitted between voting rounds for increased transparency.
Should you have any questions or comments, please do not hesitate to contact us at our earliest convenience at the address mentioned above.
1. Election Administration
The Draft Law has been prepared in accordance with the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum.» In view of this, many of the legal provisions embodied in the Draft Law were predetermined. Although IFES is aware of the guarantees enshrined in the Law on Basic Guarantees, the comments herein may go beyond the norms established in the said law. IFES also notes that a majority of its recommendations made in the attached report, 1996 Presidential Election: A Technical Analysis, have since been addressed in the Draft Law or other electoral laws. The Draft Law marks yet another milestone in the development of a strong and comprehensive electoral system in the Russian Federation.
The Daft Law includes the main parameters of an election system used for presidential elections: nominators and form of nomination of candidates, voting procedures, and procedure for determining election results. IFES herein identifies several areas where changes could have a significant benefit within the realm of election administration. The issues mentioned below follow the order of the Draft Law.
In our opinion, the overall text of the Draft Law has certain shortcomings from the standpoint of legal techniques and clarity. These shortcomings include the repetition some provisions, variance in the terms used with presumably the same meaning, and formulation of norms for which the compliance with is difficult to confirm. On one hand, the specificity of Russia's legal environment, in particular the absence of stare decisis in the courts, requires a substantial level of detail in its election laws. On the other hand, based on IFES' experience, the expansion of detail in a law makes it increasingly difficult to administer, while reducing the ability of participants in the electoral process to appreciate all the nuances it contains. In some respects, the electoral law is similar to a taxation code in its level of detail and all-encompassing scope.
It is particularly important to highlight the need for consistent use of terminology throughout the text of the Draft Law. According to the standard rules of interpretation, the use of different terms must infer a different meaning. The term «political public association» is defined in the Law on Basic Guarantees within the framework of an electoral association as «a political party, political organization, political movement...» (Art.2). However, what presumably is the term «political public association» is expressed in the Draft Law as an «all-Russian public association»1, an «all-Russian political public association»2, a «political public association»3, or as simply as a «public association.»4 In terms of terminology, the term «political public association» provides a striking example of this issue.
Also, specific deadlines by a responsible party for actions or decisions should be clearly established in the Draft Law. Deadlines should leave no room for interpretation and be consistent. The current draft switches from «no later than 60 days prior» to «60 days prior» to election day causing confusion in the interpretation of the election calendar. These technical details are highlighted as they can distract the political debate from major societal issues to the interpretation of details of the electoral law.
a. International Cooperation
Article 12 of the Draft Law defines the status of election commissions for the election of the President of the Russian Federation. IFES respectfully suggests that the ability of election commissions to enter in cooperative ventures with international organizations and movements who support, in a non-partisan manner, the electoral process be clarified. For example, the CEC RF should be able to continue to cooperate with international partners during the election process, in support of voter participation, training, and other informational initiatives as long as it deems it conducive to its carrying out of its responsibilities for improving the election process in the Russian Federation.
b. Administrative Consideration For The CEC
On another matter, Clause 6 creates uncertainty as to whether a court may take a decision on the substance of a matter when adjudicating an appeal against a decision of an election commission. It is in the interest of the electoral process to empower the electoral authorities with the maximum authority and power. The inherent guarantees offered by a judicial review process requires, in our opinion, that courts have the capability to review the substance of the matter at hand in the interest of expediency and completeness.
ARTICLES 15 and 16
These articles should be clarified to indicate that members of election commissions appointed by registered candidates who lost the first round are removed for the second round. In addition, these articles are rather vague concerning the duties and rights of non-voting members of election commissions. Non-voting members should have a specific term. Normally, non-voting members should have all rights given to voting members except the right to vote. For example, non-voting members should be allowed to sign, as a witness, the protocols of the CEC.
c. Nomination And Registration Of Candidates
One of the positive features of the Draft Law is that it sets forth in more detail the procedures for the formation and functioning of electoral blocs and it establishes more clear-cut requirements for the collection of voter signatures and their verification. The need to address these problems was stressed in IFES' technical analysis of the 1996 presidential elections referenced earlier. An example of this improvement is the allowance for random checks of a sample of the signatures. At the same time, there is room for improvement of the suggested procedures as described below.
