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I. Ivanov. Television and the 1999 Elections: Some Organizational and Legal Aspects
The Federal Laws «On Basic Guarantees of Electoral Rights of Russian Federation Citizens,» «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» (the version which was in force up to July 1, 1999) and «On the Elections of the President of the Russian Federation» laid down the conditions for election campaigning on TV and radio in a relatively detailed manner. There were no marked differences between these laws in the way they regulated election campaigning.
At the same time, these laws stipulated that more detailed rules for the provision of free air time by state-owned TV and radio companies for election campaigning would have to be drawn up by the Central Election Commission of the Russian Federation (CEC RF). The need for such rules stemmed from the opinion that no matter how detailed a law is, it cannot and should not deal with such issues as the period for submission of requests for provision of paid and free air time, the method of distribution of air time (by lot), the period and rules for the provision of air time in case of repeat voting and repeat elections and rules for the consideration of information disputes, etc.
The rules established by the CEC RF were also necessary to fill the legal vacuum in the sphere of the mass media (at least for the period of election campaigns). They defined such concepts as «state-owned TV and radio company,» «national state-owned TV and radio company,» «political advertising,» «kinds of election propaganda,» etc. These definitions are still absent from the Russian Federation laws: as was mentioned above, the rules were in force only during election periods.
Moreover, as legal acts the CEC RF rules are more flexible than laws: their provisions may be corrected, amended or annulled simply and quickly - an important advantage in the hectic conditions of elections.
However, the new electoral legislation - the 1999 version of the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» and the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» - is based on a completely different concept: all norms regulating election campaigning, including campaigning on TV and radio, must be incorporated in a law; the issuing of any CEC RF rules or other executive acts correcting and specifying these norms is not envisaged. Of course, practical experience will show how effective this position is, but I believe that if the CEC RF is deprived of the right to issue instructions on election campaigning, the course of election campaigns will be adversely affected.
Legislative regulation of the conditions for election campaigning on TV and radio may have its drawbacks but this does not diminish the importance of further development of the Russian Federation laws in this sphere.
Free Air Time
The first sentence of Clause 1 Article 55 of the Federal Law on the election of deputies to the State Duma reproduces all similar norms contained in other electoral laws of the Russian Federation. TV and/or radio broadcasting organizations which come within Clause 1 Article 39 of the Federal Law on basic guarantees (here the law speaks about TV and radio companies which are founded (co-founded) by state bodies, organizations, institutions and/or which were financed by up to 15% of their budget from the funds allocated by bodies of state power or bodies of local self-government during the year preceding official publication of the decision to call the elections - for simplicity's sake these organizations shall be referred to as «state-owned organizations») must provide free air time to registered candidates, electoral associations (blocs) and referendum initiative groups.
Although this norm actually reproduces similar norms of former electoral laws, the law-maker did not, unfortunately, resolve several questions which, I think, are vital for the normal conduct of election campaigning on TV and radio.
The first problem. This problem arises from the condition that the TV and radio company must be founded (co-founded) by state bodies and organizations.
The point is that foundation (co-foundation) often plays a merely formal role and does not establish any solid links between a TV and radio company and the state. For instance: the Federal Law «On Joint-Stock Companies» differentiates between the concepts of «a founder» (a person who took part in the establishment of a company) and a «shareholder» (a person who owns a block of shares). It is quite possible that at the time elections are called a founder may no longer be a shareholder of the organization which he founded: state and municipal bodies and organizations are not deprived of the right to dispose of their shares. So, it may well happen that a TV and radio company whose shareholders do not include any state or municipal bodies and organizations will be required to provide free air time. I think that even the mere possibility of such a situation must be ruled out.
State bodies acting as co-founders of a TV and radio company together with other organizations may have a very small shareholding in the company, which makes the links between the company and the state rather nominal: 0.5%, 5%, 10%, etc. Therefore, the law should have specified the controlling (blocking) interest (stake) of the state in a TV and radio company.
