Monday, June 10, 2013

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 1st (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 1st 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 1st 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

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