Regulatory Procedures From A Western Perspective
By
Linda Edgeworth Election Specialist
April 1996
For
The Central Election Commission Of the Russian Federation
Introduction
As election officials around the world have long recognized, it is rare thai all issues and questions that are likely to arise during the preparation and conduct of an election are satisfactorily answered within the law itself. One of the greatest challenges facing election administrators is to try to anticipate where potential misunderstandings and controversies are likely to occur and to try to prepare for them in advance.
One of the most valuable tools at the disposal of an Election Commission is the authority to adopt regulations. Through the regulatory process officials are afforded the opportunity to develop answers to critical questions before they become subjects of confusion and controversy, to clarify provisions of the law which are vague or unclear, and to provide the procedural detail necessary to fulfill the mandates and intentions of laws they are responsible to uphold. Sometimes the efficiency, credibility and equality of an election can rest on the soundness and validity of the regulations winch have been developed to support its conduct.
Development of reasonable and well founded regulations is not an easy task even under the best of circumstances. Officials have many of the same burdens as lawmakers as they approach the drafting and adoption of regulations. They can also share some of the same pitfalls. It takes a great deal of analysis and strategic planning to ensure that the regulations intended to resolve unanswered questions left vacant by tne law, don't simply create more questions, or more bureaucratic requirements with no appreciable benefit. Like the laws they are intended to augment, regulations musi be clear and easily understood. They must also be enforceable. Regulations that cannot be uniformly and consistently applied are self defeating for administrators and for the citizens they serve.
Throughout meetings and conferences with Election Commissioners, representatives of the media, electoral associations and initiative groups, and non-governmental organizations, it is evident that regulatory issues related to the Presidential Elections are of paramount concern to everyone. There is little doubt that the election process is very complex. There are new and complicated questions at every turn. The Central Election Commission bears a heavy burden in bringing resolution to the many issues and questions that continue to be raised. And, it is clear that it is a responsibility they have taken very seriously as they have approached the task of adopting regulations to cover crucial aspects of the election process.
Through the course of various consultations and training sesssions with officials and election participants, and based on responses to informal surveys, interest has been expressed in learning more about the process of formulating regulations. IFES has been specifically asked for information about this important subject, and in particular to offer some explanation of regulatory procedures utilized in other political contexts. The overview provided here represents some of the basic principles guiding the regulatory process in the United States. More specifically, it draws on the experience of the author as an election administrator who was also responsible for the promulgation of all regulations related to the conduct of elections for the State of Alaska for many years. The fundamental principles guiding that state's regulatory process are consistent with U.S. federal law and share many common elements found in the legal systems of other western democratic countries such as Great Britain and Canada.
It is not the purpose of this brief overview to provide an assessment or analysis of the merits of any specific regulations which have been adopted for the upcoming elections. Nor is it suggested that the western approach to regulatory procedure described herein is necessarily suitable or immediately transferable within the context of the current system of law in the Russian Federation. Perhaps, however, some of the concepts and ideas have merit and will prove useful as officials and staff members explore new ways to approach the difficult task of formulating effective regulations. At the very least, it is hoped that the information provided here will contribute a new and useful perspective as Election Commissioners continue their work in developing the body of regulations necessary to the efficient and fair conduct of elections in the Russian Federation.
1. General Overview
The inability of laws to adequately guide day-to-day implementation (f their broad sweeping mandates is well understood by government officials whose burden it is to see that the laws are carried out in actual practice. Lawmakers and government officials have long understood that laws must be supported by regulations and instructions that provide the administrative and procedural detail that simply cannot be covered in laws. Laws usually provide the foundation of principle and policy to be adhered to in carrying out the functions of government, providing for social programs and ensuring civil order. Regulations, on the other hand, provide the procedural detail which helps administrators implement them in actual practice.
In western contexts an understanding of the crucial differences between laws and regulations has a significant influence on how agencies approach the task of drafting their regulations.
- Laws are ENACTED by the legislative body.
- Regulations are ADOPTED by agencies or bodies of the executive branch.
- The authority of a government agency or administrative body to adopt regulations is granted by legislative body usually within the context of an enacted law. The power to regulate can be thought of as a «legislative power» that is delegated by the lawmaking body to the administrative agency.