The second problem. This problem arises from the condition that the TV and radio company must be financed from the funds allocated by federal bodies or Subjects of the Russian Federation. Some progress has been made with the inclusion of a provision establishing the amount of such financing: 15% of the budget of the TV and radio company during thea year preceding the day on which the elections were called (the former laws contain a debatable provision speaking about «full or partial financing»).
The point is that the legislation of the Russian Federation does not define in clear terms what «financing from the funds allocated by the bodies of power» means. Financing may mean benefits and state subsidies granted to TV and radio organizations; government contracts (awarded by federal and municipal authorities or by Subjects of the Russian Federation) or the funding of special programs on TV and radio (programs devoted to law, ecology, culture, education, etc.).
Yet another understanding of «financing» is demonstrated by the new federal laws, which establish (Clause 5, Article 40 of the Federal Law on basic guarantees, Clause 11, Article 56 of the Federal Law on the election of deputies to the State Duma) that expenses incurred by TV and radio companies in the provision of free air time to participants in the electoral process must be covered by the current budget financing.
In the near future, the problem of provision of free air time to candidates in the elections held in the Subjects of the Russian Federation will be paramount of importance.
The transformation of the National TV and Radio Company (VGTRK) into a holding company including all regional TV and radio companies and the loss of economic and legal independence by these companies make it legally impossible for the Subjects of the Russian Federation to establish an obligation to provide free air time on the channels financed by the national broadcaster. In many regions, local state-owned TV companies are exactly the companies that must now be incorporated into the national information holding company. This problem must be resolved as soon as possible, primarily at the legislative level.
An important provision of the new electoral laws is that free air time must be provided during the peak viewing or listening times of the state-owned channels (hereafter we will use this term for brevity); the so-called «prime time.» Neither the Federal Law on basic guarantees nor the Federal Law on the election of deputies to the State Duma says anything about who will determine this period and how, although in the absence of any instructions from the CEC RF such uncertainty may render this norm ineffectual. In the future, it would be better if electoral commissions defined the parameters of `prime time' on the basis of special sociological surveys or at their own discretion on the basis of advertising rates, which, as a rule, are highest during peak viewing or listening period.
Under the federal laws the national and regional TV and radio companies allocate free air time only on working days - not less than one hour per day on the channels of the national TV and radio company and not less than 30 minutes per day on the channels of regional TV and radio companies. This norm, too, has to be corrected because actually, as I have already said above, independent regional state-owned TV and radio companies no longer exist in the regions. For companies that remain independent and broadcast for less than two hours per day the Federal Law makes an exception: the mandatory amount of free air time to be provided by such companies must not be less than one-fourth of their daily broadcasting time.
Mechanism of Provision of Free Air Time. Lot-Drawing
The new version of the Federal Law on the election of deputies to the State Duma sets out more detailed arrangements for the provision of free air time by state-owned TV and radio companies.
First, according to Clause 2 Article 55, state-owned TV and radio companies whose stable reception zone extends to one half or more than one half of the Subjects of the Russian Federation must provide possibilities for election campaigning - primarily, free air time - to electoral associations (blocs) which have registered federal lists of candidates. This category of TV and radio company includes ORT (»Public Radio and Television»), VGTRK and TV-Center.
State-owned TV and radio companies whose stable reception zone extends to less than one half of the Subjects of the Russian Federation and the affiliates of VGTRK (Clause 3 Article 55) must provide free air time to regional groups and to candidates running in single-mandate districts, respectively.
Second, according to Clause 6 Article 55, a candidate nominated by an electoral association (bloc) in a single-mandate district and simultaneously included on the federal part of the list of candidates of the same association (bloc) is not entitled to free air time on the channels of the national state-owned TV and radio companies.
A candidate nominated by an electoral association (bloc) in a single-mandate district and simultaneously included in the federal part of the list of candidates of the same association (bloc) may use free air time on the channels of regional state-owned TV and radio companies either as a candidate running in a single-mandate electoral district or as a candidate included in the regional group (Clause 7 Article 55).
