FDA Talking Points: Legislative Electoral Process

In its 2012 Electoral Fairness Report on the United States, the FDA identifies a sound legislative process including sound and effective citizen complaint and judicial processes, but weak election laws in the areas of electoral finance and media election coverage. As stated below, a legislative process is only as effective as the laws which make-up the process.

The Foundation for Democratic Advancement (FDA) takes the position that the legislative electoral process including election law and monitoring and enforcement mechanisms, is important to a well-functioning and legitimate democracy. However, legislative electoral process is only as effective as the laws which are being monitored and enforced. For example, if there are severe fines for electoral finance wrongdoing, and yet no electoral finance transparency law, then these fines or enforcement mechanism have no consequence.

In addition, legislative electoral process with strong and comprehensive election law is contingent on sound monitoring and enforcement mechanisms. For examples, if there are laws for electoral finance transparency of all registered candidates and parties, and yet very weak penalties for electoral finance wrongdoing, then this required transparency has minimal consequence. Similarly, if there are severe fines and lengthy imprisonment for election fraud, and yet very limited monitoring mechanisms, then these fines and imprisonment will have minimal impact on an election process. Consequently, the FDA gives high audit score value to election law followed by monitoring and enforcement mechanisms and significantly less value to legislative process itself.

In its on-going 2013 international democracy audit involving 45 countries and over 75 percent of the world's population from every continent, the FDA did not include legislative process as a research variable because, as mentioned, of its dependency on election law and rules.Yet, in its assessment of rule of law for each country in the international audit, the FDA has a checklist item for legislative process in the form of an independent election administration body and citizen complaints process.

From its research on democracy worldwide since 2007, the FDA has observed pseudo democracies in many Western countries whereby electoral processes have various layers of unfair and fair processes, and with an overall cumulative impact of electoral bias to large, established political parties. Typically, these parties through their elected membership create the election laws. As long as election law is tied to an inherent conflict of interest (parties and their elected members creating the laws and rules of the elections they participate in), then the FDA believes a true people-based democracy cannot exist. Instead democracy gets hijacked by special interests through political status quo and predetermined election competition. In a special interest-based democracy, elected officials act as the front persons and the illusory basis of a people-based democracy. 

One of the best ways to gauge the legitimacy of a democracy is how much power the people have over elected officials, whether through recall, referendum, NGOs with the same political rights as parties (like in Bolivia), and direct policy and legislative say through direct democracy and citizen committees and organizations. Again, the existence of such policies and their impacts may be illusory because, for instance, the thresholds are so high for recall that this mechanism is rendered impractical and thereby useless. For example, a government which allows recall of elected officials requires a 40 percent or more signed petition of the electorate to activate a recall vote, or allows citizen-initiated referendums subject to at least a 25 percent signed petition of the electorate and approval of the government. If there is minimal public political power over elected officials like in Canada and the United States at the federal levels of government, then the FDA believes this deficiency suggests a weak democracy and maybe a non-democracy.

References

FDA Global Electoral Fairness Report on the United States. (2013). Revised. Foundation for Democratic Advancement. Retrieved from democracychange.org

FDA Global Electoral Fairness Report on Canada. (2013) Foundation for Democratic Advancement. Retrieved from democraychange.org







Mr. Stephen Garvey Executive Director Foundation for Democratic Advancement

Edward Snowden--U.S. Headed for Tyranny or Already in an Early Stage of Tyranny?

The recent release of a 41-slide PowerPoint by Edward Snowden, an intelligence contractor for the National Security Agency who has since been fired, shows that the U.S. federal government has not only been snooping on personal communications of foreigners (97 billion pieces of communications worldwide for just March 2013 according to the Guardian), but snooping on the personal communications of American citizens as well including 3 billion pieces of communications in March 2013. Further, the U.S. government has been storing this information, and its capacity to store and snoop are increasing every year. To make this worse, the Obama Administration has been in denial about its worldwide and domestic invasion of privacy, and U.S. politicians and social media companies are all taking cover and trying to blame someone else.

Invasion of privacy whether on this large scale or on a smaller scale amounts to an infringement of basic freedoms, because if you know that big brother is watching you, you may not say things you normally would, and thereby your freedom is reduced.

The danger of this large scale invasion of privacy is that foreigners and domestic citizens may be targeted for their political beliefs, and overtime people can be controlled by the authorities knowing what people think and what they do not think. In addition, information on citizens can be manipulated and taken out of context in order to control them and deny them their basic freedoms. 

Edward Snowden says that "what the [(U.S.) National Security Agency] is doing" is "an existential threat to democracy."

Existentialism refers to individual free will and individual responsibility. So a government which reduces privacy and thereby freedom, would reduce individual free will and responsibility as well. A people-based democracy (as opposed to pseudo democracies) is based on the idea that "government is by the people, for the people, and of the people." Or the people (as opposed to anyone else including elected officials) are the sovereign authority over political affairs. Therefore, the secretive and domestic NSA surveillance is a threat to the essence of democracy, the people (or existential threat).

Edward Snowden says that "the [U.S.] government has granted itself power it is not entitled to. There is no public oversight. The result is people like myself have the latitude to go further than they are allowed to." In other words, the U.S. government has breached a people-based democracy, by turning on the people itself via large scale surveillance, and the potential for targeting of innocent citizens and suppressing freedom of speech and assembly.

Edward Snowden goes on to say that "I don't want to live in a world where there is no privacy and therefore no room for intellectual exploration and creativity." Again Snowden refers to implications of large scale invasion of privacy on individuals freedoms. "My greatest fear from these disclosures", he says, "is that nothing will change... and it will lead to "turnkey tyranny".

Turnkey means a jailer, and tyranny means authoritarian rule based on injustice, arbitrariness, and cruelty. Turnkey tyranny refers to authoritarianism which utilizes imprisonment to control and oppress.

Snowden leak took the form of a 41-slide PowerPoint which he sent to the Guardian and Washington Post. Only 5 of those slides were published by those newspapers, which begs the questions as to why they did not publish all of the slides, and are these newspapers providing cover for the U.S. government?

The five slides which were published are as follows (the FDA cannot guarantee that they were not altered prior to being published):

The Snowden slide #1 shows the major surveillance operating system used by the National Security Agency (NSA): PRISM/US-984XN

This Snowden slide #2 shows the U.S. social media corporations involved in the NSA surveillance, and the types of communications targeted.

The Snowden slide #3 shows the international scope of the NSA surveillance.

The Snowden slide #4 shows the growth of the NSA surveillance through U.S. social media companies.

The Snowden slide #5 shows the two basic surveillance methods: direct collection from U.S. social media companies and indirect collection through the transfer of communications on fiber cables and infrastructure.

Mr. Stephen Garvey, Executive Director Foundation for Democratic Advancement

FDA Talking Points Series: Legislative Neutrality

The U.S. Congress and Senate determine federal legislation. The President has the power to veto Congressional bills. However, two-thirds of the House of Representatives and Senate can block a presidential veto. Currently, the U.S. House of Representatives and Senate are dominated by Republicans and Democrats. These legislative bodies determine U.S. federal election law despite the obvious bi-partisan conflict of interest. As of the 112th U.S. Congress, 98% of the Senate seats and 100% of the House of Representative seats are comprised of Republicans and Democrats.

The Foundation for Democratic Advancement (FDA) takes the position that legislative neutrality is essential to a well-functioning and legitimate democracy. Legislative neutrality means that no political candidate or party is favoured by legislation which pertains directly or indirectly to all registered candidates and parties. Legislative bias is counter to the notion that the people are the sovereign political authority by increasing via legislation the influence of select minority groups (such as certain registered political parties) and decreasing the voice of the people. Democracy thrives in the most competitive electoral environment because people are given the most diverse and comprehensive choice. A biased electoral environment undermines the electoral competitiveness, and thereby election outcomes.

The legislative examples below derive from the FDA's most recent electoral fairness audit findings and measurements.