In the United States, Canada, Great Britain and elsewhere the process of drafting, adopting and disseminating administrative regulations is very formal. Commonly there is even a specific law governing delegation of regulatory authority as well as the formal process of adoption. Such a law is usually called something like an « Administrative Procedures Act,» and the resulting regulations become part of a permanent «administrative code. « In the United States, not only do agencies of federal government adopt regulations, each state also has formal procedures to be followed by state agencies who are authorized by state law to adopt regulations. ,
Regulations are generally codified or systematically catalogued like books in a library so that they can be easily found by anyone who wants to have access to them. They are «permanent» in that they remain in effect unless and until they are formally amended or repealed altogether. They have the force and affect of law, and cannot he changed or repealed without adherence to the same formal process under which they were adopted in the first place.
This «permanence» provides a stability of process which benefits administrators and citizens alike. The ability of officials to administer programs and ,;arry out the mandates prescribed in the law is greatly enhanced by the continuity provided by the formality and permanence an administrative code system. Administrators generally agree that continuity and institutional memory are invaluable in improving the delivery of programs which are efficient, equitable, transparent and accountable. With a body of administrative code on which to draw, administrators do not have to continually reinvent the wheel. Rather, they can continue to build on a solid foundation already established.
Citizens also benefit from the continuity provided by this type of regulatory process. First, the benefit from timely access to the full body of regulations tha; apply to the particular government program, service, or civic process in which they are attempting to engage themselves. There is never any question as to the rules that are in effect at any given time. There is also an advantage to citizens in that the formal regulations, like the laws they support, transcend the terms or conditions associated with a one-time, single event or application. Rather, they represent a continuum of process. Their life also extends beyond the terms of specific individuals or bodies who serve in regulatory posts. They are institutionalized to the extent that their adoption is not transitory or vulnerable to change based on the specific agenda's, personalities, or styles particular individuals at a particular period of time.
2. What Regulations Can And Cannot Do
Typically, the laws guiding the promulgation of regulations include some statement as to what officials may and may not do through regulation. Of major importance, of course, is a seemingly universal limitation which precludes the adoption of any regulation which contradicts or contravenes the provisions of law. Nor can a regulation be designed to take away or infringe on the rights of citizens clearly created in the law.
In addition, officials are commonly restricted from imposing penalties or sanctions for violations of the regulations unless they have express statutory authority 10 do so. The same is true for attempts by an agency or administrative body to establish special fees through regulation unless a specific delegation of such authority is included in their mandate under the law.
It is fundamental that a regulation must be consistent with the statute, and formulated in such a way as to ensure that the purposes and objectives of the law are fulfilled.
Generally speaking, regulations are limited to:
- offering clarification;
- interpreting provisions of law that are vague or unclear;
- providing procedural or administrative detail.
Other criteria can also be applied to help agencies determine whether or not adoption of regulations is appropriate. For example, under the Alaska Administrative Procedures Act (APA) a distinction is made between «regulations» and other types of instructions, directives, interpretative bulletins or normative orders. In deciding to adopt a formal regulation, an agency is to consider «whether it will directly affect the public or be used by the agency in dealing with the public.» Even more specifically, if an agency's proposed rules, directives or requirements directly affect citizens or affect their rights they must be adopted by regulation under the formal requirements of the Administrative Procedures Act.
Case law resulting from legal challenges related to enforcement of agency regulations frequently contributes to further refining the criteria to be applied. For example, the validity of regulations may be measured by the degree to which they are «reasonable.» Regulators must ask themselves if their proposal offers a rational solution to the procedural question being resolved or if its clarification of the law is sensible and logical. To be perceived as «reasonable» a regulation must also be seen as equitable and fair. A finding that a regulation was not «reasonable» would result in a court ruling that the regulation was invalid.
Another consideration which a court may take under consideration is whether or not the regulations are «reasonably necessary.» If a court perceives that a regulation serves only as an administrative convenience with no discernable benefit to the puolic interest it may rule that the regulation is not «reasonably necessary.» Likewise, a regulation that is seen as superfluous or extreme relative to the orderly conduct of a process would also be ruled invalid on the basis that it was not «reasonably necessary.»
