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electoral controversy in Venezuela: can elected officials campaign? (part 3a)

October 22, 2010

[This is the sixth installment of this article. You may wish to read Part 1 Part 1, Part 2 , Part 2b, Part 2c, and/or Part 2d before proceeding.]

Apologies for the long delay in getting this third part online. I’ve been devoting all of my writing time to my dissertation proposal, which has now been submitted. So, as promised, here’s a look at the laws governing Venezuela’s electoral process, especially in relation to the legislative election that took place in September.

(Note: All of the English translations that follow are my own. My knowledge of Latin American legal terminology is suspect, so please let me know if I made any poor decisions. The Spanish text, of course, is taken from the official documents.)

I’ll begin with the laws cited by Súmate in their press releases. Not all of the releases that I looked at listed the same laws, but the following is a compiled list of the laws that were mentioned. That doesn’t mean that this list is comprehensive. In fact, Súmate neglected to mention some important clauses from the laws they cite, as I point out below, but there may be (and probably are) other laws that regulate election propaganda. If you can identify them, please post in the comments.

Súmate starts with Article 145 from the Venezuelan Constitution:

Artículo 145 de la Constitutión: Los funcionarios públicos y funcionarias públicas están al servicio del Estado y no de parcialidad alguna. Su nombramiento o remoción no podrán estar determinados por la afiliación u orientación política. Quien esté al servicio de los Municipios, de los Estados, de la República y demás personas jurídicas de derecho público o de derecho privado estatales, no podrá celebrar contrato alguno con ellas, ni por sí ni por interpósita persona, ni en representación de otro u otra, salvo las excepciones que establezca la ley.

Article 145 of the Constitution: Public servants are in the service of the State and not any partiality. Their nomination or removal can not be determined by political orientation or affiliation. Whoever is in the service of a Municipality, State, or the Republic and other state persons within public or private law, can not enter into any contract with those entities, neither in their name nor via an intermediary, nor in representation of another, save any exceptions established by law.

I’m not sure that this article carries much weight in relation to the recent election. I assume that Súmate means to point out that State media workers were not acting impartially by covering United Socialist Party of Venezuela (PSUV) campaign events (or that higher administrators did not act impartially when ordering the media to do so), but the wording in the first sentence requires interpretation, and nothing in the second or third sentences of the Article 145 is at issue in relation to the recent elections. So while the constitution clearly establishes that public servants should serve the State impartially, we need to look at more specific laws, where the constitutional mandates are spelled out in detail.

Súmate points to three articles from the Anti-Corruption Law. Here they are in Spanish:

Artículo 13 de la Ley Contra la corrupción: “Los funcionarios y empleados públicos están al servicio del Estado y no de parcialidad política o económica alguna. En consecuencia, no podrán destinar el uso de los bienes públicos o los recursos que integran el patrimonio público para favorecer a partidos o proyectos políticos, o a intereses económicos particulares”.

Artículo 18 de la Ley Contra la corrupción: “Los funcionarios y empleados públicos deberán utilizar los bienes y recursos públicos para los fines previstos en el presupuesto correspondiente”.

Artículo 68 de la Ley Contra la corrupción: El funcionario público que abusando de sus funciones, utilice su cargo para favorecer o perjudicar electoralmente a un candidato, grupo, partido o movimiento político, será sancionado con prisión de un (1) año a tres (3) años.

And English:

Article 13 of the Anti-Corruption Law: “Public servants and employees are in the service of the State and not any political or economic partiality. As a result, they can not direct the use of public goods or resources belonging to the public heritage in favor of political parties or projects, or private economic interests.”

Article 18 of the Anti-Corruption Law: “Public servants and employees must use public goods and resources for the ends foreseen en the corresponding budget.”

Article 68 of the Anti-Corruption Law: “Public servants who taking advantage of their duties, use their position to electorally favor or damage one candidate, group, party or political movement, will be sanctioned with a prison term of one (1) to three (3) years.”