Clause 5, under which the registration of an electoral bloc may be refused because of «other violations of this Federal Law,» runs contrary to the principle expressed earlier in this analysis regarding the necessity of having a graded scale of penalties for various violations of electoral law. This formulation creates uncertainty when the question of the registration of a bloc is to be decided, because the law does not contain an exhaustive list of reasons for which a bloc may be denied registration. International experience demonstrates that such an important issue (the denial of registration) should be decided based upon a set of pre-determined conditions, with little discretion on the part of the administrative authority. Note that this same provision is found Clause 3 of Article 39.
While we understand the need to limit possible «escape hatches» for candidates' assets, lawmakers may want to reconsider Article 37(1) (d). This provision requires that candidates, in their statement submitted to the CEC RF, indicate the income and property not only of their spouse but also of their children. It is customary for a candidate or a person who is going to hold an important public office to disclose their income and property. This helps to deter and detect fraudulent persons from holding a public office. On occasion, these disclosure norms also include the spouse of the person. These disclosure norms rarely include children. The requirement for the spouse is quite logical because the candidate and his/her spouse may own common property. Including children of any age under a disclosure regime can put a candidate at a disadvantage for three reasons:
a) An adult child has no legal obligation to disclose his income to his parents;
b) A candidate, and in particular his children, have an inherent right to a private life;
c) A candidate could be disqualified for a false declaration of income for someone over whom he had no control.
IFES respectfully suggests to lawmakers to limit the provision to non-adult children, if such criteria should be maintained at all.
d. Voting Procedures
ARTICLES 63 (10) and 65
Article 63 defines the requirement for the ballot while article 65 regulates voting procedures. The Draft Law generally repeats the procedures that are well defined in the Law on Basic Guarantees. However, there is an opportunity to significantly expand the security of the overall electoral process through a simple measure that has no additional economic cost. Article 63(10) requires the Precinct Election Commission (the «PEC») to seal and sign each ballot they receive without specifying a time limit in which to do so. The current practice is to have the PEC affix their seal and signature prior to election day. This practice increases the risk of having valid ballots go in the wrong hands. Therefore, the purpose of sealing the ballots is almost completely defeated when it is done prior to election day.
IFES understand the constraints imposed by having only one seal at each PEC that serves up to 3,000 voters - one cannot seal each ballot for each voter at the PEC on election day without risking delays. With the dual goal of efficiency and security, IFES respectfully proposes to have the seal of the PEC added prior to the election day - but without signature. On election day, when a voter is admitted to participate in the election (following verification of his name on the voters list) the PEC official can then sign the ballot which validates it. Otherwise, over 105 million valid ballots are stored in more than 90,000 locations for a few days prior to the election process. The signing of ballots at the PEC level on the day of the election will not result in unacceptable delays for the voter given the level of experience of the poll workers and the size of the precincts. This is a simple measure, followed in many countries, which maintains control over ballots until the moment when qualified voters need them. Article 63(10) could be amended to specify when the seal and the signature are to be affixed by the PEC officials.5
Considerable progress has been made in the regulation of procedures for voting outside the polling station. Many suggestions on this subject that have been made by IFES in the past have been embodied in the Law on Basic Guarantees and in the Draft Law. We believe that the Draft Law must state how many ballot papers are to be given to members of a PEC when they plan to conduct voting outside voting premises. The number of ballot papers provided might be given as a percent of the number of applications submitted for voting outside the voting premises, while keeping in mind that voters may spoil some ballot papers. The Draft Law already stipulates in Article 67(4), for example, that no more than three (3) mobile boxes should be used. The extension of this level of control to the number of ballot papers provided to the PEC for voting outside voting premises should also be considered.