Fundamental to the validity and enforceability of a regulation is the agency s authority to adopt it. A regulation which is adopted outside the scope of authority conferred to the agency by law is usually found to be invalid. Likewise, certain actions taken by an administrative body in dealing with citizens or administering programs may be found to be invalid in absence of the necessary regulations. Imposition of administrative or procedural rules that impact a citizen's rights or limit their access to government programs and services but which have not been formally adopted and publicized in advance can also be ruled invalid. Courts are very likely to overturn rules, actions or decisions made by administrators without the benefit of statutory or regulatory authority, especially if such decisions have had a negative impact on citizens in exercising their rights or participating in the systems or programs afforded them under the law.
Deciding to Adopt a Regulation
In planning for the development of regulations there are a number of considerations which can contribute to the decision making process.
- What was the intention of lawmakers when they laws were enacted?
- What does the proposed regulation contribute to ensuring that the intent of the law is fulfilled?
- What constitutional or statutory rights of citizens will be affected?
- Who is the primary target audience; who will the regulations most directly affect?
- Does the agency or commission have a clear delegation of authority to adopt a regulation relative to the specific law being considered?
- In reviewing the law, what are the unanswered questions, vague terms or unclear requirements that need to be clarified?
- What does the administrative agency want to accomplish through the regulation being adopted?
- What will the agency have to do to prepare to enforce the regulations once they are adopted?
- When will the regulations have to be in force, and how much advance time will be needed to provide adequate disclosure and public education before they take affect?
These general guideposts can help administrators evaluate their own objectives and the determine if their regulations are appropriate and effective in serving the public interest.
3. Structure And Content
Generally speaking, under laws governing the administrative codes, there are specific rules to be followed in drafting regulations. These rules are designed to provide a uniformity of style, and to promote legal clarity.
Restating the Statutes
One of the first rules regulatory drafting is that the text of the law is not to be reiterated in the regulation. The law speaks for itself. Rather, the regulation only includes the new information intended to offer clarification or procedural detail necessary to carry out the law in actual practice.
The reasoning behind the avoidance of restating or paraphrasing a statute within a regulation has merit on several grounds. Restatement does not add to the force of the statute, nor does it amplify the force of the regulation. Secondly, it promotes the likelihood that inadvertent errors or misinterpretations can occur. If a law is paraphrased within the regulation there is a greater chance of its meaning being confused or misstated. And, since regulations in the United States have «permanent» or continuous status over time, there is a greater likelihood that subsequent iimendments to the statute will not be accurately reflected in uniform amendments to the regulation. Finally, there is a possibility that the reader will be mislead to believe that the regulation reflects all pertinent law on a given subject.
Repeating the literal text contained in a law is considered redundant. However, under the common rules of drafting, there is rarely any doubt as to which law is being referred to or which law is specifically relevant to the regulation. Each reference to an applicable law is cited by title, chapter, article and section.
A federal regulation in the United States would not include wording as general as «.....in accordance with federal law.» Instead, the specific law would be identified. The regulation would read, for example, «......in accordance with 2 U.S.C. 438(a)(8).» Should the reader need additional information, this citation would lead them directly to the applicable statutory provision.
Simplicity of Language
Because the intended audience of most regulations is the general public and those in particular who are seeking participation or access to a specific program or activity, there has been a recent trend in America to promote simple and understandable language in the writing of regulations. In some jurisdictions lawmakers have even prescribed certain literacy skill standards to be applied to legal and regulatory text. In these instances drafters are expected to measure the literacy level that would have to have been achieved for a person to be able to reasonably understand the text. Such tests help focus drafters on using plain language, shorter sentences and simpler words with fewsr syllables to ensure that someone without higher education would still be able to understand the rules sufficiently to comply with their requirements. The object has been to remove «legalese» and to put regulations well in the grasp of the broadest segment of citizens possible. In Alaska, for example, administrators are guided by a fev, principles of drafting including:
- Use of plain language, avoiding technical jargon or legal terms with which the general public may not be accustomed;
- Ensuring that language is as clear as possible;
- Use of consistent terminology, making sure that the same words or phrases are not used to denote different things, or that different words or phrases are not used to mean the same things;
- Selection of words that accurately state the agency's intended meaning;
- Drafting sections of a regulation in logical sequence to match the natural progression of events or steps in the process being regulated.
