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M. Kudryavtsev. Special Features of the New Law on the Election of Deputies to the State Duma and Election Campaigning in the Mass Media
Hierarchy of the Sources of Electoral Law
The forthcoming campaign for the elections to the State Duma is provoking a heightened interest in the electoral legislation, particularly in the amendments and additions that have been introduced. In this connection, the law which directly regulates the administration of this election campaign, namely, the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» (1) (hereafter «the Federal Law «On the Election of Deputies...») is of particular interest.
This law is the result of the long period of development of electoral legislation in the Russian Federation. It reflects the experience gained from two federal election campaigns (the 1995 election of deputies to the State Duma and the 1996 presidential elections) as well as the rules formulated in the course of practical application of the norms of the electoral legislation and formalized in the legal acts of the Central Election Commission.
In the past, numerous regional and local elections often revealed drawbacks in the electoral legislation in force at that time, which also contributed to the further improvement of this legislation.
A particularly important role in the evolution of electoral legislation has been played by a new fundamental law - the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum» (2) (hereafter «the Federal Law «On Basic Guarantees...»). This law has a supreme legal force in respect of not only the federal electoral legislation but also the entire Russian legislation as a whole. Owing to this fact it was possible to test the provisions of this law in the course of regional and municipal elections without waiting for the federal elections. Practical application of the law showed the need to modify some of its provisions and this was done by the Federal Law «On Introducing Amendments and Additions in the Federal Law 'On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum'» (3). In the final analysis, it is the amendments made in the Federal Law «On Basic Guarantees...» that predetermined the adoption of the new Federal Law «On the Election of Deputies...» which adapts the provisions of the updated version of the Federal Law «On Basic Guarantees... to parliamentary elections.
Regulation of the activities of the mass media during an election campaign is one of the so-called «problem spheres» of the present-day Russian electoral legislation. It must be noted that until recently the role of the mass media in election campaigns was, as a rule, underestimated and this led to the absence of any legislative norms regulating their activity.
However, the practical experience gained from past election campaigns has demonstrated the tremendous and ever-growing role played by the mass media in an electoral process. On the one hand, the mass media is a powerful tool for shaping the voters' will and, on the other, it is a necessary means for providing information about the election campaign. All this has necessitated a gradual expansion of the norms regulating the activity of the mass media during elections and resulted in a more specific and detailed formulation of the corresponding provisions of the electoral legislation.
Free Choice of Election Campaigning Forms
The fundamental principle of electoral law is the freedom to choose the forms and methods of campaigning. Election campaigning may be conducted not only through the mass media: it may also be carried out by organizing mass events, issuing and distributing printed, audio-visual and other materials and in other forms which are not prohibited by law. Election campaigning through the mass media is conducted in the form of debates, roundtables, press conferences, interviews, speeches, political advertising, broadcasting of television features and video films about registered candidates, electoral associations and electoral blocs and in other forms which are not prohibited by law. For practical purposes definitions of these forms of election campaigning through the mass media are borrowed from the instructions of the Central Election Commission (see the table). Although these instructions are actually no longer valid, the definitions which they contain have been adopted by jurists and are still used for practical purposes.
In full compliance with the Federal Law «On Basic Guarantees...» the Federal Law «On the Election of Deputies...» prohibits some categories of natural persons and organizations from participation in election campaigning and in highlighting the election campaign in the mass media.
«Public» and «Private» Mass Media
In accordance with the Federal Law «On Basic Guarantees...» the Federal Law «On the Election of Deputies...» divides electronic and print media into two groups which can be called «public» (»regulated mass media» in A.Postnikov's article - Ed.) and «private.» The definition of «public» electronic and print media which bear the obligation to provide information about the election campaign is based on the composition of founders ( those media or their editorial offices which are founded (co-founded) by state bodies, organizations or institutions) and their financing (electronic media and the editorial offices of periodicals which have been financed by the said organizations to not less than 15 percent of their budget in the year preceding official publication of the decision to call the elections). Print and electronic media are deemed to be «public» if they meet at least one of these criteria.