Lastly, the new federal legislation reproduces the norm contained in the former laws, according to which free air time must be distributed among the candidates and electoral associations and blocs on equal terms (in respect of amount, time periods and other conditions).
Article 56 «Terms and Conditions of Election Campaigning on TV and Radio» of the new version of the Federal Law on the election of deputies to the State Duma sets forth a detailed procedure for ensuring such equality.
Thus the Law (Clause 2 of Article 56) establishes that within a week upon the end of registration of candidates (lists of candidates) arrangements shall be made for lot-drawing to distribute free air time between registered candidates, regional groups and electoral associations (blocs) that applied for participation in such lot-drawing. Unfortunately, the law does not establish a period for submission of such applications and does not designate a body or an organization to which they must be submitted. Moreover, from the standpoint of rights and guarantees of candidates, it is quite incomprehensible how a refusal to provide free air time can be justified only by a delay in the submission of an application, if it is submitted, say, 31 and more days prior to election day (i.e. before the period during which free air time is provided).
This problem must be cleared up immediately, either by the law maker (which would be most proper) or by the CEC RF (as a last resort).
Lot-drawing for the provision of free air time to electoral associations (blocs) on the channels of the national state-owned TV and radio companies is organized by the CEC RF with the participation of the TV and radio companies.
Lot-drawing for the provision of free air time to candidates and regional groups is organized by the election commission of the Subject of the Russian Federation, also with the participation of appropriate TV and radio companies.
Lot-drawing decides the date and time of transmission of election propaganda materials. The results of lot-drawing are recorded in an act and the distribution of air time as determined by lot is published by the election commission which organized the lot-drawing in official periodicals.
It must be pointed out that the Federal Law on the election of deputies to the State Duma establishes a definite period within which free air time is provided on the channels of state-owned TV and radio companies: this period commences 30 days prior to voting day and ends a day before voting day.
Municipal Television and Election of Deputies
Under the new Federal Law on the election of deputies to the State Duma (Clause 4 of Article 55) municipal TV and radio companies (i.e. companies co-founded by bodies of local self-government and/or financed at least to 15% of their budget from the funds allocated by bodies of local self-government), unlike their state-owned counterparts, must merely ensure equal possibilities for candidates, associations (blocs) and regional groups in the provision of paid and free air time. On the channels of these TV and radio companies campaigning may commence immediately after the end of registration of candidates, federal lists. At the same time, the Federal Law allows the possibility for municipal TV and radio companies to refuse to participate in election campaigning.
Collective Use of Free Air Time
Clause 2 Article 40 of the Federal Law on basic guarantees contains a new norm which aims to influence the contents, rather than the form, of election campaigning. According to this norm not less than one-third of the total amount of free air time allocated by state-owned TV and radio companies to candidates and electoral associations (blocs) must be set aside for joint debates, roundtables and other collective campaigning events. This time, too, must be available to participants in election campaigning on equal terms and conditions.
This norm poses a number of serious questions which have to be resolved legislatively lest doubts be cast on the legitimacy of the election campaign and the guarantees for the equal rights of candidates, electoral associations and electoral blocs. These questions are:
1) Who will determine the forms of collective campaigning events (a discussion, a debate or a roundtable) and how?
2) What will happen to the time that for some reason is not «taken up» by the participants in election campaigning (as was the case in the 1995 elections when some electoral associations and blocs refuses to participate in collective campaigning events)? The new Federal Law on the election of deputies to the State Duma deals with only one aspect of the problem by establishing that the refusal of a candidate, electoral association (bloc) or group of candidates to participate in collective campaigning events does not increase the amount of air time available to them on the basis of lot-drawing results (Clause 8 of Article 56).
3) What will happen and who will take the appropriate decision (state-owned TV and radio companies or the CEC RF) if only one participant turns up for a debate? Will that participant be allowed to go on air (using the possibility granted to him under Article 40 of the Federal Law) or will he be refused this possibility so that the principle of equal terms and conditions is observed?
These and other questions arising from this norm must be resolved legislatively as soon as possible lest the management of the state-owned TV and radio companies run into serious problems in the organization of election campaigning.