Examples of Legislative Neutrality

VENEZUELA

In Venezuela during the national election period, there are no restrictions on the freedom of the media, within the bounds of providing complete and balanced election coverage and not disseminating its own election propaganda. These restrictions ensure that private media companies are not imbalanced and narrow in their election coverage, and thereby do not favour some registered candidates and parties over other candidates and parties. The Venezuela media legislation is neutral because it applies to all registered parties and candidates, and it does not stop registered candidates and parties from informing freely the public of their platforms. The Venezuelan standard of complete and balanced coverage applies to public media as well.

Venezuelan political parties connected to private and/or public media are unable to take advantage of their media connections, barring illegal acts.

In Venezuela, unlike in Canada and the United States, the Venezuelan people have the opportunity to submit and repeal national legislation via referendum. In addition, the Venezuelan people have opportunity to recall any elected official including the Venezuelan president. Therefore, unlike in Canada or the United States, the Venezuelan people have sovereign authority over national legislation including election law.

Legislative Research

Public and private media election coverage will be complete and balanced without distorting the reality of the campaign. The media must observe "rigorous" balance in terms of space and time devoted to information on candidates and parties (Election Law, Article 81)

The National Electoral Council may finance in part or in full the diffusion of electoral propaganda in the media of radio, television, or print in accordance with regulations including ensuring complete and balanced coverage (Election Law, Article 78).

Each candidate is limited to a half page print ad in national newspapers per day, and broadcast ads are limited to 3 minutes per day (National Electoral Council Investigates Campaigns, 2012). Radio ads are limited to 4 minutes per day (Walser, 2012).

The state disallows public and private media from making their own election propaganda aimed at encouraging or persuading the electorate to vote for a particular candidate or party or against a particular candidate or party (Election Law, Article 79).

Publications, radio stations, television stations and other official media may not be used by any political party for their propaganda (Election Law, Article 35).

The state does not view candidates and leaders of political organizations, and any political group or organization participation on talk shows, news radio or television or in social media printed, digital, or other mass media as electioneering communication (During the Election Campaign Propaganda, 2012).

The Venezuelan government has four main independent branches of government: National Executive, National Assembly, Judiciary, and Citizen Power (represented by an ombudsmen office). The National Executive lead by the President and Vice-President is in charge of running the country; the National Assembly is the authority of national legislation; the judiciary led by the Supreme Court is authority on the Constitution and enforcing law, and the Ombudsman Office is in charge of protecting the people’s interests and rights (Bolivarian Republic of Venezuela Constitution, Articles 72-74, 225-283, 347-350).

Venezuelan people have the power to submit referendum bills to the National Assembly if the people in favor of the bill represent at least twenty-five percent of the electors registered. Treaties, conventions or agreements that could compromise national sovereignty or transfer power to supranational bodies, may be submitted to a referendum on the initiative of the President of the Republic in Council of Ministers, by the vote of two-thirds or the members of the Assembly, or fifteen percent of the voters registered and entered in the civil and voter registration (Bolivarian Republic of Venezuela Constitution, Article 73).

Venezuelan people have to power to submit referendum bills to wholly or partially repeal existing laws if the people in favor of the referendum have support from at least 10 percent of the registered electors (Bolivarian Republic of Venezuela Constitution, Article 74).

Examples of Legislative Bias

UNITED STATES

In the United States at the federal level of government, during the campaign period there are no regulations of media election coverage. Unlike Venezuela, the U.S. lack of media regulation favours registered candidates and parties which are connected to private media, and the regulation deficiency may create an unequal playing field in terms of candidates and parties ability and means to inform the public.

The source of the U.S. legislative bias is an electoral process which favours major parties over all other parties, and the fact that the U.S. Congress and Executive, made up members from the two major parties, determine the federal election laws. In addition, the U.S. President appoints the Supreme Court justices who determine the constitutionality of U.S. laws. These bi-partisan processes are a conflict of interest on two counts: the determination laws and rules of elections and appointment of the justices who determine the constitutionality of these laws and rules, by the members of two parties in the elections. These processes are a default bias to the major parties, Republicans and Democrats.

Legislative Research

Any cost incurred in a news story, commentary, or editorial by media (broadcaster, press, web site, magazine, or other periodical) is not a political contribution if the media organization is not owned or controlled by any political party, political committee, or candidates (Code of Federal Regulations, Section 100.29).

There is no legal requirement for equal opportunity for a newscast, interview, documentary (if the appearance of a candidate is incidental to the documentary's subject matter), or news event, including debates, political conventions and related incidental activities. Media has an obligation to present news in the "public interest" and "afford reasonable opportunity for the discussion of conflicting views of issues of public importance" (Code of Federal Regulations, Section 100.29).

Any corporation or labor organization may donate funds to support a debate conducted by a nonprofit organization. The debate must not support or oppose any candidate or party, be sponsored by a broadcaster, newspaper, magazine, other circulation periodical publication, and include at least two candidates who meet face to face, does not promote one candidate over the other. In a primary election, organizations staging a debate may restrict candidates to those seeking nomination of one party, and in a general election may not use nomination of a particular party as the sole criterion for debate participants. Staging organizations must use preestablished objective criteria to determine participants (Code of Federal Regulations, Section 114.4(f)).

Electioneering communications are limited to paid programming and only apply to the 60 day period prior to a general election or the 30 day period before a primary election for federal office, including elections in which a candidate is unopposed (Code of Federal Regulations, Section 100.29).

Noncommercial educational broadcasting stations may support or oppose any candidate for office. This broadcast restriction does not apply to editorializing in the public interest (U.S. Code, Title 47: Telegraphs, Telephones, and Telegraphs, Section 399).

Media entities' online news content is not considered contributions or expenditures. The media exemptions apply to all bloggers and others who communicate on the internet unless the facility including website is owned or controlled by a political party, candidate or a political committee (Internet Communications and Activity, 2012).

The U.S. House of Representatives and Senate have legislative power; the President has the executive power of government; the judiciary has power cases involving the U.S. Constitution, laws, and treaties under its authority (U.S Constitution, 2012, Article I, Sections 1; Article II, Section 2; Article III, Section 2).

The President has the power to veto bills from the Congress and Senate, and the House of Representatives and Senate with two-thirds vote in each house have the power to overrule presidential vetoes (U.S. Constitution, 2012, Article I, Section 7, Clause 2).

Every bill must pass in the U.S House of Representatives and Senate to become law (U.S. Constitution, 2012, Article I, Section 7, Clause 2).


CANADA

In Canada at the federal level of government, public subsidies for political parties are determined based on a 2 percent and 5 percent popular support rules which favour large, established political parties over small and new parties. In addition, in Canada like the United States, there is minimal regulation of media during election periods, and therefore parties connected private and public media have a campaign advantage over parties less connected to media.

The source of Canada's legislative bias is the fact that the majority of the Members of Parliament determine Canada's federal legislation including election law. In addition, the Prime Minister appoints the federal justices who determine the constitutionality of federal legislation. These legislative processes are a conflict of interest and source of bias because the majority of Parliamentarians determine the laws and rules of the elections they participate in.

For Canada to move forward with legislative neutrality, these inherent legislative process biases need to be replaced with neutral processes such as a citizen committee representing a cross-section of Canadian society and all regions of the country determine the election laws. Alternatively, the elections laws could be determined through online direct democracy, in which the people determine the elections within the bounds of electoral fairness and neutrality for all registered political parties which are not frivolous and have at least 0.1 percent popular support. As it stands, Canada's electoral process is undermined by some parties deciding the laws and rules of this process. For more details findings and measurements on Canada's democracy, see the 2013 FDA Electoral Fairness Report on Canada.

Legislative Research

The Chief Electoral Officer determines for each quarter an allowance payable to a registered party whose candidates received either 2 percent of the popular vote or 5 percent of the valid votes cast in the electoral districts of the candidates endorsed by the party in for the most recent general election (Elections Act, 435.01(1)(a)-(b)).

