The entries in this section will examine some of the technical questions involved in regulating the activities of political parties and candidates for public office during election campaigns. Narrow technical considerations, though vital, are not sufficient to ensure that an election is carried out according to standards of fairness, freedom of speech, and the other guiding principles set out earlier (see Guiding Principles). For example, even if public broadcasting time is allocated fairly between political parties and candidates, this may constitute a small island of fairness amid a rough sea of injustice. This is because such broadcasts are only a small part of the output of public broadcasting.
This file therefore starts by examining the overall context - the 'sea' - within which elections take place. It will examine, in particular, the unfair advantages which governments can gain, even if they stick to the letter of the rules relating to the election campaign itself.
This entry will also examine the meaning of the term 'election campaign.' Political parties often maintain permanent organizations at national, regional, and local levels. Is it possible to distinguish, either for legal purposes, or for more theoretical, academic purposes between 'routine' and 'campaign' activities and costs?
Election Campaigns: Possible Abuses by Governments
Governments consist of human beings, normally ambitious human beings anxious to retain power. Government leaders are likely to make every attempt to manipulate public opinion. If they face restrictions in the election period itself, they will try to gain every possible advantage in the weeks and months that precede that campaign. Unless checked by a vigilant press, by effective protests from opposition parties, pressure groups, or by other social and religious leaders, they will use their governmental prerogatives to carry out what amounts to a disguised (or sometimes barely disguised) appeal for public favour.
First, there are many possible abuses of public broadcasting, if the executives who run the television and radio stations are in the pockets of the government. The time allocated to parties for election broadcasts will usually be relatively insignificant when compared with total broadcasting output. How news reports are compiled and presented is even more important. Public opinion may also be affected by discussion programmes, plays, and even soap operas. These 'non-news' programmes may be designed with propaganda in mind. Even soap operas may be used as political tools, portraying a prosperous, go-ahead populace concerned with personal problems and romantic dilemmas in settings that suggest an economically secure lifestyle.
Second, the government may abuse its authority by using government information services to present partisan propaganda under the guise of objective public information. Or, it may use its powers of job patronage to fund election campaigning from the public purse. Public employees may be released from their duties provided they spend their time in helping the election campaign. There are many other ways in which governments may use their power to gain unfair electoral advantages.
Third, where there is a threat of violence and intimidation, the existence of fair campaign laws and efficient electoral administration will be undermined.
Examples of Government Manipulation of the Airwaves
The underlying problem raised by the examples applies to many countries:
Malaysia, 1982.
[T]he news programmes [on television] were filled with ministers opening schools, temples, bridges, roads, and virtually anything else that could be opened during the weeks before the election.64
Mexico, 1994.
The National Action Party (PAN) and the Party of the Democratic Revolution (PRD) accused the networks of biased coverage in favour of the PRI. They especially criticized Televisa, a network watched by 80 percent of the Mexican television viewers. In July 1994, Televisa ignored one of the biggest PRD rallies of the campaign, while it spent twenty-two minutes of air time on now-President Ernesto Zedillo. PRD has called Televisa 'one of the pillars that sustains the authoritarian regime.'
A study done by the Mexican Academy of Human Rights on news coverage by the air programme's 24 Horas ... of the Televisa network and Hechos ... of the Azteca Television Network, from January to April 1994 found that the PRI had a 3.1 advantage in total air time compared with PAN and PRD, which were the two strongest opposition parties.65
The conclusion that emerges from these and many other examples is that a fair political system requires attention to broader questions of the professionalism of broadcasters, and of the need to guard the independence of the media from the government of the day. It is not enough for political leaders and foreign election observers to focus their attention on the allocation of time for free broadcasts by the rival parties during the limited period before the poll.
As in Mexico, a system of monitoring the output of the broadcast media by academic or human rights groups may be helpful in drawing attention to any bias.
A checklist of items relevant to fair political coverage should include, beside the allocation of time for party election broadcasts:
- allocation of broadcasting time to political parties between elections
- measures to assure fairness in news coverage and in current affairs programmes
- arrangements for televised debates between rival party leaders during election campaigns
- arrangements for the appointment and dismissal of senior broadcasting executives who help to ensure against government control or manipulation
Misuse of Government Power for Campaigning Purposes
It is sometimes hard to distinguish between ways in which governments are legitimately entitled to advertise their achievements, and the abuse of official propaganda for partisan purposes. It is also difficult to draw the line between reasonable rewards given by governments to supporters in the form of patronage jobs, unjustly awarded public contracts, and corrupt, sleazy actions. Though the boundary line may be unclear in particular cases, this in no way invalidates the distinction. It is of little value to pass laws against vote buying or other forms of electoral corruption by political parties and by candidates if the government of the day is able to carry out activities which are, in practice, little different from vote buying.
Tackling Abuses of Power and Potential for Violence
While there are no simple solutions, there are several ways in which the atmosphere within which an election takes place may be improved. These include codes of conduct for political parties and candidates, (see Codes of Conduct for Political Parties) political education programmes run by the parties themselves, (see Political Parties and Voter Education) observation by human rights groups within the country, various forms of international assistance or observer missions (these are more likely to be successful if they start well before the poll), (see Foreign Contributions) and a free press.
Permanent, Routine versus 'Election Campaign' Activities
Even as far as individual candidates are concerned, it is hard to distinguish between a routine, and a campaign activity. Consequently, it is equally difficult to make a demarcation between an 'election' and a 'non-election' expense.