Definitions
In the interest of clarity and accuracy, it is not uncommon for regulations to include a special section devoted to defining certain terms that will be used in tlie text of the regulation. This is especially true when terms may be used in a the specific context of the regulation differently than how they are generally used in other contexts. Often a definition section will be essential to make the regulation precise and to avoid confusion. As is common in many specialized fields, the field of election management also uses terminology that has special meaning within the specific context. For example terms like initiative group, electoral association, and bloc may deserve definition so that as they are used throughout the context of the regulation, they are clear; y understood. Even a term like «citizenship» may have a unique meaning as it relates lo eligibility to vote as opposed to its meaning in other contexts warranting its being specifically defined relative to its use in the regulations. Sometimes, a term is already defined in a given law. For the purposes of the regulation, the definition may cite the usage as described in the specific law, citing it by its Article and Section number.
Already in the context of the upcoming presidential elections use of specific terms have caused some confusion because there has been no adequate definition applied to ensure that all participants shared the same understanding of the term. The term «state media,» has given meaning within the context of the Law on Mass Media, however it may need a different definition for its purpose in the allocation of free time on the «state media» to candidates in the context of the Law on Election of President. The term «campaign» has been difficult to define relative to what may constitute illegal «campaigning» prior to the registration of a candidate. Through the regulation process such clarifications may not only be warranted to the benefit of all participants, they can serve to eliminate difficulties in resolving controversies and disputes at a later date.
General Organization and Format
Typically, under both federal and state guidelines, regulations are organized in a format similar to that used in statutory construction. The organization of the code contributes significantly to its accessibility by the general public, its status as a continuous body of rules, and its ability to be added to or amended as needed.
Each department, agency or commission authorized to adopt regulations is assigned a specific Title number, with an organization of Chapters identifying specific major programs or operations falling under the jurisdiction under the regulating body. The State of Alaska, Division of Election fell under the Office of the Governor and was assigned Title 6 of the Alaska Administrative Code. Accordingly, any regulations adopted by the Division of Election was found in 6 AAC. Individual Chapters included such major components of election administration as Precinct Boundaries, Registration of Voters, Nomination of Candidates, Absentee Voting, etc. Each chapter is divided into Articles used to organize the sections within the Chapter into logical groupings. Subdivisions within the Articles are sections and subsections, and their subsequent paragraphs and subparagraphs. In written form the results reflect text which is organized in and outline format. A typical example of a formatted regulation related to election might be the following:
6 AAC (Title) 10 (Chapter) .020 (Article) identified in print as 6 AAC 10.020
6 AAC 10. ABSENTEE VOTING
6 AAC 10.020. ELIGIBILITY, (a) A registered voter who will be unable to appear at his or her regular polling station.......
(b) A registered voter who, because of illness, age, incapacity or confinement to an institution is entitled to vote through a personal representative........
(c) A registered voter who will be temporarily residing at a place outside his voting district is entitled to vote absentee by mail if
(1)......................
(2).....................
(A)....................
(B)....................
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The regulations would go on to detail specific rules related to other aspects of the Absentee Voting procedures with subsequent Articles covering such subjects as:
- 6 AAC 10.030. APPLYING FOR AN ABSENTEE BALLOT
- 6 AAC 10.040. ABSENTEE REVIEW BOARDS
- 6 AAC 10.050. ABSENTEE VOTING THROUGH PERSONAL REPRESENTATIVE
- 6 AAC 10.060. ABSENTEE VOTING IN PERSON
- 6 AAC 10.070. ABSENTEE VOTING BY MAIL
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The list of individual Articles would be expanded to cover the various aspects of absentee voting procedures as extensively as reasonably necessary. As reflected in the numbering of the articles there is space left for inserting new Articles as they become necessary without having to disrupt the sequence of Articles already adopted.
The definitive organization and numbering system allows for clear citation of the exact article and section number applicable to a particular process or function contributing to a citizens access to the regulation. It also contributes to the stability and continuity of the regulatory process by allowing specific sections to be amended, or repealed without affecting other provisions which should remain in effect. The body of rules remain intact even though revisions may be necessary to accommodate new circumstances or remedy past deficiencies.