The quarterly allowance is the multiplication of the valid votes cast in the most recent general election by $0.3825 for 2012; $0.255 for 2013; and $0.1275 for 2014. All quarters begin on April 1^st (Elections Act, 435.01(2)(a)-(c)).

The Conservative government revised the federal budget to phase out the public subsidies for federal political parties beginning April 1^st 2012 (Smith, J, July 4, 2012).

The annual subsidy was lowered from $2.04 in 2011 to $1.53 per vote in 2012 and will be further reduced each year on April 1^st until it is eliminated in 2015 (Smith, J, July 4 2012).

If a registered party receives 2 percent of the votes cast in the election or 5 percent of the number votes cast in the electoral district in which the part endorsed a candidate, then 50 percent of the parties’ electoral expenses are refunded (Elections Act, Article 435 (1)).

The Canadian Radio-television and Telecommunications Commission (CRTC) Act presents the regulations regarding political advertising and broadcasting during an election period. Broadcasters are required to cover Canadian elections and must give all candidates, parties and issues "equitable" coverage during the campaign period. Equitable does not imply equal, broadcasters must simply take "reasonable" steps to present the views and positions of all parties (Public Notice CRTC, 1988).

During the election period, broadcasters are responsible for informing the public about the central issues regarding the election, and should present the positions and platforms of candidates and parties relating to those issues (Public Notice CRTC, 1988).

These guidelines pertain to television broadcasters, radio stations, and specialty television services licensed by the CRTC. They do not apply to pay television services or internet communications; therefore, they are not obliged to provide time to political parties, but may do so (Broadcasting Guidelines, 2011).

Broadcasters are not required to include all parties or candidates in debate programs during the election campaign (Public Notice CRTC, 1988).

The Legislative branch is both the Senate and the House of Commons. This branch makes laws coming under the purview of the Federal government (Constitution Act, Section 91, 1867).

To become law a bill must be approved by both the Senate and the House of Commons, and then receive Royal Assent from the Governor General (Legislative Process, 2010).

The Prime Minister appoints the Supreme Court justices and other federal justices (Supreme Court Act, Section 4(2)).

The FDA auditors did not find legislation to mandate broad and balanced election coverage via a Code of Practice/Conduct for the media. Although many private press organizations and newspapers follow a Code of Practice and/or guidelines for conduct, none of these guidelines includes requirements for broad and balanced election coverage (2013 FDA Global Electoral Fairness Report on Canada, 2013, Audit Findings on Code of Practice/Conduct).


References

Bolivarian Republic of Venezuela Constitution. (2012). National Electoral Council. Retrieved from http://www.cne.gov.ve/web/normativa_electoral/constitucion/indice.php

Broadcasting Guidelines. (2011, March 28). May 2, 2011 Federal General Election. The Broadcasting Arbitrator. Retrieved from Elections Canada http://www.elections.ca/abo/bra/bro/guidelines2011.pdf

Code of Federal Regulations. (2009, January 1). Federal Registry. Retrieved from http://www.fec.gov/law/cfr/cfr_2009.pdf

Constitution Act. (1867, March 29). Retrieved from the Department of Justice http://laws-lois.justice.gc.ca/eng/Const/page-1.html

During the Election Campaign Propaganda. (2012). General Provisions. Chapter 1. Retrieved from the Venezuelan Embassy in Ottawa, Canada in pdf format.

Election Law. (2012). National Electoral Council. 2012. Retrieved from http://www.cne.gov.ve/web/normativa_electoral/ley_organica_procesos_electorales/indice.php

Elections Act. (2000, May 31). Elections Canada. Retrieved from http://www.elections.ca/content.aspx?section=res&dir=loi/fel/cea&document=part00&lang=e

FDA Global Electoral Fairness Report on the United States. (2013). Revised. Foundation for Democratic Advancement. Retrieved from http://democracychange.org/2013/04/2012-fda-electoral-fairness-report-on-the-united-states/

FDA Global Electoral Fairness Report on Canada. (2013) Foundation for Democratic Advancement. Retrieved from http://democracychange.org/2013/05/2013-fda-global-electoral-fairness-report-on-canada/

FDA Global Electoral Fairness Report on Venezuela. (2013). Revised. Foundation for Democratic Advancement Retrieved from http://democracychange.org/2013/04/2012-fda-global-electoral-fairness-report-on-venezuela/

Garvey, S. (2013). FDA Talking Points Series: 0.5 Percent Rule. Foundation for Democratic Advancement. Retrieved from http://foundationfordemocraticadvancement.blogspot.ca/2013/04/fda-talking-points-series-05-percent.html

Internet Communications and Activity. (2012). Federal Election Commission. Retrieved from http://www.fec.gov/pages/brochures/internetcomm.shtml

Legislative Process. (2010, February). Canadian Parliament. Retrieved from http://www.parl.gc.ca/About/House/compendium/web-content/c_g_legislativeprocess-e.htm

Longley v. Canada (Attorney General). (2007, December 6) Ontario Court of Appeal 852 (CanLII). Retrieved from http://www.canlii.ca/en/on/onca/doc/2007/2007onca852/2007onca852.html

National Electoral Council Investigates Campaigns. (2012). Embassy of the Bolivarian Republic of Venezuela (Washington, D.C. U.S.A.). Retrieved from http://venezuela-us.org/2012/08/31/national-electoral-council-investigates-campaigns/

Public Notice CRTC. (1988, September 2). CRTC. Retrieved from http://www.crtc.gc.ca/eng/archive/1988/PB88-142.HTM

Smith, J. (2012, July 4, 2012). Parties Lose 186 Million In Per-Vote Allowance As Subsidy Dropped. Retrieved from http://www.thestar.com/news/canada/2012/07/04/parties_lose_186_million_in_pervote_allowance_as_subsidy_dropped_25_per_cent.html

Supreme Court Act. (1985). Retrieved from http://laws-lois.justice.gc.ca/eng/acts/S-26/page-1.html

U.S. Code. (2012). Cornell University Law School. Retrieved from http://www.law.cornell.edu/uscode/text

U.S. Constitution. (2012). Cornell University Law School. Retrieved from http://www.law.cornell.edu/constitution/

Walser, R. (2012). The Chávez Plan to Steal Venezuela's Presidential Election: What Obama Should Do. September 19, 2012. The Heritage Foundation.







Mr. Stephen Garvey, Executive Director Foundation for Democratic Advancement

Canadian Democracy and the Way Forward

The 2011 Canadian Election robocall fraud, in which the Conservative Party of Canada was evolved in an "elaborate effort to conceal the identity of those accessing the database and arranging for the [robo]calls to be made" (2013 FC 525, p. 88), and the recent Duffy Expense Scandal in which a member or members of the Conservative Party attempted to cover-up Duffy's wrong-doing begs the questions, what else is the Conservative Party of Canada and current Canadian federal government covering up, and are these ethical shortcomings isolated to the Conservatives or symptomatic of deeper issues in the Canadian political system? The FDA podcast on Canadian democracy below suggest that Canadian politics is failing.

FDA Podcast: Excerpt from FDA Webinar on Canadian Democracy and the Way Forward

Mr. Stephen Garvey, Executive Director of the Foundation for Democratic Advancement, hosts the May 30, 2013 FDA Webinar on Canadian Democracy and the Way Forward. The Webinar is based on the 2013 FDA Electoral Fairness Report on the Canadian Federal Electoral System, in which Canada received an unsatisfactory overall score of 64.49 percent. The podcast contains an excerpt from the FDA Webinar, in which a participant with longtime Canadian political experience shares her thoughts on the political conundrum facing Canada, and the way forward. The participant believes that the Canadian political establishment is de-politicizing Canadians and that the Canadian political process is archaic and has lost all purpose and meaning. She proposes that the only way forward for Canadian democracy is for Canadians to politicize not just at elections but between elections through activating and supporting grassroots politics and social organizations including independent political candidates who are deeply invested in their communities and who have the better societal solutions than the typical politician. According to the excerpt, the predicament of Canadian politics has become so dire, the big party politicians themselves have lost any meaningful say due to the global economy and its influences, and the tight grip of large, established parties on their elected members. This podcast may be a wake up call to Canadians to activate against an irrational and destructive political system. For non-mainstream, insightful, and provocative discussion from people working in the field of international politics, listen in or download the FDA podcasts.

