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Some Controversial Aspects of the Legal Regulation of Election Campaigning under the Federal Law of the Russian Federation «On the Election of the President of the Russian Federation» I.Ivanov.
Undoubtedly, the national electoral legislation has made considerable headway in recent years. A respectable distance has been covered from the legal ad-libbing, typical of the '93 fall, to the establishment of a clearly structured legislative system.
All of the above being true there is , however, no such thing as perfection. A number of rather significant problems in the legal regulation of the electoral process remain still to be addressed. This applies to the electoral campaign, a key phase of any election.
This collection draws the readers' attention to some, I believe, serious inconsistencies that arise from legislative provisions and the evolving practice of applying the law.
I do not, God forbid, advocate ignoring the statutes because they are, often obviously, imperfect. The law is the law. However, improving the law is within our capabilities and interests .
«Premature» Election Campaigning
A fundamentally important new provision of the Federal Law «On the Election of the President of the Russian Federation» is the rule prohibiting any electoral campaigning from the day when the decision to schedule (hold) the election is officially published (gazetted) until the date when any candidate is registered as such (Section 2, Article 45).
The legislature has unequivocally defined something currently missing from the legislation on the election of State Duma deputies, since neither the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum», nor the Federal Law «On Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» contain such a prohibition. Indeed, while the law on the election of deputies provides that election campaigning by a candidate (list) prior to their registration (Section 2, Article 91) may serve as a valid reason for refusing such registration, but does not directly prohibit activities fitting the definition of «electoral campaigning», the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum» does not mention such a reason for refusing registration at all (Section 9, Article 32). The above gives rise to a number of substantial issues.
1. The very notion of «election campaigning until the candidates' registration» is devoid of legal meaning, since all the rules and conditions of election campaigning contemplated by the law only apply to candidates who are already registered. Any activity of citizens or political associations that may be similar to election campaigning does not amount to premature electoral campaigning until the candidate is registered. In fact, it is not electoral campaigning at all within the meaning of the electoral legislation.
It is, instead, informing, advertising, explication etc. by politicians and public associations, which is not regulated by the electoral legislation.
Violation of a legislative rule that does not yet apply is impossible. It is impossible to violate any rules and conditions of electoral campaigning until the moment (the candidate's registration date) that such rules and conditions come into legal effect.
Similarly, however strong the intent, there is no way of disturbing the neighborhood at night until night actually falls. One may commit any number of actions that otherwise have every feature of such a misdemeanor (yelling, turning the stereo all the way up, drilling concrete walls, etc.), but these actions would only qualify as an offence between 11 p.m. to 6 a.m., i.e., while the special legal regime is applicable.
Moreover, in our view, the authors of this new provision are held hostage to their misconception as to the legal nature of electoral campaigning and its place in the system of electoral legislation rules.
What they miss, is that the effect of certain legal regulations may be limited in time. Regulations of such limited duration also include the rules and conditions of electoral campaigning, as contemplated by law, since it starts «as of the candidate's registration date and ends at midnight local time, 24 hours before the voting day».
Meanwhile, banning any electoral campaigning prior to the registration date is completely unwarranted, if we adopt the only correct view of the electoral campaign as a special legal regime applicable to all participants in the electoral process (including the candidates, electoral associations and blocs, as well as media), whose objective is to grant candidates a certain state-guaranteed minimum amount of information that allows them to reach the voters, to highlight the advantages of their political programs, etc.
Clearly, all participants come to the campaign starting line with different political «capital», with different financial, organizational, and other resources. Therefore it makes no sense to discuss equal opportunities of influencing voters. The state is only obliged to level the field for the electoral marathon, somehow narrowing the gap between the objectively pre-determined capabilities of clear leaders and obvious outsiders.
The above likewise applies to the conditions of election campaigning. Within a strictly limited period of time (from the registration date to the pre-ballot day) legislative guarantees and restrictions should be established with regard to media access by candidates and electoral associations, procedures of paying for campaign materials, etc.
It is no coincidence that, even though the legislature describes the electoral campaign procedures in the Law itself, reference is only made to registered candidates.