When a change is necessary, the adopting agency can address the specific provision affected separately and identify the type of change which is being made. For example, the following represent the manner in which the responsible agency or commission may identify the change they are implementing.
- 6 AAC 10.020 is repealed and readopted to read:
- 6 AAC 10.020 (a) is amended to read;
- 6 AAC 10 is amended by adding a new section to read:
- 6 AAC 10.025. PROOF OF RESIDENCY.
- 6 AAC 10.030 is repealed.
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The utility headings identifying the types of changes being made are temporary and are eventually removed after all preparatory efforts have been completed. However, they are very useful during the drafting phase and during deliberations by the adopting body or any review committee or authority who oversees the adoption process. They are also useful to any group or body from whom input is being sought. Once the adopted change is finalized, the new version is codified for permanent retention in standard regulatory form.
Citation of Authority
Another critically important feature in the regulatory process in the United States is the required citation of authority which identifies the specific statutory provision under which the adopting agency or commission is acting in its adoption of the regulation. Under Alaska's taw, for example, such a citation is mandatory following each adopted regulation, and if a number of articles are involved, following each separate article. At the end of the particular regulation or Article, a space is made for the word «Authority» followed by a listing of the specific statutes by number under which the agency has been delegated specific authority to adopt the regulation. There are generally two types of statutory authority under which agencies and commissions adopt regulations:
- «general authority» usually stated in the description of general duties assigned to the agency or commission;
- «specific authority» stated in a provision which specifically requires the agency or commission to formulate regulations or instructions to guide a specific activity.
An example of «general authority» in the Law on the Election of President of the Russian Federation might be found in Article 15. Powers of the Central Election Committee of the Russian Federation, Article 15 (3) states that one of its delegated powers is to «....issue instructions, and other normative acts on the questions of application of this Federal Law, binding upon all election committees performing the preparation and conduct of the election of President of the Russian Federation...» Under U.S. procedures, however, there might be a legal question raised in that the law says nothing about issuing instructions and other normative acts that are binding on citizens, electoral associations, or blocs. This is the kind of omission chat should be addressed in future legislation regarding powers of the Central Electoral Commission to regulate administrative procedures to eliminate potential legal questions about their authority to impose such regulations on the public and other election participants
An example of «specific authority» under the Law on the Election of President of the Russian Federation might also be found in Article 15. Under subsection (15) of that Article the Central Election Commission is specifically directed to «....establish a uniform procedure for processing of the results of the voting...»
Sometimes only the general authority will be necessary, but whenever possible, agencies are advised to cite all references which are applicable.
The citation of authority can serve a valuable purpose. First, it can help agencies and commissions ensure they are within the scope of their mandate. By being able to identify the actual statute under which they have been delegated regulatory power agencies can be sure they are acting with sufficient and appropriate authority. These citations can also support the position of the adopting agency when regulations or decisions based on regulations are challenged in court.
History Notations
Another practice in both federal and state regulatory procedure is the inclusion of a history notation for each section of the administrative code. Set in parentheses at the end of each section is indicated the date when the regulation first took affect, when any subsequent amendments were made, and where appropriate, the dale which the regulation was officially repealed. Each date is also associated with a notation of the number of the Legal Register in which the action was recorded. A history note might read: (Effective 2/3/77, Register 61; Amended 9/28/85, Register 95, Amended 1/1/88, Register 104.) Once again, public access to the history of a particular regulation is facilitated. There is little question as to where to find the former text. A review of the particular registers will disclose the various versions of the regulation and give a full history of amendments that have been affected over the course of time.
4. Public Disclosure
Fundamental to the adoption of regulations is an affirmative obligation of the agency or commission to provide full public notice of the intention to adopt a proposed regulation before final action is taken. Under the Administrative Procedures Act, for example, public notice of the agency's proposed action must be given not less than 30 days prior to the actual date final adoption of the regulation is to take place. This obligation relates to initial adoption as well as to any amendment or repeal that might subsequently be proposed.
Full public disclosure meets two objectives:
- the public and targeted interested groups, administrative bodies and others are informed of the agency's proposals and have opportunity to become familiar with them and offer comment on them before final adoption takes place; and,
- the administrative agency or commission has the opportunity to receive input and information from those persons or groups who may have worthwhile insights or comments which can serve to improve the final regulation.