e. Voter Participation and Ceilings
Article 72 describes how the results of the election of the President of the Russian Federation are determined. The relevant section (4.a.) of the article reads as follows: «The CEC of the RF shall declare the election ... not to have taken place if: less than half of the voters included in the voters list took part in the election.» The establishment of a minimum level of participation of 50% of the voter list could have serious political consequences if this level is not reached on election day - which, as the experience of Ukraine's Parliamentary elections shows, outweighs any benefit of high participation. What would be the consequences of not reaching this threshold in the first round be? What if the threshold is not met in the second round? Additionally, voting is done on a voluntary basis. However, by establishing a minimum of 50% of participation for the elections to be valid, one voter out of two from the voter list must go and vote. This renders the «voluntary» aspect only applicable to an unidentified half of the electorate. In addition to the political crisis that may ensue if 50% of the voters do not take part in the election, candidates and electoral associations would be penalized by having to campaign all over again, at their expense, in another election. Finally, the establishment of a high quorum may lead some groups to seek to lower participation at any cost to have the legal basis to annul the elections.
For the reasons described above, international experience shows that quorums of participation in national elections are generally avoided. Either voting is compulsory as in Australia and Peru or it is voluntary as in Canada, the United Kingdom, and Germany, amongst others.
f. Sanctions, Penalties, and Adjudication of Grievances
The scope of normative regulation of election procedures in the Draft Law is much broader than in the current Federal Law «On Election of President of the Russian Federation.» For example, the Draft Law provides for much tougher sanctions against candidates for violation of various rules, while making little change in the «life or death» approach for sanctions and penalties. It is important that the sanctions established for various offences and their application be adequately «graded» to the gravity of the offence and their application be predictable for participants in the electoral process. Having penalties that match the level of an offence is essential to ensure a fair process that will not risk disqualifying candidates on simple technical issues.
Also exemplifying the broader scope of normative regulation embodied in the Draft Law are changes that establish fundamentally new conditions for the main participants in the election campaign - candidates, electoral associations/blocs as well as members of election commissions responsible for the organization of the electoral process. Due to this stricter regime, it is highly important that the requirements laid down by the law for the performance of various electoral actions be formulated as clearly as possible, making impossible any arbitrary interpretation on the part of law enforcement bodies.
One should note that international experience shows that enforcement of electoral laws is notably weak in most established democracies.6 This situation is due in part to the political nature of the process, the difficulty in removing from office an elected candidate, the vigor with which candidates under scrutiny will defend themselves- in contrast with the limited resources on the part of electoral commissions for enforcement. This is true in spite of the fact that graded penalties are generally offered in the arsenal of options at the disposal of the enforcing body. Nonetheless, having penalties that match the offence is essential to ensure a fair process and not result in the unnecessary disqualification of candidates on small technical issues.
As a rule, the sanction in the form of annulment of a candidate's registration should be minimized to the worst cases of electoral abuses. Numerous grounds on which a candidate's registration may be annulled are established by Clause 3 of Article 80. These grounds will hang over all candidates like a sword of Damocles and the Draft Law does not make clear what criteria are used to determine whether a violation of law is «essential» or not (with «essential» violations leading to annulment of a candidate's registration). We respectfully propose to define what is an «essential» violation. For example, violations that do not jeopardize normal conduct of the elections should not be deemed «essential» causing disqualification. For the purposes of improving the sanctions regime in the Draft Law, it is necessary to establish a differentiated system of sanctions for violation of election laws.
Clause 6 stipulates that any infraction committed by a losing candidates shall not provide grounds for the results of the Presidential elections to be voided. This rule, although well intentioned, may amount to a most convenient legal shelter for those who may use so-called «dirty» election technologies. Infractions have an impact on election results and this linkage is of critical importance. Clearly, while committing infractions, one can work to have some other party lose (firstly) or a third party win (secondly) rather than secure one's own victory. We respectfully suggest that criteria be added to assist in determining which infractions committed by a loosing candidate are not considered as grounds for the results of the Presidential elections to be voided.
g. Acts Of God And Cancellation Of Elections
Only one provision that regulates «acts of god» in terms of their impact on polling is found in the Law on Basic Guarantees. Article 14(3) states that a referendum shall not be held when a state of emergency is declared in (the) a territory of the Russian Federation, or in the territory where the referendum is to be held; nor within three months after a state of emergency has been lifted. This provision does not cover elections.