It is the actual registration that serves as the legal fact vesting the potential contenders for the Russian Presidency with campaign-related rights and duties.
Likewise, the mass media are vested with corresponding rights and obligations only with regard to registered candidates. Therefore, the entire legal relationship between the media and the election participants regarding the election campaign only arises once the candidates have been registered.
2. The electoral legislation defines the notion of «election campaigning» in the broadest possible manner as any activity by citizens, public association, parties, etc., that encourages or aims to encourage voters to participate in the election and to vote for or against any candidate.
Therefore, the prohibition binding public associations, mainly political parties, to refrain from any informational or propaganda activity or any political campaigning may be viewed as an attempt to unlawfully restrict constitutional rights and freedoms.
Under Article 30 of the Russian Constitution, everybody has the right to association.
Freedom of public association is guaranteed.
Section 12.1 of the Federal Law «On Public Associations» lists participation in society's political life by influencing the development of individuals' political will among the principal objectives of any public political association.
Naturally, political propaganda serves as the main tool for attaining that objective.
The Federal Law «On Public Associations» also establishes that «public associations are free to determine ... the forms and methods of their activities» (Article 15) and that any public association is entitled to «freely disseminate information on its activities», to «hold meetings, rallies, demonstrations, marches and picketing» and to «propose any initiatives on various points of public life» (Article 27).
According to Article 55 of the Constitution, the rights and freedoms of human beings and citizens may be restricted by Federal Laws only to the extent necessary to protect the fundamentals of the constitutional system, the morality, health, rights and lawful interests of other persons or to assure state security.
Supposing that such Federal Laws with regard to public association activities include electoral laws, one ought to bear in mind that the restriction on the free pursuit of any political propaganda is strictly limited in time (for the effective period of the special legal regime, when such political propaganda qualifies as election campaigning).
Election Campaign Participants
The problem of election campaigning by individuals and public associations during a presidential race is closely related to the previous issue.
Under Article 8 of the new Federal Law, the state guarantees the freedom of political campaigning to the citizens of the Russian Federation and public political associations.
The above participants in the electoral process may carry out an election campaign in any form permitted by law and through lawful means. However, two essential points should be kept in mind.
1. Under Article 2 of the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum», which prevails over all other election laws, campaigning is understood as an activity of citizens of the Russian Federation and political associations, including those that have no political agenda.
Therefore, in this case, the Law in question contradicts an operational Federal Law.
2. Articles 47-52 of the Federal Law «On the Election of the President of the Russian Federation» (mainly, the Articles governing electoral campaigning on TV and radio), establish special guarantees of media access for registered candidates and subject them to special conditions regarding other forms of campaigning.
Meanwhile, the Law does not expressly prohibit election campaigning through the media by individuals and public associations.
During the 1999 State Duma campaign, it was this very inconsistency that led the CEC of the Russian Federation to conclude, I believe without proper justification, that no participants in the electoral process (other than registered candidates and electoral associations that have registered their lists) «may conduct an electoral campaign through the mass media» (Section 9, Explanations by the CEC of RF, as adopted by Resolution No. 8/52-Z of the CEC of RF, dated August 13, 1999).
This problem should be given special attention while applying the law, both in its current and amended form.
Government TV and Radio Companies: Status and Procedures
In essence, the Federal Law retains the language of previous electoral laws regarding the right of registered candidates to receive free air-time from the channels of government companies founded (co-founded) by government authorities, organizations or institutions and/or funded with outlays made by any authorities of the Russian Federation or Subjects of the Russian Federation to the extent of at least 15% of their budgets during the year preceding the official publication date of the decision scheduling the elections.
Even though the legislature, in fact, replicated a similar norm from the previous electoral law, they unfortunately failed to address a number of important points that, in my opinion, significantly affect normal campaigning via TV and radio.
The first problem involves the founding (co-founding) role of government authorities and TV/Radio company organizations.