When legislators write letters to their constituents, or assign staff to deal with their personal problems, are they just carrying out their normal duties as representatives, or are they already conducting a campaign for re-election? Studies of the U.S. House of Representatives have detailed how incumbent members conduct what amounts to a permanent campaign, and use the financial and staff assistance they receive from public funds - supposedly to carry out public duties - to ingratiate themselves with their future voters. Mass questionnaires in the guise of requests for the opinions of voters are intended to advertise the name of the Congressman. Another technique is a letter to each young person who reaches voting age saying 'I am here to help you' - again with the same intention.
In countries where local party organizations exist on a permanent basis, it is even harder to tell when the 'campaign' proper begins. Until recently, the constituency associations of the British Conservative Party usually had a permanent local office staffed by a full-time agent and secretary. Together with the association's officers, the agent has the job of building a membership roll, and making preparations during electoral 'peacetime' for the weeks immediately preceding the next general election. This is likely to include the purchase of word-processing equipment and other electioneering paraphernalia. Yet, it is only the costs incurred in the short period of the official campaign that are included in the costs that must be contained within the parliamentary candidate's legal limit.
At the national headquarters, too, the distinction between campaign and non-campaign may be artificial. If a political party headquarters commissions private opinion polls on a regular basis, at what stage does the cost of these polls become a campaign expense?
Since there can be no watertight, objective division between routine and campaign items, party organizations make whatever division is most advantageous. For instance, at the constituency level, there is a strong incentive for party organizations in Britain to put expenditures wherever conceivably possible into the non-campaign category. They will thus escape the regulation and restrictions that apply solely to 'campaign' costs. In contrast, when the Constitutional Court in West Germany ruled in the 1960s that public subventions could go only to the campaign activities of the political parties, the incentive was to load up the 'campaign' category on the grounds that, directly or indirectly, the entire objective of a party organization is to win elections, and that the category of 'routine' is a misnomer.
A realistic generalization is that wherever special restrictions are imposed on activities and expenditures, defined as 'campaign' activities, parties and candidates will try to re-define as many items as possible as 'non-campaign'.
The already difficult task of drawing a boundary line between campaign and non-campaign is sometimes made even harder. First, in countries where there is no fixed election date (as in Britain), the parties must put themselves in readiness for an election that might be called by the Government at short notice. In the later stages of the term of a Parliament, when the prospect of a sudden election campaign becomes greater, the political parties and their candidates must step up their electioneering activities, just in case the election is called. There may be a number of false alarms. The result of the uncertainty is a variable, and sometimes prolonged, run-up period to the campaign: a period of semi-campaigning.
Second, the problem of dividing between routine and campaign is not only a matter of the time at which expenses are incurred. It is arguable that some expenses incurred before the start of the election period should be classed as campaign items, while other items of spending incurred during the time of the election should be classed as routine. For instance, if a political party spends money on preparing films to be used in their election broadcasts, these costs should - according to one view - be included as 'campaign' costs no matter when they were incurred. Conversely, the rental of a permanently-occupied party headquarters building during the election can reasonably be called a non-election item, since the party would have paid it had there been no campaign.
At this stage, any effort to sustain the election/non-election divide becomes very messy. Yet, laws that apply to election campaigns make the task of distinguishing unavoidable. The problems are well illustrated by a study, considered in the next section, commissioned by the Canadian Royal Commission on Electoral Reform and Party Financing.
Canada: Election versus Non-Election Spending
Canadian electoral law imposes ceilings, not only on the permitted election expenses of parliamentary candidates, but also on those of the national party organizations. The division between election and non-election items is therefore of importance.
At the national level, there is an incentive for the large parties to stretch the definition of 'non-election' expenses. This is because they otherwise risk exceeding the permitted spending ceiling. In contrast, smaller parties have the opposite incentive. Their expenses are well below the ceiling. Therefore, they stand to gain by moving items into the 'election' category. This is because election expenses (but not routine costs) are partly reimbursed by the government.
The problems of definition provide a feast for lawyers and regulators since the interpretation of single words in the relevant legislation can have far-reaching consequences. For example, Professor Stanbury has reported that
[t]he definition of 'election expenses' in the Canada Elections Act requires that an expense be 'for the purpose of promoting or opposing, directly and during an election, a particular registered party.'
The ambiguity now passes to the word 'directly'. What of activities that benefit a party's electoral prospects indirectly? According to guidelines issued in 1988 by the Chief Electoral Officer
The cost of collecting and analyzing survey information is not an election expense, as the activity does not result in the direct promotion of a party ...
Other categories are excluded on the same grounds.66
At the constituency level, an ambiguity about one obscure point relating to the definition of 'election expenses' in Canadian law led to the so-called 'Masse affair.' Marcel Masse resigned his Cabinet post when it was announced that he was under investigation with respect to his 'election expenses' following the 1984 election. The chief electoral officer felt obliged to point out in his 1985 Statutory Report that
the present definition of election expenses is so vague and imprecise that its application to various sections of the Act has become extremely difficult.67
To complicate matters further, definitions of 'election expenses' vary across different jurisdictions within Canada itself. According to the Final Report of the Lortie Commission:
In Canada, approaches differ at the federal and provincial levels for defining election expenses. Under one approach, sometimes referred to as 'inclusive', an initial broad definition of election expenses is followed by a few specific exclusions and, in some cases, inclusions. Of the seven provinces that have statutory spending limits, five have adopted this inclusive approach (Quebec, Ontario, Nova Scotia, New Brunswick, and Prince Edward Island). In contrast, the federal definition of election expenses entails an initial statement followed by a list of several items considered to be election expenses; the list, although not intended to be exhaustive, helps to give meaning to the definition ...68
It would be wrong to judge the Canadian legislation too harshly. Admittedly, it is the task of lawmakers to draft clear measures. But the job of finding wording that draws a boundary between 'election' and 'non-election' activities and expenses is as hard as making a legally watertight distinct between terms like 'tall' and 'short'.
Draft Only