International experience with natural and social crises in times of elections shows that basic conditions of infrastructure, social cohesion, and the ability of electoral and governmental authorities to carry out elections are essential for elections to take place in crisis situations. In terms of elections, Caribbean nations, for example, have faced extraordinary situations in times of elections due to cyclones, hurricanes, floods, or other such natural disasters. Their main remedy is to either postpone elections in part of the whole country, depending on the magnitude of the crisis. The coastal states in the United States, such as North Carolina, or Florida, have emergency provisions in their state election law that allow their election commission to suspend or adjourn an election in whole or in part due to «acts of god» according to specific criteria. In the Philippines, in May 1998, national congressional elections were suspended in a small part of the country due to a local rebel insurgency. In the majority of cases, the usual approach is to suspend electoral rights in a geographically limited area within a country in times of crisis.
In this respect, we submit for discussion the idea of the Draft Law containing specific provisions that establish the election procedures to be followed in the event of natural or civil disasters, and in particular, their impact on the determination of election results. It is important that any such provisions clearly delineate which body is responsible for making decisions with regard to this issue and which body or bodies are responsible for the implementation of such an emergency regime as it relates to the elections.
2. Campaigning And Mass Media
The Draft Law generally follows standards of international law with regard to the role of the mass media and the conduct of elections by attempting to establish a level playing field. The Draft Law does this by directly addressing the two key issues of access and coverage. In addition, the Draft Law conforms to international standards by providing free airtime for candidates - further leveling the playing field for all parties.
a. Pre-Registration Campaigning
One of the most important novelties in the latest Draft Law is the provision that any election campaigning during the period between the date of official publication of the decision to call for the elections and the date of the candidate's registration shall be barred (Clause 2). By barring all pre-registration campaigning, the lawmakers have sought to clearly define something that is missing in existing electoral legislation: no similar ban is contained in either the Law on Basic Guarantees or the State Duma Election Law.
A number of critical points should be noted in connection with this ban on pre-registration campaigning. The notion of «election campaigning prior to a candidate's registration» is legally doubtful as all the rules and conditions for election campaigning are exclusively written about the activities of registered candidates. Activities that are conducted by individual persons or political associations prior to the registration of candidates that contain features of election campaigning have nothing to do with early election campaigning. This type of pre-registration activity should be allowed and viewed as politicking, providing educational material, conducting public awareness activity, or any other public function that is carried out by politicians or public associations.
Pre-election campaigning is common in most established democracies - and is also generally unregulated. The reason for this is that such democracies generally have stable political parties who report, on a regular and public basis, about their contributors and expenditures.7 Election laws, if they restrict campaigning, seek to establish clear criteria for the definition of electoral campaigning, on one part, and also establish a clear timeline for campaigning.
In our opinion, the goal of having a clear «starting point» for the election campaign is laudable in itself and consistent with the establishment of a level playing field. However, placing a ban on any election campaigning prior to a candidate's registration appears draconian in the absence of a definition of «campaigning.» In addition, the benefits of having the media informing voters about the issues and reporting on the potential candidates for the Presidency may be hampered by a strict interpretation of such a ban and this would restrict the informative responsibility of the mass media to the detriment of democratic improvements.
Clearly, while launching their election campaigns, all participants command different levels of political «capital» - different financial, organizational, and other resources. Thus, it not possible to speak about equal opportunities to sway the electorate. The State merely ought to attempt to create equal conditions for the participants to run during the election season, thereby leveling out, to a certain extent, the obviously disparate capacities among political parties/candidates.
The current Draft Law defines, in concrete terms, the notion of «election campaigning» as any activity performed by individual persons, electoral associations or political parties in order to urge the voters to participate in the given elections and vote «for» or «against» a specific candidate. In this connection, barring public associations, primarily political parties, from conducting any informational activity or politically charged pronouncements should be viewed as an unfair limit on the basic rights and freedoms of citizens.