In fact, such founding (co-founding) status is often purely formal, establishing no serious or solid relationship between the TV or radio company and the state. I direct your attention to the Federal Law of the Russian Federation «On Joint Stock Companies» which makes a distinction between the notions of «founder» (a person participating in the establishment of any organization) and «shareholder» (a person holding a parcel of shares). Obviously, by the time an election is scheduled, a founder may no longer be a shareholder of the organization it has founded, since national and municipal authorities and organizations are fully entitled to divest any shares they hold. Therefore, the situation may well arise where a TV or radio company that counts no government or municipal authority or organization among its shareholders may be obliged to provide free air-time for the sole reason of this formality. I believe that even the distant possibility of such a situation should be eliminated.
Next, government authorities co-founding any TV or radio company with other entities may end up holding very minor interests, such as 0.5%, 5%, 10%, etc., which makes the relationship between such TV and radio companies and the state quite tenuous. Therefore, the law should refer to a controlling (blocking) interest (share) of the State in any TV or radio company.
The second problem involves the trigger condition of funding a TV and radio company from appropriations made by federal government authorities or by government authorities of any Subject of the Russian federation. Subjecting such funding to a threshold which is equivalent to 15% of the company's budget during the year preceding the date when the elections are called constitutes a step forward, as the laws that regulated the Federal elections of 1995 and 1996 contained a controversial reference to «full or partial funding».
Indeed, the Russian legislation fails to provide a clear definition of funding by government authorities. As a result, such «funding» may be construed as benefits awarded to a TV/radio company; government subsidies; government contracts (by federal authorities, Subjects of the Russian Federation or municipal authorities); or funding for special programming on TV and radio (legal, environmental, cultural, educational, etc).
Different conceptions of «funding» are seen even in the new Federal Laws themselves (Section 5, Article 40 of the Federal Law of the Russian Federation «On Basic Guarantees...»; Section 11, Article 56, of Federal Law «On Election of Deputies of the State Duma ...» ; and Section 11, Article 49 of the Federal Law «On the Election of the President of the Russian Federation»), which establish that any expenses incurred by TV and radio companies in providing free air-time to participants in the electoral process should be covered from their current funding budgets.
In this regard, either some uniform terminology should be introduced at a later stage (such as «current budgetary funding») or, realizing that it is not really possible to reimburse GTRKs6 expenses in this way, we should delegate the responsibility of compensation to the CEC of the Russian Federation, drawing on the funds allocated by the state to holding the elections.
The new Federal Law, similarly to the current Federal Law of the Russian Federation «On Election of Deputies...», establishes that free air-time should be allocated in the hours when TV and radio programs of government companies have the largest audience, during so-called `prime time'. However, neither the Federal Law of the Russian Federation «On Basic Guarantees...», nor the Federal Law «On Election of Deputies of the State Duma... « , nor the Law in question contain any clarification as to who is to determine such a period and how, although in the absence of instructions by the CEC of the Russian Federation such vagueness threatens to strip this rule of the effect it would otherwise have. In the future it would be advisable to make the respective electoral commissions determine the above period either on the basis of a special opinion poll or independently by reference to the advertising tariffs submitted by the GTRK: as a rule, they peak in prime time.
Regrettably, the Federal Law «On the Election of the President...» is still ridden with substantial gaps in establishing the arrangements for provision of free and paid air-time. These legal lacunae have already resulted in numerous conflicts and disputes during the State Duma elections.
Thus, the new Law (Sections 8 and 9, Article 49) stipulates that, within one week after the registration of candidates (lists) has been completed, a drawing of lots should be held in order to distribute free air-time between the registered candidates who apply to participate in such drawing of lots. Lamentably, the Law determines no due date for filing such applications, nor any authority or organization with whom the said application should be lodged. In addition, it is absolutely unclear with regard to the candidate's rights and guarantees as to how one could justify a refusal to provide free air-time by reason of a late application that may nevertheless be filed, e.g., 36 or more days prior to the election date (i.e., before the period when such free air-time should in fact be provided).
I am convinced the lawmakers themselves should immediately address this issue. The drawing of lots determines the date and time of airing any election campaign materials. The results of such lot-drawing are documented by an appropriate statement and the air-time schedule established as the result of the lot-drawing is published in appropriate government-affiliated periodicals by the electoral commission supervising the procedure.