The FDA next webinar "Media Freedom and Democracy" is on June 12, 2013.

FDA Webinar (June 12): Media Freedom and Democracy

FDA RSS Feed

FDA Podcasts on Itunes

2013 FDA Electoral Fairness Report on Canada

Media Freedom and Democracy

FDA Webinar (June 12, 2013)

Mr. Stephen Garvey, Executive Director of the Foundation for Democratic Advancement (FDA), will present the FDA's findings on media freedom and democracy. Mr. Garvey will focus on democratic principle and theory, and then show media election processes from the United States, Canada, Ecuador, and Venezuela. For more details on the FDA's position on media freedom please visit:

Media Election Coverage

Limits of Press Freedom

Mr. Garvey will discuss the impact of excessive media freedom on democracy, and how the media is often times used to maintain the political status quo. In addition, Mr. Garvey will discuss how to overcome media process shortcomings in  democracies through for example media code of conduct during election periods and media ownership concentration laws. 

Mr. Garvey's live presentation will be 15 minutes followed by question and answer, polls, and discussion. The webinar is limited to the first 100 persons to register.

The Foundation for Democratic Advancement (FDA) is an international independent, non-partisan democracy organization. The FDA’s mission is

to measure, study, and communicate the impact of government processes on a free and democratic society.

Overall, the FDA works

1. to ensure that people become more knowledgeable about the outcomes of government processes and can then make decisions that are more informed;
2. to get people involved in monitoring government processes at all levels of government and in providing sound, practical, and effective suggestions. (For more information on the FDA)

FDA Webinar: Media Freedom and Democracy

FDA Talking Points Series: 0.1 Percent Rule

This 2007 Ontario Superior Court decision (Longley v. Canada) established the Canadian legal basis for some Canadian federal political parties to receive public subsidies while other federal political parties not receive them. The intent of the decision was to prevent frivolous political parties from receiving public subsidies, and yet the decision ensures that frivolous and small and new parties do not receive public subsidies.

The Foundation for Democratic Advancement (FDA) takes the position that 0.1 percent popular support is a reasonable and fair threshold to distinguish unpopular parties from popular parties. The FDA believes that electoral systems require some form of barrier of entry to minimize frivolous parties from undermining the integrity of electoral systems. However, a delicate balance needs to be obtained between supporting parties and not supporting them.

The FDA adopts a two-tiered system:

1. Parties with at least 0.5 percent popular support.

2. Parties with at least 0.1 percent popular support.

Parties with at least 0.5 percent popular support would receive all the benefits of registered party status. In addition, public subsidies would be distributed equally to these parties, and the media would be required during campaign periods to provide broad and balanced coverage of these parties.

Parties with at least 0.1 percent popular support would receive public subsidies at a lower level than parties with at least 0.5 percent popular support. Also, these 0.1 percent to 4.99 percent parties would have equal access to and cost of campaign advertisement with all other parties. Frivolous parties would be disallowed from receiving any public subsidies on grounds that their existence is not predicated on every forming any part of government. Their only purpose is to mock the system and/or parties in it or to pursue self-interest agendas unrelated to politics.

In Longley v. Canada, 2007, Ontario Court of Appeal decision, Judge Blair agreed with a Canadian federal public subsidy threshold of 2 percent national electorate support or 5 percent support from all candidates of a party from relevant constituencies. This threshold impacts negatively small and new parties which are not frivolous parties by denying them public subsidies which larger parties receive. Judge Blair ignores this issue by leaving it up to the elected members of Parliament to determine the appropriate threshold. In the FDA's opinion, this is a gross error of Judge Blair's decision, and touches on the fundamental contradiction and limitation in the Canadian federal democracy and most other western democracies: the majority of elected officials determine the election laws and appoint the federal justices who determine the constitutionality of these laws.

Excerpts from the Longley Decision 2007

"[23] The history in France is of some interest. Major amendments to France’s public funding regime for political parties occurred in 1990. The 1990 regime called for a threshold requiring a party to run at least 75 candidates (out of 577 constituencies) and obtain at least 5% of the vote in each. Before the provisions became operational, however, France’s Constitutional Council ruled the latter threshold unconstitutional. Public funding became available with no vote-based threshold in place, and from 1990 to 2003 the number of registered political parties increased from 29 in 1990 to 244 in 2003. The number peaked at 316 in 1999. There was some concern that groups were being formed solely for the purpose of accessing public funding. Interestingly, the Natural Law Party was amongst the newly registered parties. Thresholds were re-introduced in 2003 to take effect in 2007. It requires parties to run a minimum of 50 candidates and to obtain at least 1% of the vote in the constituencies in which candidates are run. France’s Constitutional Council apparently took a different view of the new thresholds, raising no concern about them in a decision released in 2003."

Interestingly, Judge Blair references France as an important example of the need for thresholds for the determination of which parties receive public subsidies. In France, the threshold is 1 percent of the national vote and a party must endorse at least 50 candidates out of 577 constituencies. Judge Blair does not mention that new parties in France receive public subsidies as long as within a 12 month period they received donations from 10,000 citizens with a minimum of 500 elected representatives, and donations totaling €150,000 Euros. (France has about 40,000 elected representatives.)

Further, as stated in the Longley decision, "the objective of the 2 percent and 5 percent rule is to safeguard against the misuse of public funds, thus preserving the integrity of the process and its public financing mechanism." Judge Blair states that the Canadian legislature is not required to adopt the least impairing option to deal with for example the misuse of electoral finance:

"As the second step in the proportionality analysis, the government must show that the measures at issue impair the right of free expression as little as reasonably possible in order to achieve the legislative objective. The impairment must be ‘minimal’, that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement: see Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123, at pp. 1196-97; R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, at pp. 1340-41; Ramsden v. Peterborough (City), 1993 CanLII 60 (SCC), [1993] 2 S.C.R. 1084, at pp. 1105-06. On the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail. [Emphasis added.]"

This point is the crux of the Longley decision. The impact of the 2 percent and 5 percent rule on small and new parties is disregarded because the Canadian legislature is not required to have the least impairing option. So instead of legislating that frivolous parties cannot receive public funds, the Canadian legislature ensures that frivilous parties and small and new parties cannot receive public funds. Judge Blair ignores the significant impact of this decision on electoral fairness.

Examples of Thresholds for Public Subsidies

UNITED STATES

There are no public subsidies for congressional candidates and privately funded presidential candidates. The only public funding available is for publicly funded presidential candidates. This funding is based on three ways:

1. The first $250 contribution to a party is matched with a public subsidy. To receive this matching payment, a presidential candidates must raise more than $5,000 in each of 20 different states.

2. General election grants are available to presidential candidates of major parties who win their parties' nomination. Third-party candidates can receive a percentage of this grant if they have at least 5 percent of the popular vote.

3. Party convention grants are available to national parties for their national Presidential nomination convention. Third-party candidates can receive a percentage of this grant if they have at least 5 percent of the popular vote.

The U.S. Presidential Election Fund favours major parties, and it has a threshold of at least 5 percent national support for third-parties. The matching fund is linked to a threshold of raising funds in different states, rather than a popular support percentage. In addition, new parties receive public funds based on popular vote in comparison to the popular vote for major parties. If the popular vote for major parties is 96 percent, and the popular vote for a new party is 0.1 percent, then this new party will receive 0.1 percent of the funds of the major parties. If the major parties received $100,000,000 in public funds, then this new party would receive $100,000 in public funds. If the major parties received $0.0 in public funds, then this new party would receive $0.0 in public funds.