In this respect, a definition of what «pre-electoral campaigning» means and the distinction between «campaigning/political advertising» and «informing» is important, and we respectfully suggest that such a provision be included in the Draft Law. Examples of clear definitions of campaigning can be found in the decrees of the CEC RF for the 1993 and 1995 elections. For their current Presidential elections, the Ukrainian CEC clarified the issue by its definition of «political advertising» as information containing «emotional appeal, creative imagery, repetitiveness, expressiveness, conciseness; with the aim of propagating ideas, views, program documents of a candidate in order to shape his/her political image, create a favorable public opinion about him/her.» In the United States, political campaigning, limited to specific regulations, is generally limited to messages that directly induce a citizen to «vote for» a candidate. We will be glad to provide more examples as required on this issue.
Pursuant to Articles 47-52 of the Draft Law, regulations for use of the mass media are established for registered candidates, and these are primarily designed to regulate television and radio campaigning efforts, provide safeguards against preferential treatment through special media access, and elaborate on other restrictions on campaigning efforts in other forms. It is also worth noting that the Draft Law contains no direct ban on election campaign activities that are carried out by individual persons or public associations via the mass media. For the 1999 State Duma election campaign, CEC RF concluded that, except for registered candidates and electoral associations, no one else has «the right to pursue their election campaign propaganda efforts through the use of mass media».8 We respectfully propose that, unlike for the State Duma elections, civil associations and citizens be able to express their political opinions during an electoral period, as long as it does not constitute direct campaigning in favor of a given candidate or electoral association/bloc.
b. Access Of Candidates To Mass Media
The draft law contains the current legal language regarding the right of registered candidates to have free airtime on public television and radio stations that have been founded (or co-founded) by state agencies, organizations, establishments and/or financed by government authorities (Russian Federation or Subject) in the amount of at least 15% of their annual budget in the year preceding the date of official publication of the decision to call the elections.
The distinction between private and public media is unique to Russia. Just as a driver using a road is subject to regulations regardless of his status, so are mass media outlets using the airwaves allocated to them by the State. In this respect, public and mass media outlets ought to be subject to the same rules and regulations. If a distinction must be made, there is one critical issue that is not addressed in the Draft Law with respect to public media: the impact of the founding partners.
The Draft Law stipulates that mass media outlets that were founded by the state agencies or institutions are subject to the same obligations imposed on mass media that receive 15% of support from the State. However, oftentimes the founding procedure was purely a formality that did contain any solid links between the initiator, on the one hand, and the State, on the other. For example, the Federal Law «On Joint Stock Companies» distinguishes between the notions of «founder» (the party participating in founding an organization) and «shareholder» (the party holding a stake). This distinction between «founder» and «shareholder» should be contained in the Draft Law. While acting as co-founders of television and radio companies along with other organizations, state agencies and institutions may have been holders of minimal stakes (amounting to less than 15% of the founding capital). Hence, one should primarily speak of the State's controlling stakes (unit shares) in mass media when considering the States role in the «founding» of a mass media organization.
By the date of the call for election, a «founder» could no longer be a shareholder of the given organization: state and municipal authorities and organizations are authorized to dispose of their stakes. Therefore, a television or radio organization (having no state or municipal shareholders) could be obligated to provide unpaid airtime, the grounds therefore being purely formal. This possibility should be excluded by eliminating the provision stipulating that free airtime be provided by mass media outlets «founded» by the State.
Clause 3 reads: «Equal conditions of accessing the mass media shall be guaranteed to registered candidates for election campaigning.» This principle is echoed in several other provisions: Clause 2 of the same Article reads: «The state and municipal TV and radio broadcasting organizations and editorial offices of state and municipal periodicals shall guarantee registered candidates equal terms and conditions for election campaigning, presentation of their election programs to voters.» These provisions may be problematic if there are a large number of candidates. Equal time means that the fringe party candidates will get as much airtime as the candidates that have a serious chance of winning. In other countries where equal time is granted to all candidates, the result often is that voters loose all interest in listening to the political spots because they have to listen to a lot from extreme candidates instead of hearing from the candidates in whom they are interested.