Meanwhile, in the case that a candidate refuses to campaign on TV or fails to attend a live show, the law prohibits any use of such time for campaign purposes (Section 15, Article 49). If, out of the established list of 5 or 6 candidates, the second, third, fourth, or fifth fail to attend, some «holes» ought to appear in the campaign time slot as the law prohibits reshuffling the candidates.
Given the characteristics of the TV production process, GTRKs should be given a relative degree of freedom, allowing them to change the airing time slots of attending candidates in case some fail or decline to attend.
TV Debates
Similar to the existing legislation on election of deputies to the State Duma, the new Law contains a rule that is intended to influence the substance of election campaigning, rather than its form, since it obliges government TV and radio companies to reserve one half (or, in a run-off vote, two thirds) of the total free air-time allocated to candidates for discussions, round tables and other collective forms of election campaigning. The election campaign participants should also use such time equally. Implementation of this rule raises a number of serious points which, unless resolved by regulation, will threaten the legality of the electoral campaign and the guarantee of equal rights to candidates:
1. who will determine the format of collective electoral campaigning (whether it will be a discussion, debate or round table) and the topic of such campaigning, and how;
2. the mechanism for assuring equal treatment of candidates during a debate is undefined and the law is silent on the rights of moderators in the case that the candidates fail to adhere to the established procedure of such collective events or to observe Russian legislation; and
3. what will happen to any air-time that, for some reason, is not «taken up» by election campaign participants? (For instance, as was the case during the 1995 elections, certain electoral associations or blocs may refuse to participate in collective campaign events.) The Federal Law addresses only one aspect of this problem: refusal by a candidate to participate in joint campaign events does not result in any increase in the air-time provided to them personally by the drawing of lots (Section 7, Article 49).
The above points and other issues arising from the aforesaid rule call for immediate resolution at the legislative level. Otherwise, the GTRK management would face serious difficulties while arranging electoral campaign work.
TV and Radio Newscasts
Under the new Federal Law, no radio or TV company may give any preference in its newscasts to any candidate and/or registered candidate, including any preference in terms of time allocated to their campaign coverage. This means that each TV or radio company should either provide equal time to each participant in its newscasts or should refrain from referring to any party in the electoral process if the company has no newsworthy reason to mention some of the candidates. Therefore it would be preferable, in my opinion, to exclude the word «including» from the above rule.
Moreover, TV and radio newscasts should normally carry information on campaign events held by any candidates (registered candidates) and their agents, electoral associations (blocs) as a separate section at the beginning of such news bulletins and without comment.
The legislator has to address two problems, clearly laying down the possible alternatives.
1. First and foremost, given the present stance of the Russian CEC, which evolved during the State Duma election, it would be necessary to allow expert comments on election events in the same newscast. In addition, journalists themselves are not counted as persons whom the law prohibits from election campaigning, while the Mass Media Law entitles journalists to make comments and give their views. Naturally, the exercise of such a right could be viewed as campaign propaganda. However, a prohibition on journalists pursuing their trade appears to be excessive and unwarranted.
The same applies to journalists hosting their own shows.
2. To establish clearer guidelines for applying the law, the legislator should define the term «TV and radio newscast».
Liability
Both the new Law and the entire electoral legislation currently in force suffer from a very serious flaw: they hold the editorial office (editor-in-chief) liable under the Mass Media Law for any violations a candidate may commit while using his or her guaranteed airtime.
Absurd indeed is a situation where a candidate independently determines the format, nature and content of his or her campaign materials, which the media editors are obliged to disseminate, while the liability for potential violations rests with the very same editors.
I am convinced that either the Mass Media Law (Article 57) or the Federal Law «On the Elections of the President of the Russian Federation» should be amended to indicate that the liability for any violations a candidate may commit while availing himself or herself of free or paid air-time should rest with the candidate instead of the editors.
Igor Ivanov,
Member of the Research Council under the
Central Election Commission of the
Russian Federation
6 A Russian acronym for a State-Owned TV and Radio Broadcasting Company.
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