Legislative Research

There are no public subsidies for congressional candidates and committees (FEC Campaign Guide: Congressional Candidates and Committees, 2011).

Funds in the Presidential Election Campaign Fund are divided up in three ways:

1)Primary matching payments are based on the government matching individual contributions to a candidate, and only the first $250 of a contribution is matchable. To be eligible for matching, a candidate needs to raise more than $5,000 in each of 20 different states.

2) General election grants are for Republican and Democratic candidates who win their parties' nomination. The candidates are eligible to receive $20 million, adjusted for cost-living-adjustment to cover campaign expenses. In 2008, candidates could receive $84.1 million. Third party candidates are eligible to receive a percentage of this grant if the candidates receive at least 5 percent of the popular vote. (The 2008 expenditure limit in 2008 was $88.45 million.)

3) Party convention grants are for major political parties for their national Presidential nominating convention. The parties are eligible to receive $4 million, adjusted for inflation. In 2008, the major parties received $16.82 million. Third parties are eligible for the grant if they received at least 5 percent of vote in the previous Presidential election. The Federal Election Commission defines a majority party as 25% or more of the total popular votes in the previous election; minority party as between 5% or more and less than 25% of the total popular vote in the previous election; new party as a party which did not participate in the previous election (Presidential Election Fund, 2012).


CANADA

Canada at the federal level of government, as mentioned, has a current law that says parties with at least 2 percent of national electoral support or parties with candidates with at least 5 percent electoral support from their constituencies, are eligible to receive public subsidies. The amount of subsidies is determined based on percentage of popular support, and in another subsidy it is based on the amount of campaign expenditure in elections. The intent of these thresholds is to prevent frivolous parties from receiving public subsidies, and reward popular parties with subsidies. However, the thresholds deprive small and new parties of public subsidies, and reward the largest parties disproportionately more than other large parties. Overall, the Canadian thresholds create unfair and unequal electoral conditions for parties.

Legislative Research 

The Chief Electoral Officer determines for each quarter an allowance payable to a registered party whose candidates received either 2 percent of the popular vote or 5 percent of the valid votes cast in the electoral districts of the candidates endorsed by the party in for the most recent general election (Elections Act, 435.01(1)(a)-(b)).

The quarterly allowance is the multiplication of the valid votes cast in the most recent general election by $0.3825 for 2012; $0.255 for 2013; and $0.1275 for 2014. All quarters begin on April 1^st (Elections Act, 435.01(2)(a)-(c)).

The Conservative government revised the federal budget to phase out the public subsidies for federal political parties beginning April 1^st 2012 (Smith, J, July 4, 2012).

The annual subsidy was lowered from $2.04 in 2011 to $1.53 per vote in 2012 and will be further reduced each year on April 1^st until it is eliminated in 2015 (Smith, J, July 4 2012).

If a registered party receives 2 percent of the votes cast in the election or 5 percent of the number votes cast in the electoral district in which the part endorsed a candidate, then 50 percent of the parties’ electoral expenses are refunded (Elections Canada, Article 435 (1)).


VENEZUELA

Venezuela has no direct public subsidies for political parties. Therefore, every party in Venezuela receives an equal amount of subsidies. In addition, the National Electoral Council may finance the diffusion of electoral propaganda for the sole purpose of ensuring complete and balanced election coverage.

Legislative Research

The National Electoral Council may finance in part or in full the diffusion of electoral propaganda in the media of radio, television, or print in accordance with regulations including ensuring complete and balanced coverage (Election Law, Article 78).

Each candidate is limited to a half page print ad in national newspapers per day, and broadcast ads are limited to 3 minutes per day (National Electoral Council Investigates Campaigns, 2012). Radio ads are limited to 4 minutes per day (Walser, 2012).

Public and private media election coverage will be complete and balanced without distorting the reality of the campaign. The media must observe "rigorous" balance in terms of space and time devoted to information on candidates and parties (Election Law, Article 81).

The state disallows public and private media from making their own election propaganda aimed at encouraging or persuading the electorate to vote for a particular candidate or party or against a particular candidate or party (Election Law, Article 79).


References

Elections Act. (2000, May 31). Elections Canada. Retrieved from http://www.elections.ca/content.aspx?section=res&dir=loi/fel/cea&document=part00&lang=e

Election Law. (2012). National Electoral Council. 2012. Retrieved from http://www.cne.gov.ve/web/normativa_electoral/ley_organica_procesos_electorales/indice.php

Garvey, S. (2013). FDA Talking Points Series: 0.5 Percent Rule. Foundation for Democratic Advancement. Retrieved from http://foundationfordemocraticadvancement.blogspot.ca/2013/04/fda-talking-points-series-05-percent.html

Longley v. Canada (Attorney General). (2007, December 6) Ontario Court of Appeal 852 (CanLII). Retrieved from http://www.canlii.ca/en/on/onca/doc/2007/2007onca852/2007onca852.html

Presidential Election Campaign Fund. (2012). Federal Election Commission. Retrieved from http://www.fec.gov/press/bkgnd/fund.shtml

Walser, R. (2012). The Chávez Plan to Steal Venezuela's Presidential Election: What Obama Should Do. September 19, 2012. The Heritage Foundation.
 

 

 

Mr. Stephen Garvey, Executive Director Foundation for Democratic Advancement 

2013 FDA Global Electoral Fairness Report on Canada

A photo of the Canadian Parliament buildings in Ottawa, Ontario, Canada. Canadian federal laws are determined in this building. Under current 2013 Canadian electoral laws in particular the first-past-the-post system, a minority party can attain majority control of the Parliament, and thereby have control over the passage of federal laws.

Executive Summary of the 2013 FDA Global Electoral Fairness Report on Canada

The Foundation for Democratic Advancement (FDA) concludes that the Canadian federal electoral system is mediocre as determined by the overall unsatisfactory passing audit score of 64.49 percent (out of 100 percent). FDA auditors measured

1. Failing score for legislation pertaining to media election coverage (47.35 percent).
2. Unsatisfactory score for legislation pertaining to candidates and parties (58.93 percent). 
3. Satisfactory score for legislation pertaining to voters (73.52 percent). 
4. Very satisfactory score for legislation pertaining to electoral finance (78.15 percent).

In its analysis, the FDA factored in 32 independent variables, matrix examination, and financial analysis to inform calculations and conclusions. Based on its measurements, the FDA believes that Canadian federal election outcomes are not truly reflective of the voice of Canadians from electoral constituencies. Although there is sound legislation relating to voters and electoral finance, various provisions concerning candidates, parties, and media function to favour certain large and established parties over new and small parties and even other large and established parties. The FDA identified several elements in the Canadian electoral system that, when combined, undermine significantly electoral competition and thereby election outcomes. The FDA believes that the degree of electoral competition is an indication of the health of a democracy, and competition whether in the marketplace or elections produces the better societal outcome. Therefore, the FDA recommends a number of reforms to the Canadian electoral system that would eliminate biased electoral legislation and uncompetitive electoral processes.

"If liberty and equality, as is thought by some, are chiefly to be found in democracy, they will be best attained when all persons alike share in government to the utmost."
-Aristotle 

2013 FDA Global Electoral Fairness Report on Canada

May 30, 2013 FDA Webinar on 2013 Electoral Fairness Report on Canada. To register click on link

Stakeholder Advisory

Report Snapshot for Media

Eminent Domain in the U.S.A.--Unreasonable Impairment of Individual Freedoms?