The Federal Law «On the Election of Deputies...» establishes a special status for municipal «public» print and electronic media - the print and electronic media that are founded (co-founded) by bodies of local self-government or which have been financed by these bodies to not less than 15 percent of their budget in the year preceding official publication of the decision to call the elections. Such print and electronic media may refuse to accept any election propaganda materials provided they completely abstain from any form of propaganda activities. A similar rule is established by the law for specialized TV and radio companies and publications (cultural, educational, children's, technical, scientific, etc.) provided they completely abstain from highlighting the election campaign in any form whatsoever. The editorial offices of periodicals founded by the bodies of legislative (representative), executive and judicial power and by bodies of local self-government with the sole purpose of publishing their official materials and reports, normative and other acts must not publish election propaganda materials or editorial articles highlighting the election campaign.
The major function of «public» electronic and print media is provision of free air time and print space to the participants in election campaigning (such air time and print space are paid from the current financing of these media). The Federal Law «On the Election of Deputies...» lays down rigid requirements as to the amount of such air time (print space) available for campaigning purposes.
Election campaigning through «public» electronic media commences 30 days prior to voting day, and 40 days prior to voting day through «public» print media. In either case, the election campaigning period expires at 00.00 hours on the day preceding voting day.
Unlike «public» electronic and print media «private» media, may start election campaigning upon registration of a candidate or a list of candidates (without waiting for the end of the registration period), with the corresponding propaganda materials to be broadcast or printed for a charge, but always on a contractual basis. The contracts for the provision of paid air time and print space must meet the requirements laid down by the Federal Law «On the Election of Deputies...»: the text of the contract must include a number of conditions prescribed by the law; documents indicated in the law must be executed after fulfillment of the contract; air time and print space must be paid in accordance with the procedure established by the law, etc. «Private» electronic and print media must publish their rates not later than the twentieth day after publication of the decision to call the elections; they must also submit the corresponding information to appropriate election commissions along with a notification of their readiness to provide air time or print space to participants in election campaigning. The rates and terms of payment must be the same for all registered candidates, electoral associations and electoral blocs. Failure to observe these conditions will make it impossible subsequently to provide air time and print space for election campaigning.
Under the Federal Law «On the Election of Deputies...», «public» electronic and print media which provide free air time and print space to participants in election campaigning may also conclude contracts for the provision of paid air time and print space for campaigning purposes. To do so, these organizations and media must reserve additional air time and additional print space in the amounts established in the Federal Law «On the Election of Deputies...» In this case, too, the rates to be charged for the use of air time and print space must be published beforehand. Each participant in election campaigning has the right only to his share of additional air time or print space provided on a paid basis.
Special Requirements to Campaigning for Federal Lists
The Federal Law «On the Election of Deputies...» differentiates between the election campaigning of electoral associations (blocs) which registered federal lists of candidates and the election campaigning of regional groups and candidates running in single-mandate electoral districts. Election campaigning at the federal level is conducted through the national electronic media and publications, at the regional level, through the corresponding divisions of the national electronic media and through regional electronic and print media. The lists of such electronic and print media are made up and published by election commissions on the recommendation of the federal and territorial bodies of executive power which formulate and implement the state policy vis-a-vis the mass media, not later than the tenth day after official publication of the decision to call the elections. The difference between the two levels of election campaigning must not be obscured.
Restrictions on Election Campaigning
The Federal Law «On the Election of Deputies...» establishes that one-third of free air time provided to the participants in election campaigning must be used for collective events. The refusal of a participant in election campaigning to take part in such events will not increase the total amount of free air time to which the participant is entitled.
The Federal Law «On the Election of Deputies...» establishes the following restrictions:
- transmission of propaganda materials must not be interrupted;
- election propaganda materials must not be transmitted on the channels of the national electronic media in the middle of other programs;
- in TV and radio news programs reports concerning election events must always be presented in the form of separate blocks, at the beginning of such programs, without any comments and without any preference being given to any campaign participant. Such news blocks are not paid for by participants in the campaigning activities;
- election propaganda materials must be published without any editorial comment, without headings and illustrations.