There are at least two ways to mitigate this problem. One is to state that candidates shall receive free airtime on a fair and non-discriminatory basis. This leaves open the possibility for election commissions to grant air time based on objective factors, such as the support of the candidate's party in the Duma, or the number of jurisdictions in which the candidate is registered (if candidates have to qualify to run in each jurisdiction).9 A second approach is to require that the broadcast stations publish the times at which the various candidates will be speaking in their weekly broadcast schedules.
While providing free airtime, the Draft Law should allow for reordering of candidates as required by necessity. For example, under the draft law, should a candidate refuse to campaign via television or fail to appear live on the air, there is a ban on the use of the given airtime for election campaigning purposes (Clause 15). Should candidate 2 or 3 (out of a hypothetical five running candidates) fail to show up and appear live on television or the radio, the Draft Law would require that «gaps» be indicated in the broadcast, because it does not allow for reordering of candidates. Given television industry specifications, a specialized agency such as VGTRK should be allowed some freedom of maneuver and be enabled to rearrange the airtimes of the candidates in the event of some candidates either failing or refusing to participate in a radio or television appearance.
As in the State Duma Election Law, the Draft Law obligates public television and radio companies to have one third of unpaid airtime allocated for joint discussions, round tables and other forms of collective election campaigning. The Draft Law also stipulates that this time should be used by eligible candidates on an equitable basis. Application of this particular rule raises a number of serious questions that could put in doubt the legality of the election campaign and compromise the safeguards for candidates' rights. The questions raised include:
1) Who is to determine the forms of collective campaigning), the procedures to be followed and the topics to be addressed;
2) What is the mechanism that assures equality of candidates' rights ?;
3) What should be done and who (state-run television and radio companies or the CEC RF) makes judgments, For example, should a scheduled debate that is attended by just one participant proceed or should such a candidate be refused the opportunity? How are these decisions to be made?
4) Also, the Draft Law fails to respond to another critical challenge emerging from the last 1996 presidential campaign: do the agents of a candidate have the right to participate in this kind of function given that the draft (Clauses 5 and 6) explicitly refers to a candidate?
Internationally, debates are recognized as an important part of the electoral process. Depending on the jurisdiction, the ratings for debates vary from 25% to 65% of the electorate watching the candidates on any one evening.10 In countries that have a large numbers of candidates, special rules are designed to allow for debates with all contenders and provide for various formats that acknowledge the strengths of the front-runners. For example, The Netherlands holds two debates, one with all contenders for a period of one hour and another one with only the top two contenders addressing specific issues for a period of two hours. Debates in the Netherlands are organized by a broadcasting association. In Germany, the electoral law does not require debates; broadcasters organize debates on their own and only allow parties with a parliamentary representation to take part. In 1990, when an «elephant round» of elections occurred after the reunification of the country, no debates occurred as there were simply too many candidates. Given the impact of debates on the electoral process, it is important to define what is required and in what format, either in the Draft Law or by clarification provided by the CEC RF.
c. Equitable News Coverage
Clause 24 states that «in TV and radio news programs reports concerning election campaigning events organized by candidates, registered candidates and their agents, electoral associations/blocs and initiative groups of voters shall be always presented in the form of separate items, as a rule in the beginning of such programs, and without any comments. Candidates shall not pay for such news items.... They shall not give preference to any candidate, registered candidate, particularly, as regards the time devoted to highlighting their election campaigning activities.»
Russia is one of the few countries that seeks, through its electoral laws, to regulate news coverage of candidates during the election period. The application of such laws is particularly important in news coverage of incumbents. A broadcaster may cover events of a current office holder as if they were news, when in fact they are campaign events. News coverage of press conferences and public statements made by a candidate who is also a public official (other than conferences and statements that directly relate to his or her official duties) should be subject to equal time rules.
