2012 FDA Global Electoral Fairness Audit ofthe American Presidential and CongressionalElectoral SystemsElectoral Fairness ...
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Table of ContentsIntroduction 4How to Read the Report 5Chapter 1: Electoral Finance Audit Results 9Analysis 21Chapter 2: M...
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United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)
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United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)

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U.S. Electoral Fairness Report revised as of April 11, 2013

Executive Summary

The American federal electoral system borders a failed state as determined by the overall unsatisfactory audit score of 54.5 percent (out of 100 percent). The FDA auditors measured

1) two failing scores for legislation pertaining to electoral finance (48.25 percent) and media election content (42.5 percent);
2) one unsatisfactory score for legislation pertaining to candidates and parties
(57 percent);
3) one satisfactory score for legislation pertaining to voters (70.25 percent).

The FDA auditors factored in 52 independent variables and used matrices and financial spreadsheets in its calculations and determinations. Based on its measurements, the FDA believes that the American federal election outcomes may not reflect the voice of Americans from electoral districts. The significant legislated unfair competition between American candidates and parties coupled with electoral finance legislation favoring wealthy money interests and media legislation favoring large corporate media and imbalanced election coverage creates a system tilted heavily to special and minority interests, rather than the American people. The FDA believes that reforms are necessary in electoral finance and election coverage in order to help realign the American federal electoral process with Americans as a whole. The FDA recommends, for examples, expenditure limits on congressional candidates and privately funded presidential candidates, caps on independent third-party expenditure, caps on media ownership concentration, and a voluntary media code of conduct during the 60 day campaign period which supports impartial and balanced campaign coverage of all registered candidates and parties.

The FDA recommends that the public get involved with the government legislative process and implementation if they want to protect and advance their democratic voice, and create a society of their choosing.

“If liberty and equality, as is thought by some, are chiefly to be found in democracy, they will be best attained when all persons alike share in government to the utmost.”
- Aristotle

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United States--2012 FDA Global Electoral Fairness Audit Report (Revised April 11, 2013)