It must be noted, however, that compared to the Federal Law on basic guarantees the new Federal Law on the election of deputies to the State Duma establishes the time to be set aside for joint campaigning events more definitely: one-third of the total amount of free air time (in the Federal Law on basic guarantees the corresponding provision is rather vague, to say the least: not less than one-third, i.e., the proportion may be even greater, up to 100%).
Provision of Paid Air Time
Unfortunately, the new federal legislation still allows air time to be made available on a paid basis. In the past, the CEC RF rules limited the amount of paid air time to that of free air time. Now, however, Clause 3 Article 40 of the Federal Law on basic guarantees establishes that the total amount of reserved air time must not be smaller than the amount of free air time, i.e., under the laws of the subjects of the Russian Federation, it may exceed the amount of free air time by an unlimited amount. The possibility of provision of paid air time by state-owned TV and radio companies, dubious as this possibility is per se, is compounded in this Law by the absence of any limitations with regard to the amount of paid air time to be made available. Clearly, the allocation of unlimited air time on a paid basis may only work to the advantage of affluent candidates and electoral associations. Is this proper in the formation of bodies of state power? Hardly so.
However, Clause 12, Article 56 of the Federal Law on the election of deputies to the State Duma establishes that total paid air time reserved may not exceed total free air time more than twice.
Reserved paid air time is provided to a candidate, an electoral association or bloc on the basis of a contract. Clause 18 Article 56 specifies a number of important terms and conditions to be included in such a contract reflecting its public-law nature: the rights and responsibilities of a journalist-moderator; the nature and type of election propaganda; the time of transmission; the duration, etc.
Under Clause 14 Article 56 paid air time must be provided:
- firstly, during the same period as free air time (30 days);
- secondly, according to the results of lot-drawing to be organized by the state-owned TV and radio company on the basis of written requests from the participants in the electoral process. This lot-drawing must be held within a week after the end of registration of candidates.
In this situation, the questions which arose in connection with lot-drawing for distribution of free air time become even more acute. Now, the entire responsibility for a possible refusal to grant paid air time is borne by the management of the given TV and radio company. This is compounded by the fact that the Federal Law does not establish a definite period for submission of the requests.
A candidate, an electoral association (bloc) or a regional group (Clause 15 Article 56) may refuse to use paid air time by serving not less than two days' notice to this effect on the given state-owned TV and radio company. It would be quite appropriate to establish that those who pass this deadline must not count on a refund of the sums paid for the air time - apparently this would result in losses for the company.
The TV and radio company must not use the released time for election campaigning (a very questionable provision: under Clause 22 Article 56 transmission of election propaganda materials must not be interrupted, specifically, for advertising goods and services).
The rates to be charged for air time must be the same for all candidates, electoral associations and electoral blocs and must be made public not later than 20 days after official publication of the decision to call the elections. The payment must be made in full before provision of air time and only through electoral funds.
Under Clause 19 Article 56 a payment order to the Savings Bank of the Russian Federation for remitting the full amount of money in payment for air time must be presented to the TV and radio company not later than two days before transmission.
If the payment order is not presented in time, provision of paid air time is not allowed (this applies to all TV and radio companies without any exceptions).
Publication of the rates is the responsibility of the management of TV and radio companies. Here, the following question arises: should the rates charged per unit of air time be the same for a candidate and for an electoral association (electoral bloc)? I believe that they should not. This needs to be corrected in future laws. Another question: is publication of the rates mentioned above to be carried out for a charge and, if so, will these expenses come within Clause 5 Article 40 of the Federal Law on basic guarantees or Clause 11 Article 56 of the Federal Law on the election of deputies to the State Duma? This point must be also clarified in the electoral legislation.
Equal rights of the participants in election campaigning are ensured not only by equal rates but also by equal terms for the provision of the reserved paid air time: a candidate (electoral association or electoral bloc) receives a portion of the reserved paid air time, which is obtained by dividing the total amount of this time by the total number of the participants in the election campaign in the given electoral district.