An example of eminent domain law in the United States, in which a gas company is allowed to construct a pipeline through agriculture lands in Pennsylvania on grounds of a larger public good or economic development. (Photo source: pennlive.com)

Another example of eminent domain law in Wenling, Zhejiang province, China, in which the large public good or eminent domain in the context of road building cannot be used to displace persons.  In the United States, schools, roads, courthouses, condos, and retail outlet malls are all considered a larger public good, and thereby fall within eminent domain law (Bryant, C, "How Eminent Domain Works". Retrieved from http://www.howstuffworks.com/eminent-domain.htm). (Photo source: ninetymilesfromtyranny.blogspot,com)

Under “eminent domain” law, the U.S. federal government can seize private property in the name of the larger public good such as providing U.S. energy, housing (including educational), and road infrastructure needs.

What is the impact of the eminent domain process on a free and democracy society? How is the larger public good defined and by who? How are special interests prevented from taking advantage of eminent domain law?

The U.S. courts determine what is deemed a larger public good. In the Kelo case for example, the U.S. Supreme Court determined that economic development is a larger public good. So pipeline development would be deemed a larger public good, and that oil and gas companies can use U.S. private land for economic development (regardless of the objections of private land owners). The issue of whether or not oil development is in the larger public good considering the global warming phenomenon is not considered with any significance. As long as special interests can establish the larger public good in the context of their developments, there is nothing stopping them from taking advantage of eminent domain law.

Eminent domain law restricts individuals freedom including property rights, and raises the question and issue as to what is a larger public good. If definition and scope of a "larger public good" favours special interests, then the eminent domain law will be detrimental to a free and democratic society. For example, a case can be made that oil and gas consumption and pipeline development due to the environmental and human impacts is overall harmful to the larger public good. Yet this viewpoint is not supported by the U.S. Supreme Court.

Research Findings

U.S. Constitution

No person… shall [have] private property taken for public use, without just compensation (U.S. Constitution, Amendment V).

Under the "just compensation" clause of the 5^th Amendment the government has to pay fair market value to the property owner.

Case Law

The definition of fair market value is "the most probable price that a willing but unpressured buyer, fully knowledgeable of both the property's good and bad attributes, would pay" United States v. Miller, 317 U.S. 369, 1943; Cornell University Law School. Fifth Amendment: An Overview. Retrieved from: Fifth Amendment.

Generally, a legislature has a right to decide how public use is defined and the definition is contained in the relevant statute authorizing the taking. Courts are deferential to a legislature’s definition as long as the exercise of eminent domain is rationally related to a conceivable public purpose (Hawaii Housing Authority v. Midkiff , 327 U.S. 546, 1984).

The U.S. Supreme Court held in Kelo that taking private property for economic development satisfies the public use requirement of the 5^th Amendment even if it is a private company who ends up using the land. The Court stated economic development was a traditional government action that often benefited private actors (Kelo v. City of New London, 545 U.S. 469, 2005).

Article

Courts throughout the United States uphold public agency condemnations for private gain on a regular basis; for example, to allow the extension of railroads, pipelines, and utilities (Calkins Brubaker, L., 2013, March 7, "Texas Landowners Take On Keystone", Calgary Herald).

Example: Texas

A common carrier owns, operates, or manages a pipeline for the transportation of crude petroleum to or for the public and the pipeline constructed on, over, or under a public road or eminent domain property (Texas Natural Resources Code §111.002, 1991).

Common carriers have the right and power of eminent domain – a common carrier may enter and condemn the land, rights-of-way, easements, and property of any person or corporation in order to construct a pipeline (Texas Natural Resources Code §111.019, 1993).

Ms. Sarah Rapchuk, FDA researcher and lawyer

Mr.  Stephen Garvey, Executive Director, Foundation for Democratic Advancement

FDA Talking Points: Candidate and Party Campaign Advertisement

U.S. non-connected political committees (or Super PACs) like Americancrossroads organization (and its poster above) have significant opportunity to influence the American electorate through electoral advertisements. U.S. federal laws place no limits on contributions to and expenditures by Super PACs. Consequently, U.S. political parties indirectly connected to Super PACs have an electoral advantage over political parties less or not indirectly connected to Super PACs.

The Foundation for Democratic Advancement (FDA) takes the position that during the campaign period registered candidates and parties should have equal opportunity for campaign advertisement through legislated equal access to media and equal cost of advertisement. Campaign advertisement may take the form of advertisement in newspapers or on radio and television, and online components. In addition, the FDA takes the view that public subsidies for registered candidates and parties should be available equally for all candidates and parties which have proven electorate support of at least 0.5 percent. Finances are directly tied to campaign advertisement due to the cost of advertisement. The purpose of equal campaign advertisement and finance laws is to help ensure fundamentally that the electorate is fully informed of the candidates' and parties' platforms and backgrounds.

The FDA values electoral competition as the best election environment. The more level the playing field for political parties, the greater the competition, and the better the election outcome. Consequently, the more level the campaign advertisement between candidates and parties, the better the outcome for society. Any legislative bias to some candidates and parties over others would be deemed uncompetitive processes, and therefore a detriment to elections.

The opinion that electoral competition includes competition between parties in raising funds is contrary to the fundamental democratic goal of a fully informed electorate, and the electorate's decision on Election Day. Viz., what matters in elections is the electorate's decision based on full information. The ability of one party to influence more than another through for example more funds is inconsistent with that outcome.

Moreover, the opinion that the more popular candidates and parties should receive more public subsidies, for example, is contrary to a level playing field and the goal of a fully informed electorate. If a party is so popular, for instance, then that should be reflected on Election Day through electoral support. However, to give that party a campaign advantage because of past or current popular support in the form of subsidies is contrary to a level and fair playing field, and ultimately maximum electoral competition. In cases of an unequal playing field, the FDA advises to find out who allows the unequal playing field and who benefits?

Comparative Processes on Candidate and Party Advertisement

UNITED STATES

During the 60-day campaign period (for electioneering communications), candidates and parties have equal access and cost to electioneering communication in the broadcast media. In the press, paid advertisements must disclose the source and be of equal cost to all candidates and parties. However, there is legislated equal access provisions for candidates and parties to the press. There are no subsidies for electioneering communication.

Legislative Research 

The Federal Election Commission may revoke any broadcast station license or construction permit for willful and repeated failure to allow reasonable access or to permit purchase of reasonable amounts of time by a registered federal candidate or committee on behalf of his candidacy (Communications Act, Section 312(a)(7) and Code of Federal Regulations, Section 73.1944(a)).

Broadcasters shall make its facilities available to federal advertisers on the weekend before an election, if the broadcasters provided similar access to commercial advertisers during the relevant election period. Also, broadcasters shall not discriminate between candidates for weekend access (Code of Federal Regulations, Section 73. 1944(b)).

Electioneering communications are limited to paid programming and only apply to 60 days prior to a general election or 30 days before a primary election for federal office including elections in which a candidate is unopposed (Code of Federal Regulations, Section 100.29).

Expenditures of political committees which are otherwise reported to the Federal Election Commission are not considered electioneering communication. [This provision prevents double accounting of expenditures.] (Code of Federal Regulations, Sections 100.29; 104.20(b)).

Corporations and labor organizations are required to make electioneering communication within their restricted class and may not provide funds to any person for the purpose of electioneering communication (Code of Federal Regulations, Sections 114.2(b)(2)(iii); 114.14(a)).

Qualified nonprofit corporations may make electioneering communications. Communications in excess of $10,000 in a calendar year must be reported. Qualified nonprofit corporations cannot accept funds from corporations or labor organizations or make contributions to federal political committees (Code of Federal Regulations, Section 114.10).

Unincorporated, unregistered "527" tax-exempt organizations, individuals, and partnerships may make electioneering communication as long as funds are not from corporations and labor organizations, and can be satisfactorily subject to reasonable accounting procedures (Code of Federal Regulations, Section 114.14).

Federal political committees are required to be put a disclaimer on their public web sites and in emails sent in excess of 500 similar times (Code of Federal Regulations, Section 110.11). \

Corporations must provide commercial services equally to all federal candidates and political committees and for their usual and normal fees (Internet Communications and Activity, 2012).