During this last election, the opposition objected to Chávez using official state speeches to encourage support for PSUV candidates. While I might personally disagree with the propriety of such behavior, it’s hard to see that it could or should merit a one year term in prison. On the other hand, if State media outlets were indeed running uninterrupted coverage of PSUV campaign events like caravans – especially if there was no balancing coverage for opposition parties – then that would seem to count as “directing the use of public goods or resources … in favor of political parties”. Whether that corresponds to the budget or not becomes a moot point. Of course, one would have an extremely hard time proving that Chávez himself did the illicit directing of resources (which I point out only because most of the accusations of misuse of state media seem to target Chávez himself, and not the workers at the media outlets).

There is also an electoral finance law with similar language:

Artículo 9 del Reglamento Nº 5 de la Ley Orgánica de Procesos Electorales en Materia de Control del Financiamiento de Campaña Electoral: “No se permitirá el financiamiento de la campaña electoral con recursos provenientes de: … 2. Donaciones, aportes o subsidios de organismos o entes públicos; … 8. Fundaciones de carácter público o de carácter privado que reciban recursos del gobierno nacional o de Estados u organismos extranjeros;”

Article 9 of Regulation Number 5 of the Fundamental Law of Electoral Processes Regarding Financial Control of Electoral Campaigning: “Electoral campaigns can not be financed with resources provided by: … 2. Donations, support or subsidies of public entities or organizations; … 8. Public foundations or private foundations that receive resources from the national government or foreign States or organizations;”

It’s hard to argue that full coverage of PSUV campaign events is not tantamount to a subsidy from a public entity and the practice should not continue in the future. Supporters of the PSUV – I anticipate – would claim that the opposition is also running afoul of Article 9, as some oppositional groups have received funding from non-Venezuelan organizations like the US National Endowment for Democracy (NED) and the Institute for Press and Society (IPYS). I have not looked deeply into these claims, though I have little doubt that even in the best case scenario some of these outside funders are knowingly skirting the law by directing their contributions in such a way that they can not be easily classified as campaign “financing”, even though they work to promote the opposition parties’ chances in elections. Eva Golinger, for example, has argued that the outside money should be considered campaign financing in relation to not only the most recent elections, but other important campaigns like the 2004 recall referendum. Although I’ve not seen the following argument made publicly, I imagine that many PSUV supporters manage to convince themselves that since opposition parties receive not only this foreign aid but also the support of most of the important commercial media outlets in Venezuela, the PSUV is entitled to utilize state media as a counterbalance. After all, democracy requires deliberation around multiple publicly-accessible arguments and proposals. Since PSUV campaign events wouldn’t be broadcast at all if it weren’t for state media, then it’s actually vital that the practice continue.

In any case, that’s my best attempt at representing such an argument, but I don’t subscribe to it myself. If any party is illegally receiving campaign contributions, then that should be proven in a court of law and the party and/or party officials and candidates punished accordingly. Creating a balanced media environment that includes commercial outlets is a longer and more complex process, but to begin, campaign coverage on state media outlets should be journalistic, factual, and balanced. News on these outlets might incorporate both the “objective”, professional model as well as programs and segments dedicated to what is known as “reported opinion”, in which editorial content is substantiated with factual argument.  Autonomous, state controlled media can and should provide this range of voices, but they cannot take it upon themselves to give voice to the PSUV. The aim of Venezuelan communications policy, and the shared goal of state media practitioners, should be to create a media environment that allows for and nurtures multiple voices. Most of the debate to this point has focused on commercial and state media outlets, but an autonomous community media system can play a key role here. Community media outlets may choose to abandon “professional objectivity”, and they might enthusiastically back PSUV candidates, but if the system were suitably structured, they could do so in a democratically determined way. Other community media outlets, meanwhile, might choose to back opposition candidates, also decided by democratic deliberation. The key is structuring policy so that more citizens have more opportunities to participate.

In the next and, hopefully, final installment of this article, I’ll look at the Venezuelan law that most directly regulates the use of media in electoral campaigns: The Fundamental Law of Electoral Processes Regarding Electoral Propaganda (Ley Orgánica de Procesos Electorales en Materia de Propaganda Electoral).

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