As for defamation in news coverage of the election campaign, in most countries, fair coverage is guaranteed through standard regulations that affect defamation in civil law. The onus for preventing defamation should rest with the candidate, not the broadcaster. Defamation or an offense against the honor of a candidate should be limited to broadcasts/publications that include a materially false statement, where the speaker knows or reasonably should know that the statement is false and is likely to injure the target's reputation. The European Court on Human Rights has made clear that speakers may not be punished for publishing opinions about public officials, even if offensive, so long as the opinions are not based on a materially false statement or fact.
A major source of bias in broadcast coverage of candidates is the manipulation of news coverage. The potential for bias is particularly strong where a candidate is also a public official. A broadcaster may cover events of a current office holder as if they were news, when in fact they are campaign events; however, by covering the events as news, the requirement of equitable news coverage is not triggered. Thus, it may be advisable to include a provision that limits news coverage of office holders, except for events that are counted within the equal time requirement, or have clear and pressing news value.11
Under the Draft Law, no television or radio company shall show any preference for one or another candidate, «inclusive of» the length of coverage of their campaign efforts. This means that a television or radio company shall either allot equal time slots to all candidates or refrain from mentioning any electoral process participant in the absence of the so-called newsworthy events relating to the activities pursued by the candidates. Given this circumstance, the phrase «inclusive of» would be best be replaced by «in terms of» in the Draft Law.
Moreover, according to the Draft Law, television and radio news coverage of election campaign events conducted by candidates, their agents and electoral associations/blocs shall be presented in an unedited block early in the relevant news program. We suggest that the legislators considering the Draft Law consider provisions for the following:
1) To enable commentators to make editorial judgments in programs that provide electoral coverage.
2) A clear definition of the term «television and radio news program» in order to effectively handle assorted legal issues between pure news and analytical programs.
Clause 25 reads «These recordings [containing election campaign material] shall be kept by the given TV and radio broadcasting organization for 12 months from the day on which the corresponding programs were aired.» This requirement may impose an unnecessarily onerous burden on broadcast media. Tapes are expensive and typically are reused. It should be sufficient to require that they such organizations keep such material for the period of time in which complaints alleging election-related broadcast violations must be filed. Of course, once a complaint is lodged, the tapes of the program in question must be preserved.
Clause 1 indicates that candidates shall not call «for the violent seizure of power, violent change of the constitutional system and breaking of the integrity of the Russian Federation, warmongering propaganda. Propaganda exciting social, racial, national, religious hatred or enmity, misuse of the freedom of mass information in other forms banned by the laws of the Russian Federation shall be prohibited.» Article 5 provides the penalty for a breach of this provision: «If a registered candidate breaches Clause 1 of this Article, the Central Election Commission ... shall ... apply to the Supreme Court ... for withdrawal of the candidate's registration.»
In light of the severity of the penalty, Clause 1 is excessively vague. Statements that excite hatred or enmity are prohibited by the criminal law, and the criminal law should suffice, at least where the incitement to hatred does not also incite violence. Clearly, the prohibition as written in Clause 1 is a double-edged sword. While it serves the laudable goal of excising hate speech from the campaign, it could be misapplied by government prosecutors against candidates who make offensive statements that do not go so far as to incite hatred.
The prohibition against the «misuse of the freedom of mass information in other forms banned by the laws of the Russian Federation» is even broader and thus more problematic. This phrase may apply to an array of unspecified violations prohibited by the criminal law or even by civil law, such as defamation. Again, criminal penalties should suffice. Accordingly, we respectfully suggest that the last sentence of the Clause quoted above (beginning with «propaganda») should be deleted. An additional sentence could be added to provide a prohibition against incitements to violence.
Clause 7 states that «law enforcement and other bodies shall take measures to put an end to unlawful propaganda activities, prevent production of and seize counterfeit and unlawful printed, audio-visual and other propaganda materials....»
This provision should be revised to make clear that police may not seize any campaign materials, other than materials that are unlawfully posted in public places, without a warrant issued by an appropriate authority. The authority empowered to issue such a warrant should be specified in the law (perhaps a prosecutor or magistrate). Moreover, the legality of any such seizure should be subject to expedited review, either by the CEC RF or by the Supreme Court. Furthermore, law enforcement officials should not be authorized to stop campaign speeches unless they pose an imminent likelihood of promoting violence.