Ideally, once the public notice period has ended there should be at least 30 days between the time the regulations are formally adopted and the date by which it is expected that they will be needed in actual practice. This means that the drafting and initial public notice should be accomplished at least 60 days prior to a deadline established in law for the activity or process to which the regulation is applicable. This extra 30 days gives citizens and groups time to become familiar with the final text of the regulation as it has actually been adopted in time to ensure their ability to comply with its requirements.
During the time constrained and pressured atmosphere immediately preceding an election such procedures may seem burdensome, however, due to the particularly sensitive nature of the election process, advance notice can be extremely beneficial in closing opportunities for misconceptions or controversies to arise once the election cycle is underway.
Meeting the time line requirements ultimately means that administrate irs must give considerable attention to pre-planning to ensure that their regulatory work can remain ahead of the election calendar. Administrators often find it helpful to create a special calendar based on deadlines established in the election laws just for the purposes of developing the appropriate regulations that will be necessary. Ideally, the time to focus on comprehensive regulatory work is between elections.
Contents of Public Notice
Laws such as the Administrative Procedures Act usually direct the content and dissemination of public notice. What follows is a sample of the kinds of information administrators are commonly expected to include in their public disclosure materials:
- The name and address of the adopting agency or commission;
- Full text or an informative summary of the regulation being proposed which describes the subject and substance of the regulation or the changes being proposed to an existing regulation;
- The date on which formal adoption is expected to take place;
- A citation of the authority under which the agency or commission is adopting the regulation;
- The deadline by which interested persons may submit written comment to the agency about the proposed regulations and the address to which such comments are to be sent.
- A statement about any fiscal impact implementation of the regulation may have on the overall operating budget of the Commission.
Creating the opportunity to receive public comment on the proposed regulation does not put a mandatory burden on the agency that each recommendation must be incorporated into the final text of the regulation. Clearly, some recommendations may not be suitable or conforming to present law. Other suggestions may interject an unwarranted bias which would not be consistent with the principles of fairness. Still others may suggest procedures which are overly burdensome and impractical or impossible to enforce.
Among the comments, however, may be some valid insights and information about circumstances that escaped the scrutiny or notice of drafters who are sometimes one step removed from the conditions and circumstances faced by participants in actual application. Accommodation of these conditions or circumstances in the procedural text could potentially improve the regulation greatly. Often administrators are limited in their full understanding of the difficulties or obstacles faced by citizens or groups who are actively involved in the process outside the bureaucracy. Sometimes their insights can be most helpful to administrators in formalizing regulations that are reasonable, effective and workable. Most importantly, they can help administrators draft rules that effectively meet the needs of those who will be bound by their requirements as they actively engage in the public process or seek to participate in the government's programs.
The statement of fiscal impact is often accompanied by an actual «fiscal note» which identifies the amount of funding that will have to be spent to carry out the agency's or commission's burden in implementing the regulation. This «fiscal note» itemizes particular line items of the budget that will be impacted and is necessary for general fiscal planning. It is also helpful to alert the legislative body to appropriations which may have to be adjusted. It can also be a helpful tool for the legislative body to understand the costs of implementing the general programs envisioned in tlie law.
Distribution of Public Notice
The key to effective disclosure and meaningful input is effective distribution. Under the Administrative Procedures Act there are minimum requirements for public outreach regarding proposed regulations. Typically, those requirements include:
- Publication in an official gazette;
- Publication in newspapers of general circulation;
- Distribution to relevant committees or staff members of the legislative body who would normally be responsible for activities related to the specific area of legislative interest covered by the regulation;
- Publication in special interest trade or scientific journals whose readerships include people who would be most likely to have a vested interest in the subject matter of the regulation;
- Distribution to specific groups, parties, organizations and others who would normally be interested in the program or activity governed by the regulation;
- Distribution to lower level commissions or administrative bodies who might have direct responsibility for carrying out or monitoring the activity or program covered by the regulation;
- Dissemination to individuals or groups who asked to receive regulations of the agency or commission on an ongoing basis.