Clause 5 Article 40 of the Federal Law on basic guarantees and Clause 11 Article 56 of the Federal Law on the election of deputies to the State Duma establish that the expenses incurred by TV and radio companies in the provision of free air time for election campaigning purposes must be covered from the current budget financing of these companies.
Unfortunately, in view of the present-day economic situation in Russia and problems in budget financing the TV and radio companies will most likely bear all expenses themselves.
Perhaps the relevant federal laws could be amended to establish that in the absence of current financing these expenses will be paid from the funds allocated by the CEC RF for the preparation and administration of the elections. I think that this would provide an important guarantee for state-owned TV and radio companies and allow them to conduct an election campaign at the proper professional level.
A special mention must be made of a norm (Clause 21 Article 56) common to all TV and radio companies which provide paid air time for election campaigning. According to this norm, if, while using paid air time, a candidate or an electoral association (bloc) breaches the provisions of the Federal Law on the election of deputies to the State Duma, the company may apply to a court for cancellation of the contract for the provision of air time. In this case, too, the released air time must not be used for election campaigning purposes.
Information and Propaganda
The current federal laws on elections contain on entirely new norm that is very difficult to put into practice. This norm applies to all TV and radio companies which broadcast news.
According to this norm TV and radio companies must not give any preference «to any candidate, registered candidate, any electoral association or bloc, in particular with regard to the time devoted to highlighting their campaigning activities». This means that a TV and radio company must either devote equal time to each participant in the electoral process in its newscasts or abstain from mentioning any participant at all if the company does not have a so-called «information lead» to speak about some candidate. In view of this I think it advisable that the words «in particular» be deleted from this norm.
Private TV and Radio Channels and the Elections
Special attention must be drawn to what I think is a serious contradiction between the two new Federal Laws: the Law on the election of deputies to the State Duma and the Law on basic guarantees.
Under Clause 8 Article 55 of the Federal Law on the election of deputies to the State Duma non-state-owned (non-municipal) TV and radio companies (so-called private companies) may provide air time for election campaigning purposes for a charge, on a contractual basis. The company must observe only one condition: the rates and the terms of payment must be the same for all candidates, electoral associations (blocs) and regional groups.
At the same time, Clause 2 Article 39 of the Federal Law on basic guarantees states that municipal and private TV and radio companies must not only set the same rates but also must provide air time on equal terms and conditions.
As you see, the difference is rather considerable. Private TV and radio companies (and other companies as well) will presumably use the norm of whichever law best suits their interest.
Recording and Safekeeping of Election-Related Materials
Special attention must also be drawn to Clause 9 Article 55 and Clause 25 Article 56 of the Federal Law on the election of deputies to the State Duma.
According to Clause 9 TV and radio companies (regardless of the form of ownership) which participate in election campaigning, i.e. provide free and/or paid air time, must keep separate records of the amount and cost of the two kinds of air time according to the forms established by the CEC RF. They must also furnish these data - firstly, five days before voting day and, secondly, within five days after voting day - either to the CEC RF (with regard to electoral associations, including candidates in the federal part of a federal list and regional groups) or to the election commission of a Subject of the Russian Federation (with regard to candidates running in single-mandate electoral districts). In addition to this TV and radio companies must, upon request of appropriate election commissions, present documents confirming the consent of a candidate or an electoral association (bloc) to the provision of paid services and the payment for them.
According to Clause 25 Article 56 TV and radio companies must record programs containing election propaganda materials and keep the recordings for 12 months from the day on which these programs were broadcast; the companies must also keep the records concerning provision of free and paid air time indicated in Clause 9 Article 55 of this Federal Law for five years after voting day.
General Requirements for Election Campaigning
Concluding this analysis of legal regulation in respect of participation of TV and radio companies in campaigns for the election of deputies to the State Duma I would like to dwell on several important and significant norms common to all mass media.