3. Campaign Finance
We note with satisfaction that several recommendations made by IFES after the 1996 presidential elections have been reflected in the Draft Law. These include:
establishment of a period within which the Central Election Commission of the Russian Federation must allocate money to the electoral fund of a registered candidate;
obligation of candidates to submit interim financial reports;
prohibition of specific means by which candidates holding government office may take advantage of their official position;
prohibition of in-kind donations to candidates;
In the area of regulation and disclosure of financed political activity, IFES has long advocated that limitations on contributions to candidates and electoral associations/blocs, and limitations on overall campaign expenditures, should not be set unreasonably low. 12 However well intended, severe limitations upon political giving and spending tend to stifle political action and, as evidenced from prior elections, 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/blocs should be strongly encouraged and enforced with graded penalties.
In our opinion, the existing limitations on the amount of donations and expenditures of a candidate are unreasonably low and should be increased to a reasonable sum. A candidate may spend up to 500,000 minimum wages on the election campaign, which presently comes to 41,745,000 rubles (approximately US$1.6 million). This is even less than the sum established in the 1996 presidential elections. Such low limits may facilitate violations of the law by candidates who seek to sway an electorate of over 100 million people in a period of over three months. The cost of mounting a national election, which includes the purchase of TV airtime, are substantially higher when looking at the cost per voter in countries like France, Brazil, or Canada, to name a few.
The election law should also distinguish between prohibitions on campaign-related activities and other, politically neutral activities, which should not be prohibited. For example, the development of voter education or rights awareness activities by charitable organizations or the provision of nonpartisan assistance to the election apparatus should clearly be made a legal activity.
While the definition of an anonymous donation (Clause 4, 1.) in fundamentally accurate, a distinction should be drawn between donations whose source cannot be traced (i.e., anonymous donations) and donations, which have been transferred without indicating all of the necessary data by which the source can be identified. This comment is consistent with the guiding principle established herein with regard to IFES intent to increase of clarity of the obligations of participants in the electoral process.
Clause 6 is somewhat rigid. According to this clause, all kinds of paid work and all paid services directly or indirectly related to the elections may be performed/rendered only with the written consent of candidates or their authorized agents, with the payment to be made only from the corresponding electoral fund. The same clause prohibits legal entities, their branches, representative offices, and other divisions from performing work, rendering services and selling goods, directly or indirectly related to the elections, free of charge or at unreasonably low rates. This prohibition should not apply to election-related work that is politically neutral, such as voter education programs and nonpartisan efforts to support the work of election commissions or efforts to support the institutional development of political parties on the part of like-minded foreign parties.
The material is provided by the International Foundation for Election Systems (IFES)
1 Draft Law, Article 21(9)
2 Draft Law, Article 28(1)
3 Draft Law, Article 28(3)
4 Draft Law, Articles 30(3), 36(5)
5 For more on this issue, see Carol Staley, Paper Ballot Security and Accountability. IFES/Russia, 1997.
6 Administration and Cost of Elections Project, UN/IFES/IDEA, 1998.
7 For examples of this, see Professor Michael Pinto Duschinsky, Mass Media and Elections, IFES/Russia, 1998.
8 See Clause 9 of the Comments of the Central Election Commission of the Russian Federation (CEC RF) adopted by Ruling of the CEC RF No. 8/52-3 of August 13, 1999. Available in English at www.ifes.ru
9 For specific formulas on the allocation of free airtime, see ACE Project, at www.aceproject.org or see Professor Michael Pinto Duschinsky, Ibid.
10 See Royal Commission on Electoral Reform, Canada, 1991 - Mass Media and Debates.
11 On Incumbency, see Robert A. Dahl, Advantages for Participation in Elections for those who are incumbents: Political and Legislative Limitations. IFES/Russia, 1996.
12 See comments of Robert A. Dahl, Control over financing of the election campaign and candidates in the elections of the Russian Federation (IFES/Russia, 1996); Dr. Michael Pinto Duschinsky, Aspects of Financing of Political Campaigns, IFES/Russia, 1997).