Sunday, May 19, 2013

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.


References

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

Broadcast Act. (1991). February 1, 1991. Retrieved from the Department of Justice http://laws-lois.justice.gc.ca/eng/acts/B-9.01/page-1.html

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

Communications Act. (1934). Information on the Act retrieved from the U.S. Department of Justice: http://www.it.ojp.gov/default.aspx?area=privacy&page=1288

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

Elections Act. (2000, May 31). . 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

FDA Global Electoral Fairness Report on Canada. (2013). Foundation for Democratic Advancement. Publication date: May 27, 2013.

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

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

National Electoral Council Investigates Campaigns. (2012). Embassy of the Bolivarian Republic of Venezuela. (Washington, D.C. U.S.A.). Published: 08/31/2012. 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

Russian Federation Federal Election Law on the Election of the President of the Russian Federation. As amended on July 24, 2007. Adopted by the State Duma on December 24, 2002. Approved by the Federation Council on December 27, 2002.

Russian Federation Federal Law No. 67-FZ (2002, June 12, 2002). RUSSIAN FEDERATION FEDERAL LAW "ON POLITICAL PARTIES". Amended on April, 26, 2007. Adopted by the State Duma on June 21, 2001. Approved by the Federation Council on June 29, 2001.

Russian Federation Federal Law No. 95-FZ. (2001, July 11).

Television Broadcasting Regulations. (1987). January 9, 1987. Retrieved from the Department of Justice http://laws-lois.justice.gc.ca/eng/regulations/SOR-87-49/page-1.html

The Public and Broadcasting: How to Get the Most Service from Your Local Station. (July 2008). The Media Bureau. Federal Communications Commission.

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

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