Special requirements are established for public opinion polls. The Federal Law «On the Election of Deputies...» prohibits publication of the results of public opinion polls and forecasts in respect of the election results or other election-related studies within three days prior to voting day and on voting day. It also establishes the mandatory data that must be indicated when the results of opinion polls are published. For the first time the law states that the organizations which conduct election-related public opinion polls for publication in the mass media and the organizations which publish the results of such polls and forecasts of election results must furnish copies of these publications to the appropriate election commission for the formation of a data bank to be available to candidates, electoral associations, electoral blocs and other persons indicated in the law, including members of the press. This norm allows the attitudes of the public to be determined more objectively by comparing the results of various opinion polls and sociological studies. It also makes it possible to assess the professional qualities of the researchers and the technologies which they use.
In conclusion it must be noted that the new Federal Law «On the Election of Deputies...» considerably tightens the requirements for election campaigning through electronic and print media. It equalizes the possibilities of candidates, electoral associations and electoral blocs for campaigning through «public» print and electronic media and ensures the minimum conditions guaranteeing that a voter's will is shaped on the basis of objective information. At the same time, this law restricts the «freedom of maneuver» of «private» electronic and print media and thus substantially reduces the possibility of abuses. Hopefully, the new rules of election campaigning will contribute to guaranteeing honest, genuinely democratic elections and will put up formidable obstacles in the way of «dirty» electoral strategies.
However, the real effectiveness of the various norms of the new Federal Law will be revealed only after they are tested in the course of the current election campaign: it is only through the practical application of these norms that their merits and demerits can be established and their effectiveness judged.
Notes:
1. Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» No. 121-FZ of July 24, 1999.
2. Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum» No. 124-FZ of September 19, 1997.
3. Federal Law «On Introducing Amendments and Additions in the Federal Law 'On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum'» No. 55-FZ of March 30, 1999
M. Kudryavtsev
Moscow State University
Table 1
Print and Electronic Media Through which Election Campaigning Is Conducted
PRINT AND ELECTRONIC MEDIA THROUGH WHICH ELECTION CAMPAIGNING IS CONDUCTED
|
PUBLIC
|
PRIVATE
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Criteria for definition:
a) Composition of
founders;
b) financing
|
Print media founded
by candidates, electoral
associations, electoral blocs
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All other print media
|
|
|
Public political print media
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Private political print media
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Municipal public print and electronic media - possibility completely to refuse to carry propaganda materials
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Obliged to ensure equal access
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Not obliged to ensure equal access
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Official publications are not allowed to carry propaganda materials and highlight election campaign
|
|
SPECIALIZED PRINT AND ELECTRONIC MEDIA
(cultural, educational, children's, scientific, etc.) - these media may refuse to publish any election propaganda materials provided they completely abstain from highlighting the election campaign in any form whatsoever
|
Table 2
Legislative Regulation of Contracts for Provision of Paid Air Time and Print Space
Table 3
Practical Definitions of Some Forms of Election Campaigning in the Mass Media
Form of campaigning
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Practical definition
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Speech
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personal address (monologue) of a candidate, a representative of an electoral association, electoral bloc or an initiative group of voters to voters presenting an election program, if it is made outside the other kinds of election campaigning;
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Interview
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answers of candidates, representatives of electoral associations and other participants in election campaigning to questions of journalists at a personal meeting;
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Press conference
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presentation by a candidate, a representative of an electoral association, electoral bloc or an initiative group of voters of their election programs to members of the press, including answers to questions asked by members of the press;
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Election debates
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public exchange of opinions between two or more candidates, representatives of electoral associations, electoral blocs or initiative groups of voters over a wide range of topical public problems which are dealt with in the corresponding programs;
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«Hot line»
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answers of candidates, representatives of electoral associations, electoral blocs or initiative groups of voters to questions asked by televiewers or listeners during live broadcasts;
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«Roundtable»
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exchange of opinions, questions and answers between candidates, representatives of electoral associations, electoral blocs or initiative groups of voters and members of the press, televiewers, listeners or readers within the framework of campaigning events;
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«Political advertising»
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dissemination through the mass media of information about candidates, electoral associations and electoral blocs by participants in the electoral process with the use of ways and means which distinguish advertising materials from other forms and genres of information (predominantly emotional, catchy, terse, repetitive) to shape public opinion in support of or against various candidates, electoral associations and electoral blocs.
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Table 4
Periods of Election Campaigning in the Elections to the State Duma of the Federal Assembly of the Russian Federation
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