I. Candidates who work in the mass media under a labor or a civil-law contract must be relieved of their official duties while they participate in the elections. Not later than three days after registration such candidates must present a certified copy of the relevant order or directive to the election commission (Clause 3 Article 48 of the Federal Law on the election of deputies to the State Duma). Moreover, under Clause 6 of the same article officials, journalists and creative workers of TV and radio companies, if these individuals are candidates, agents or authorized representatives, are prohibited from highlighting the election campaign through the mass media.
II. When the results of election-related public opinion polls are broadcast (or transmitted over a cable) TV and radio companies must indicate the name of the organization which conducted the poll, the time when it was conducted, the number of people polled (the sample), the method used for collection of information, the precise formulation of the question and the statistical assessment of the probable error (Clause 1 Article 54 of the Federal Law on the election of deputies to the State Duma).
In addition to this, under Clause 2 of the same article any TV and radio company which broadcasts the results of such polls and forecasts relating to the elections must furnish the relevant recordings to the election commission of a Subject of the Russian Federation or to the CEC RF for the formation of a data bank and, on request, to foreign (international) observers.
III. State-owned and municipal TV and radio companies must ensure equal conditions for the participants in the electoral process with regard to transmission of their election propaganda materials (Clause 2 Article 59 of the Federal Law on the election of deputies of the State Duma). However, the Federal Law does not prohibit establishment of different prices for the production of such audio-visual materials.
IV. Propaganda which violates Russian Federation laws on intellectual property is prohibited (Clause 1 Article 60 of the Federal Law on the election of deputies to the State Duma). For instance, the absence of a permission from a copyright owner for the use of copyright works for propaganda purposes will constitute a legitimate reason for a refusal to air the corresponding election propaganda material.
V. In the course of an election campaign the business and other activities of candidates, electoral associations (blocs), agents, authorized representatives and the organizations whose founders, owners and/or whose governing bodies include the said persons and organizations may be advertised only for the account of the appropriate electoral funds and on the condition that they are all charged the same rates (such advertising is not allowed on voting day and the day preceding voting day) - Clause 3 Article 60 of the Federal Law on the election of deputies to the State Duma.
Here, there is a serious omission in the Federal Law, which may simply paralyze the activity of TV and radio companies.
The Law does not say how TV and radio companies are to be notified of all persons participating in the elections. But even if all the necessary information is somehow furnished to TV and radio companies, they will hardly be able to cope with the huge amount of work required to find out all founders, owners, members of the management, etc. And, according to Clause 17 Article 53 of the Federal Law on the election of deputies to the State Duma (which applies to all cases of the aforementioned advertising), a TV and radio company which does not meet the requirement of equal conditions is not allowed to provide air time for advertising. Again, television is the scapegoat and this arouses grave concerns.
VI. A state-owned TV and radio company is entitled to require and obtain compensation for the cost of the provided free air time from an electoral association (bloc) which received less than 2% of the vote (Clause 5 Article 67 of the Federal Law on the election of deputies to the State Duma).
Within 10 days upon official publication of the election results the TV and radio company must inform such associations (blocs) about the amount and cost of the free air time as well as the legal address and the bank account of the company.
The TV and radio company determines the cost of free air time provided to an association (bloc) on the basis of the rates which it charges for paid air time.
The cost of free air time provided for joint events is divided into equal parts between all participants.
No fee is charged if an electoral association (bloc) officially refused to use free air time (or any part thereof).
The compensation must be paid within 12 months (Clause 14 Article 67 of the Federal Law on the election of deputies to the State Duma).
VII. Under Clause 6 Article 92 of the Federal Law on the election of deputies to the State Duma any violation committed in favor of candidates or electoral associations (blocs) which lost the elections cannot serve as a reason for annulling the election results.
This norm, well-intentioned as it may be, provides an extremely safe and convenient legal cover for so-called «dirty» electoral strategies. For some unknown reason the law ignores the effect of violations on the results. This is a matter of crucial importance because the knock-on effect of committing violations may influence the election of others more strongly than one's own election. Therefore, this norm must either be abolished or, at least, substantially revised.
I.V. Ivanov
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