Tuesday, May 7, 2013

FDA Talking Points Series: 48-hour Rule


Photo of a President Chavez campaign rally during the 2012 Venezuelan Presidential Election. In Venezuela, there is a 48-hour electioneering blackout prior to Election Day. The length of this blackout is consistent with the FDA's standard on blackouts. In Canada, there is a blackout period only on Election Day, and in the United States, there is no blackout on or prior to Election Day. (Photo source: voltairenet.org)
The Foundation for Democratic Advancement (FDA) takes the position that a 2-day or 48-hour blackout on campaigning prior to and including Election Day is a reasonable time for the electorate to evaluate campaign information without at the same time receiving additional campaign information. The intent of the blackout period is to give persons adequate time and a relatively information-stable environment to reflect and evaluate campaign information, and thereby help create the conditions for the electorate to make most informed choice on Election Day. In addition, the blackout period helps to prevent influence and/or manipulation of the electorate in the last days of an election. Because the 48-hour blackout period applies to all candidates and parties, there would be no electoral unfairness. However, an effective blackout period is contingent on a number of other factors such as a reasonable campaign period of 60-days and freedom of speech and assembly.

In determining the length of the blackout period, the FDA acknowledges that a balance must be attained between allowing the candidates and parties to inform the electorate of their policies and backgrounds, and giving the electorate adequate time and space to reflect upon the campaign information. A lengthy blackout period may obstruct unreasonably candidates and parties from sharing information with the electorate, and the electorate could lose interest in the election. A very short or no blackout period may threaten the electorate's ability and means to adequately reflect upon the campaign information, and allow larger, established parties greater influence over the electorate in the last days and hours of an election through greater resources and media access than smaller and new parties.  

Early Votes and Absentee Balloting

The FDA acknowledges that early voting through absentee, mail-in, and overseas balloting negates the need for a blackout period. However, in the 2011 Canadian Federal General Election as an example, 14.17 percent of the Canadian electorate participated in advanced polls (FDA calculation based on Long Description of Advance Poll Turnout (2006-2011), 2013; Voter Turnout at Federal Elections and Referendums, 2013). Therefore, in Canada at the federal level, a blackout period is still justified.

In the 2008 U.S. Presidential Election, 30.6 percent of the American electorate voted early, and in 2012 U.S. Presidential Election, 24.6% of the electorate voted early (2012 Early Voting Statistics, 2012). Therefore, a blackout period is less relevant in the United States than Canada.

Comparative Blackout Periods

UNITED STATES

The United States at the federal level of government has no blackout period prior to a federal Election Day. However, there is a blackout period of electioneering communication prior to 60-days before a federal Election Day.

Legislative Research

A 'blackout' period exists for particular forms of 'electioneering communications.' Electioneering communications are any form of broadcast, satellite or cable advertisements that refer to a specific candidate for Federal office and are delivered to its relevant electorate (Code of Federal Regulations, Subchapter A, Section 100.29 Electioneering communication; U.S. Code, 434(f)(3)).

No candidate or agency acting on behalf of a candidate (including corporations and unions) may publically distribute any form of electioneering communications within 30 days prior to a primary election or 60 days prior to a general election or special runoff election (Code of Federal Regulations, Subchapter A, Section 100.29 Electioneering communication; U.S. Code, 434(f)(3)).

Electioneering communications do not include communications featured in news stories or editorials that have been funded and distributed independent of a candidate or party; a communication that is considered an expenditure or independent expenditure according to the Bipartisan Campaign Reform Act of 2002; debates or forums held by candidates that adhere to the rules and regulations set by the Federal Elections Commission; or any other form of communication that the Federal Elections Commission labels as acceptable according to the established requirements of sections 301(20)(A)(iii) (2 U.S.C. § 431(20)(A)(iii) of the Bipartisan Campaign Reform Act of 2002 (Federal Election Campaign Laws, Section 434 (3) (B)).

Analysis

With no blackout period, the U.S. federal election laws favor larger, established parties in the final days of a federal election through greater financial resources and greater access to media than small and new parties. In addition, the American electorate are deprived of reasonable time to reflect upon their electoral choices without being inundated with electioneering communication. With about 25 percent of American's participating in early balloting, a blackout period is still relevant.

CANADA

Canada at the federal level of government has a election blackout period on Election Day.

Legislative Research

No person (or registered party or group) shall transmit election advertising to the public in electoral districts on the polling day until the close of all polling stations (Elections Act, Articles 323 (1), 323 (3)).

Notices about events involving leaders of registered parties about events a leader will attend or invitations to attend an event of a leader are not considered election advertising (Elections Act, Article 323 (2)).

Internet messages sent prior to the polling day, distribution of pamphlets or posting messages on signs, posters, or banners, transmission of public notification that election survey is not based on recognized statistical methods within 24 hours after it was first transmitted do not apply to blackout period (Elections Act, Article 324 (a) and (b), Article 327).

No person (or registered party or group) shall knowingly cause the transmittance an election survey to the public on the polling day that had not been previously transmitted (Elections Act, Article 328 (1)).

No person (or registered party or group) shall transmit to the public an election survey on the polling day that had not been previously transmitted (Elections Act, Article 328 (1)).

Analysis

The 24-hour blackout period favours large, established parties because through their greater resources and greater access to media, they have greater opportunity to influence the electorate up to the day prior to Election Day. In addition, the Canadian electorate has minimal time to reflect upon their electoral choices without being inundated with electioneering communication.

VENEZUELA

Venezuela at the federal level of government has a 48-hour blackout period prior to Election Day and for electioneering communication. This blackout period is consistent with the FDA's 48-hour blackout rule. 

Legislative Research

The state requires election propaganda to cease within 48 hours of Election Day (Election Law, Article 232(2)).

The state prohibits disclose results of polls or surveys, which aim to present electoral preferences or voting intentions, seven days prior to Election Day (Election Law, Article 82).

Analysis

Venezuela at the federal level of government has reasonable balance between between electioneering and giving the electorate time to reflect upon their electoral choices.

References

2012 Early Voting Statistics. (2012). United States Elections Project. Retrieved from http://elections.gmu.edu/early_vote_2012.html

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

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= Federal Election Campaign Finance Laws. (2008, April). Federal Election Commission. Retrieved from http://www.fec.gov/law/feca/feca.pdf

Voter Turnout at Federal Elections and Referendums. (2013). Elections Canada. Retrieved from http://www.elections.ca/content.aspx?section=ele&dir=turn&document=index&lang=e






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

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