Corporations and labor organizations may send political endorsement emails only to the designated audience within their restricted class. In addition, corporations and labor organizations may have endorsements and solicitations on their websites as long as the contents are only accessible by designated audience for their restricted class (Code of Federal Regulations, Section 114.3; Internet Communications and Activity, 2012).

Any corporation or labor organization may donate funds to support a debate conducted by a nonprofit organization. The debate must not support or oppose any candidate or party, be sponsored by a broadcaster, newspaper, magazine, other circulation periodical publication, and include at least two candidates who meet face to face, does not promote one candidate over the other. In a primary election, organizations staging a debate may restrict candidates to those seeking nomination of one party, and in a general election may not use nomination of a particular party as the sole criterion for debate participants. Staging organizations must use preestablished objective criteria to determine participants (Code of Federal Regulations, Section 114.4(f)).

Broadcast stations must provide equal airtime and equal opportunities to all registered federal candidates. The only exception to equal airtime and equal opportunities is during bona fide news programming, such as an appearance of a candidate on bona fide newscast, interview, documentary, or on the spot news event (including debates, political conventions and related incidental activities)(The Public and Broadcasting: How to Get the Most Service from Your Local Station, 2008; U.S. Code, Title 47, Section 315).

Broadcast political advertisements must display photographic or similar image of candidate and a statement identifying the candidate, the candidate's approval for the advertisement, and the candidate's authorized committee which paid for the broadcast (The Public and Broadcasting: How to Get the Most Service from Your Local Station, 2008; U.S. Code, Title 47, Section 315).

Radio political advertisements must include a personal statement from the candidate, which identifies the candidate and the office the candidate is seeking, and indicates that the candidate approved of the broadcast (The Public and Broadcasting: How to Get the Most Service from Your Local Station, 2008; U.S. Code, Title 47, Section 315).

Paid political statements through any broadcasting station, newspaper, magazine, outdoor advertising facility, mailing, or any other type of general public political advertising must clearly state which authorized political committee paid for communication or other persons, and who authorized the other persons such as a candidate or authorized political committee. If transmitted by television, the statements must include either an unobscured, full-screen views of the candidate or agent of the candidate making the statement, or in voice-over, or both, and shall also appear in a readable manner with a reasonable degree of color contrast between the background and the printed statement, for a period of at least 4 seconds. If the political statement is not authorized by a candidate or political committee, the communication must state the name and permanent street address, telephone number or World Wide Web address of the person who paid and that it is not authorized by a candidate or political committee (Code Federal Regulations, Section 441d).

No person shall sell space in a newspaper or magazine to a candidate or agent of a candidate for amount that exceeds charges for comparable spaces (Code Federal Regulations, Section 441d).

Analysis

Although the United States requires equal access to and cost of campaign advertisement, there is no required equal access to print media, and there are no public subsidies to create a level playing field of campaign advertisement. Therefore, the U.S. processes favour parties with the resources to advertise, and parties with access to print media. In addition, the United States allows unlimited contributions to non-connected political committees (Super PACs) and unlimited expenditures by these committees. These processes for Super PACs will favour parties which have the PACs' indirect support. Overall, the U.S. has very limited provisions to help encourage a level playing of campaign advertisement for registered candidates and parties.

 
CANADA

There is no legislative requirement for equal access to media and equal of cost of campaign advertisements. In addition, there are no public subsidies to all registered candidates and parties who attain at least 0.5 percent threshold of popular support. Instead public subsidies favour larger, established parties at thresholds of 2.0 and 5.0 percent of popular support. In addition, in the broadcast legislation, there is bias to large, established by allowing one party to have at least 49.9 percent of the broadcast campaign advertisement in an election. Further, all registered parties are guaranteed 6.5 hours of broadcast time, but this is contingent on the ability to pay.

Legislative Research

During an election period, electoral law mandates that licensed broadcasters must allocate time for “the broadcasting of programs, advertisements or announcements of a partisan political character on an equitable basis to all accredited political parties and rival candidates represented in the election or referendum” (Television Broadcasting Regulations, 1987).

The Canadian Radio-television and Telecommunications Commission (CRTC) Act presents the regulations regarding political advertising and broadcasting during an election period. Broadcasters are required to cover Canadian elections and must give all candidates, parties and issues "equitable" coverage during the campaign period. Equitable does not imply equal, broadcasters must simply take "reasonable" steps to present the views and positions of all parties (Public Notice CRTC, 1988).

During the election period, broadcasters are responsible for informing the public about the central issues regarding the election, and should present the positions and platforms of candidates and parties relating to those issues (Public Notice CRTC, 1988).

These guidelines pertain to television broadcasters, radio stations, and specialty television services licensed by the CRTC. They do not apply to pay television services or internet communications; therefore, they are not obliged to provide time to political parties, but may do so (Broadcasting Guidelines, 2011).

After the election is called until midnight the night before election day, broadcasters must allow every registered party the option to purchase 6.5 hours of prime-time programming in order to communicate the position of the party though political announcements and other programming to the public (Elections Act, Article 335).

It is the prerogative of individual networks and broadcasters to exceed the allocation of minutes designated for political programming and sell time to a party outside of the guidelines for purchase. For example, they can sell minutes above what a party is entitled or outside of prime time. However, a broadcaster cannot discriminate in favour of one particular party. They cannot sell extra minutes to one party and refuse to sell to another at the same rate (Broadcasting Guidelines, 2011).

During the election period, the CEO appoints a Broadcasting Arbitrator, whose term expires six months after polling day (Elections Act, Article 332 (1) (2)).

The Broadcasting Arbitrator calls a meeting for the representatives of all registered parties to consult on the allocation of broadcast minutes. After receiving notice of this meeting, a registered party will not receive broadcast time if it indicates it does not want the time, fails to communicate its intentions regarding designated broadcast time, or does not present a representative at the meeting (Elections Act, Articles 336 – 337).

In the case where not all parties agree on the portion of time given, the Broadcasting Arbitrator allocates the minutes. S/he considers the number of candidates endorsed by each of the registered parties at the previous election, the percentage of seats the House of Commons held by each of the parties at the previous election, and the percentage of popular vote attained at the previous election to determine the allocation (Elections Act, Article 337(2), 338).

No single party is allocated more than 50 percent of the total broadcasting time (Elections Act, Article 338 (3)).

If the Arbitrator determines that minutes are unfair to a particular party or contrary to public interest, s/he can modify allocation in whatever way they deem appropriate (Elections Act, Article 338(5)).

New registered parties are entitled to purchase broadcast time during the election period not exceeding 39 minutes (Elections Act, Article 339).

Broadcasters cannot charge a registered party an amount that is higher than the rate charged to other parties for equivalent time for broadcasts or publications during the election period (Elections Act, Article 348).

Only certain networks are required to provide free broadcasting time to registered parties, it is not an obligation to all broadcasters (Elections Act, Article 345(1)). The following networks and radio stations are obliged to provide free broadcasting: CBC Radio One, SRC Première Chaîne, CBC TV (English), SRC-TV (French), TVA, and V Télé (Broadcasting Guidelines, 2011).

The amount of free broadcasting made available cannot be less than the amount of free minutes allocated at the last federal election. Networks must allow every registered and eligible party at least 2 minutes free broadcasting and additional time in proportion to their allocated purchasable broadcasting time (Elections Act, Article 345(2)).

The guidelines for broadcasting minutes apply only to registered parties and not to individual candidates (Broadcasting Guidelines, 2011).

The FDA researchers found no regulation of candidate and party advertisement in the Internet and newspaper media sectors.

Analysis

Canadian processes on candidate and party campaign advertisement favour large, established parties through ability to pay mechanisms in broadcast media, no required equal access to and cost of advertisement in print media, and public subsidies which favour large, established parties. The Canadian processes discourage a level playing field in terms of campaign advertisement, and therefore they are detrimental electoral competition.