As a general rule administrators working under such guidelines maintain an on-going distribution list. In the matter of elections the list is usually easily focused. In the Russian Federation, for example, a distribution list might include all registered electoral associations as a matter of course. During election cycles, all registered initiative groups might be added to the distribution lists. Non-governmental organizations, institutes or associations who engage in activities related political analysis or activism or to voter education might be included. And of course, as officials responsible for carrying out various aspects of the election process, local administrative authorities and lower level election commission could provide invaluable feedback from their own personal experiences and perspectives.
All information regarding the distribution and publication of the public notice as well as copies of any comments or recommendations received are made part of the permanent record of the history of the adoption process. Such materials and documentation can serve as valuable support of the commission's decision making process especially if challenges are filed or as courts hear cases brought before them related to decisions of commissions based on their regulatory authority and enforcement of the rules.
What is most important is that citizens have adequate access to information about the important rules that will ultimately affect the exercise of their rights and their opportunities to fully participate in public affairs and government programs' and services. Through their affirmative and conscientious efforts to promote public awareness, officials have the opportunity to strengthen the election process, promote cooperative compliance and to diminish the potential for misunderstandings, controversies and challenges that ultimately disrupt the free, fair and accountable conduct of elections.
5. Summary
The regulatory system commonly associated with western legal traditions and particularly those in the United States is as complex as it is comprehensive. It must also be acknowledged that the procedures described here are supported by a long standing legal and bureaucratic infrastructure. It is recognized that such a system may not be immediately transferable or suitable in the context of the current legal system of the Russian Federation. However, there may be some features which could be incorporated into the regulatory process without disrupting or stepping outside the current legal context. Perhaps within this brief overview of the regulatory process from a western perspective there are some ideas or concepts that will be worthy of the Commission's consideration as they continue their work in this very important endeavor. In particular, are those that can help guide the Commission's decision making process about determining when regulations are necessary and appropriate, promote clarity and precision or intended meaning, improve public and participant awareness of the requirements, and minimize vulnerability to legal challenge.
For Consideration
- As part of the overall strategic plan, a review of the fundamental issues involved in deciding when regulations are necessary can help officials in making well focused and sound choices.
1. What was the intention of lawmakers when they laws were enacted?
2. What does the proposed regulation contribute to ensuring that the intent of the law is fulfilled?
3. What constitutional or statutory rights of citizens will be affecied?
4. Who is the primary target audience; who will the regulations most directly affect?
5. Does the agency or commission have a clear delegation of authority to adopt a regulation relative to the specific law being considerec?
6. In reviewing the law, what are the unanswered questions, vague terms or unclear requirements that need to be clarified?
7. What does the administrative agency want to accomplish through the regulation being adopted?
8. What will the agency have to do to prepare to enforce the regulations once they are adopted?
9. When will the regulations have to be in force, and how much advance time will be needed to provide adequate disclosure and public education before they take affect?
- Preparation of a comprehensive election calendar which identifies key dates by which regulations must be in place is a helpful tool in the planning phase.
1. Providing as much advance time is a critical element in ensuring that the public and election participants are adequately informed and ready to comply.
2. Whenever possible, using the time between elections tn formalize a comprehensive regulation package allows Commissions to maximize their strategic plan and enhance thoroughness with which they can prepare effective and enforceable regulations.
- Including a clear citation of the relevant articles of laws or other regulations by name and number leaves little question as to the legislation that is applicable.
1. These specific citations give the general public and election participants a clear track to the full body of laws with which they should be familiar.
2. It also alleviates the necessity of restating the law inself within the context of the regulation and helps to avoid potential for confusion dufc to inadvertant error, or misinterpretations which could occur because of incomplete repitition of the full text.
- A clear statement of statutory authority serves as a guidepost to Commissions in determining the scope of their mandate, and can be helpful in supporting decisions of the Commission when their actions or decisions are challenged or brought before the courts.
- By providing sufficient advance public notice and soliciting inpui from citizens, groups and officials who will be most directly affected by a regulation, the Commission can promote transparency, public confidence in the process and improved compliance.
1. Preparation and maintainance of a distribution list can contribute greatly to the Commisisons overall civic education objectives and promote cooperation between the Commission and the participants they serve.
2. The input received may contribute greatly to the effectiveness of the regulation.
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