RUSSIA

There is significant free air time designated for candidates and parties on state and municipal media, and this air time is contingent on corresponding paid air time. Also, Russia uses lot drawing to determine the time of free of air time and specific space in print media. Public subsidies for candidates and parties are based on the number votes cast for candidates and parties.

Legislative Research

In Russian presidential elections the election law gives each candidate 80 minutes of free air time on work days on television and radio. The total length of paid air time so reserved must not be less than the total length of free air-time but must not exceed this air-time more than twice (Federal Election Law On the Election of the President of the Russian Federation, Article 49).

In the election of the President of the Russian Federation registered candidates are entitled to free space in the national state-run periodicals which come out at least once a week, the said space to be provided to them on equal terms and conditions (size of the space to be provided, place on the page, type, etc.) (Federal Election Law On the Election of the President of the Russian Federation, Article 50, Clause, 1).

Lot–drawing to determine the dates and time when election propaganda materials of registered candidate and political parties, joint campaigning events are to be aired free of charge on the channels of the national state TV and radio broadcasting organizations shall be conducted by the Central Election Commission of the Russian Federation with the participation of TV and radio broadcasting organizations. Lot–drawing to determine the dates and time when propaganda materials of registered candidate and political parties, joint campaigning events are to aired free of charge on the channels of the regional state TV and radio broadcasting organizations shall be conducted by the election commissions of the subjects of the Russian Federation with the participation of TV and radio broadcasting organizations. Lot–drawing shall be conducted after the registration of candidates is completed but not later than 30 days before voting day, or, in the event of a repeat vote, not later than one day from the day on which a repeat vote is announced. The lot-drawing procedure may be witnessed by persons mentioned in Clause 1, Article 23 of this Federal Law. The results of lot-drawing shall be recorded in a protocol. The air time distribution schedule determined on the basis of lot-drawing results shall be published in the national and regional state print media (Federal Law No. 93-FZ of July 21, 2005; No. 64–FZ of April 26, 2007).

The total minimum weekly amount of free print space which each national state print media outlet is to provide to registered candidates, political parties which nominated registered candidates shall be not less than 5 percent of the total weekly print space of the given publication. The information about the total amount of free print space to be made available by a print media outlet for election campaigning in the aforementioned period shall be announced by the print media outlet not later than 20 days after the official publication of the decision to call the election of the President of the Russian Federation (Federal Law No. 93-FZ of July 21, 2005).

Non-state print media, which complied with the provisions of Clause 9, Article 51 of this Federal Law, shall provide print space to registered candidates on equal terms and conditions. The non-state print media which failed to comply with the provisions of Clause 9, Article 51 of this Federal Law shall not be allowed to provide print space to registered candidates for election campaigning purposes. Non-state print media may refuse to provide print space for election campaigning purposes.

Organizations, individual entrepreneurs which/who provide advertising services shall ensure equal terms and conditions for registered candidates to display their election propaganda materials (Federal Law No. 93-FZ of July 21, 2005).

The cost of free air time and free print space shall be determined by multiplying the amount of air time and print space, provided to political parties in accordance with Clause 5, Article 52 and Clause 5, Article 53 of this Federal Law, by the rates charged for air time and print space, as fixed and published by the TV and radio broadcasting organizations and the print media in accordance with Clause 9, Article 51 of this Federal Law. If free air time was used for participation in joint campaigning events, the sums to be paid by each political party falling within Clause 3 of this article shall be determined by the state TV and radio broadcasting organizations in equal parts in proportion to the total number of the participants (political parties) in each of these joint campaigning events for which free air time was provided to a political party. The cost of the provided free air time and print space shall not be paid if a political party officially refused to use such air time and print space in accordance with the procedure and at the time specified by Clause 18, Article 52 and Clause 11, Article 53 of this Federal Law (Federal Law No. 93-FZ of July 21, 2005, Clause 6).

Rights of a Political Party
g) make use of state and municipal mass media on equal terms (Russian Federation Federal Law No. 95-FZ, 2001, July 11, Article 26).

Kinds of State Support for Political Parties
1. The federal bodies of state power, bodies of state power of the subjects of the Russian Federation and bodies of local self-government shall provide support for political parties, their regional branches and other structural subdivisions on equal terms and conditions by:
a) ensuring equal terms and conditions and equal guarantees of access to state-run and municipal mass media;
b) providing state-owned and municipal premises and means of communication on equal terms and conditions similar to those under which they are provided to state and municipal institutions;
c) ensuring equal terms and conditions for participation in election campaigns, referenda, public and political events (Russian Federation Federal Law No. 95-FZ, 2001, July 11, Article 32).

Analysis

Although there is significant free air time available to Russian candidates and parties, this free air time is contingent on parallel purchase of paid air time. Therefore, the free air time favours candidates and parties who have the financial means to purchase paid air time. The use lot of drawing to determine the nature of free air time and space in free print creates fair conditions only for those candidates and parties who have free air time. Similarly, although there are provisions for equal terms and conditions for access to state-run and municipal mass media and private mass media, this provision is contingent on the ability to pay. The state financing of candidates and parties according to the number of votes cast favours large, established parties. Overall, the Russian processes encourage a level playing field in campaign advertisement between large, established parties, while small and new parties have a distinct disadvantage.
 
 
VENEZUELA

Although Venezuelan electoral law demands equal access to media for all candidates and parties, there is no provision that the media charge the same advertisement costs to all candidates and parties. In addition, during the campaign period, the National Electoral Council may disseminate election propaganda to ensure complete and balanced campaign coverage and which acts as an indirect subsidy for candidates and parties.

Legislative Research

Each candidate is limited to a half page print ad in national newspapers per day, and broadcast ads are limited to 3 minutes per day (National Electoral Council Investigates Campaigns, 2012). Radio ads are limited to 4 minutes per day (Walser, 2012).

The state requires equal media access to all registered candidates and parties (Election Law, Article 72(10)).

The FDA researchers could not find legislation that requires an equal cost for advertisements for all candidates and parties. The National Electoral Council’s authority to finance the dissemination of election propaganda, and the state requirement that the media observe a rigorous balance of candidate and party advertisement in terms of space and time partly offsets this lack of legislation.

Broadcast media must not refuse to broadcast election propaganda unless directed by the National Electoral Council (Election Law, Article 80).

The state does not view candidates and leaders of political organizations, and any political group or organization participation on talk shows, news radio or television or in social media printed, digital, or other mass media as electioneering communication (During the Election Campaign Propaganda, 2012).

Public and private media election coverage will be complete and balanced without distorting the reality of the campaign. The media must observe "rigorous" balance in terms of space and time devoted to information on candidates and parties (Election Law, Article 81).

The FDA researchers found no legislated public subsidy component in the Venezuelan electoral system, except indirectly through the NEC, which has the authority to finance the dissemination of election propaganda and ensure equality of political advertisement in the press, radio, and television. The NEC's authority does not include billboard, poster, and flyer advertisements. The press, radio, and television are mass media outlets (Election Law, Article 78).

The state does not allow election propaganda outside of the election period. Venezuela law defines election propaganda as information that encourages or persuades the electorate to vote for a particular candidate or party, or against a particular candidate or party (Election Law, Article 75(1)).

The state disallows posters, drawings and other propaganda on public buildings and monuments (Election Law, Article 32).

Any political party for their propaganda may not use publications, radio stations, television stations and other official media (Election Law, Article 35).

Analysis

Although there is legislated equal access to media for campaign advertisement, there is no requirement for equal cost of advertisement. Therefore, Venezuelan parties connected to media may have a financial advantage over other parties. In addition, although there are no public subsidies to help ensure a level playing field of campaign advertisement, the National Electoral Council has the authority and financial means to intervene in an election to help ensure complete and balanced election coverage through the dissemination of election propaganda. However, it is questionable that a government body should be involved in campaign advertisement through dissemination of election propaganda because there is the potential for bias.


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Mr. Stephen Garvey, Executive Director Foundation for Democratic Advancement