  1. 1. 2012 FDA Global Electoral Fairness Audit ofthe American Presidential and CongressionalElectoral SystemsElectoral Fairness Audit Completed October 14, 2012Revised April 11, 2013Executive SummaryThe American federal electoral system borders a failed state as determined by theoverall unsatisfactory audit score of 54.5 percent (out of 100 percent). The FDAauditors measured1) two failing scores for legislation pertaining to electoral finance (48.25 percent) andmedia election coverage (42.5 percent);2) one unsatisfactory score for legislation pertaining to candidates and parties(57 percent);3) one satisfactory score for legislation pertaining to voters (70.25 percent).The FDA auditors factored in 52 independent variables and used matrices and financialanalysis in its calculations and determinations. Based on its measurements, the FDAbelieves that the American federal election outcomes may not reflect the voice ofAmericans from electoral districts. The significant legislated unfair competitionbetween American candidates and parties coupled with electoral finance legislationfavoring wealthy money interests and media legislation favoring large corporate mediaand imbalanced election coverage creates a system tilted heavily to special and minorityinterests, rather than the American people. The FDA believes that reforms are necessaryin electoral finance and election coverage in order to help realign the American federalelectoral process with Americans as a whole. The FDA recommends, for examples,expenditure limits on congressional candidates and privately funded presidentialcandidates, caps on independent third-party expenditure, caps on media ownershipconcentration, and a voluntary media code of conduct during the 60-day campaignperiod which supports broad and balanced campaign coverage.The FDA recommends that the public get involved with the government legislativeprocess and implementation if they want to protect and advance their democratic voice,and create a society of their choosing.“If liberty and equality, as is thought by some, are chiefly to be found indemocracy, they will be best attained when all persons alike share ingovernment to the utmost.”- Aristotle
  2. 2. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 2 of 82Prepared ByMr. Stephen Garvey, Executive Director Foundation for Democratic Advancement, Bachelor ofArts in Political Science, University of British Columbia and Master of Philosophy inEnvironment and Development, University of Cambridge.Peer Review ByMr. Steve Finley, Bachelor of Science in Electrical Engineering, Purdue University, Master ofBusiness Administration, Indiana University, and Juris Doctor, Valparaiso University;Ms. Anne Rupcich, Bachelor of Arts in Law and Society and English, University of Calgary;Ms. Lindsay Tetlock, Bachelor of Arts in International Relations and Master of Arts in HistoricalStudies, University of Calgary;Purpose of the American Electoral Fairness AuditThe purpose of the Foundation for Democratic Advancement (FDA)‘s electoral fairness audit(the ―Audit‖) is to determine a comprehensive grade for electoral fairness in the United States atthe executive and congressional levels of government. This Audit is an extension of the FDA‘sglobal audit of electoral fairness involving all countries that hold political elections. The purposeof the global audit is to quantify electoral fairness, establish benchmarks for electoral fairness,identify areas of democratic advancement and progression, and encourage democracy reformwhere needed.The goal of the FDAs United States report is to give the people of America and otherstakeholders an informed, objective perspective of the American presidential and congressionalelectoral systems and provide recommendations for reform.The views in this electoral fairness audit are the views of the FDA only. The FDA‘s membersand volunteers are in no way affiliated with the Federal Election Commission or any of theAmerican registered/non-registered political parties. The Audit is an independent assessmentbased on objectivity, transparency, and non-partisanship. The FDA assumes no responsibility orliability for any errors in the measurement and calculation of its audit results or inaccuracies inits research of relevant American legislation.About the Foundation for Democratic AdvancementThe Foundation for Democratic Advancement (FDA) is an international independent, non-partisan democracy organization. The FDA‘s mission isto measure, study, and communicate the impact of government processes on a free anddemocratic society.
  3. 3. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 3 of 82Overall, the FDA works1. to ensure that people become more knowledgeable about the outcomes ofgovernment processes and can then make decisions that are more informed;2. to get people involved in monitoring government processes at all levels ofgovernment and in providing sound, practical, and effective suggestions. (For moreinformation on the FDA visit: www.democracychange.org)To ensure its objectivity and independence, the FDA does not conduct privately paid research.However, if you or your organization has an important research idea or are aware of an importantissue on government processes, the FDA is available to listen to your idea or issue and possiblyhelp raise public awareness by initiating and leading change through report research andanalysis. Please contact the FDA at (403) 669-8132 or email us at info@democracychange.orgfor more information.An online version of this report can be found at: www.democracychange.orgFor further information and/or comments on this report please contact Mr. Stephen Garvey atstephen.garvey@democracychange.org
  4. 4. Table of ContentsIntroduction 4How to Read the Report 5Chapter 1: Electoral Finance Audit Results 9Analysis 21Chapter 2: Media Election Coverage Audit Results 22Analysis 29Chapter 3: Candidates and Parties Audit Results 31Analysis 48Chapter 4: Voters Audit Results 49Analysis 58Chapter 5: Overall Audit Results 60Chapter 6: Analysis 61Chapter 7: Conclusion & Recommendations 65References 71Appendix: Research and Audit Methodology 77FDA Research and Audit Teams and Observers 82
  5. 5. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 5 of 82IntroductionThe FDA based its audit of America‘s federal electoral legislation on non-partisanship andobjectivity.The audit process entails three major components:1) Research of Americas federal electoral legislation and any related legislation and documents.2) Audit of the legislation and research findings based on audit team consensus, and the FDA‘smatrices, financial spreadsheets, and scoring scales.3) Analysis of findings.The FDA based the matrix scoring scales on the fundamental democratic principles of legislativeneutrality, political freedom, and political fairness. In addition, it based the scales on thecomparative impact of variables on democracy. For example, if there is no electoral financetransparency then this result will affect other variables such as legislative process. Withoutfinancial transparency, it is near impossible to enforce electoral finance laws, which prevent anduncover electoral finance wrongdoing. Consequently, according to the FDA‘s matrices, zerofinancial transparency will result in a zero score for legislative process as well.The FDA‘s research component is objective as it is simply a compilation of the legislativeinformation and financial data for the American system and any related findings based in factand sound empirical research.The FDA‘s audit component is both objective and subjective. It is objective when determiningyes and no facts, such as does country ―A‖ have caps on electoral contributions—yes or no? It issubjective because of the predetermined scores for each audit section, and the scores determinedfor each section. The FDA acknowledges that there is no absolute scoring system ordetermination of scores.The FDA minimizes subjectivity through non-partisanship and basing each score on facts,research findings, financial calculations, and team audit consensus. It bases the scoring scales foreach section of the audit on consensus of the FDA auditors and survey results of relevantpersons. In addition, the application of core democratic concepts such as electoral legislativeneutrality, political freedom, and political fairness, and the comparative impact of variables ondemocracy inform the scoring scales. Finally, the FDA requires a minimum quorum of fiveexperienced auditors during audit sessions. For further discussion of the FDA methodology,please see the Appendix on page 77.The FDA is a registered non-profit corporation, and therefore it cannot issue tax-deductiblereceipts. In addition, the FDA is the sole funder of this report. As a policy to maintain itsindependence and objectivity, the FDA does not conduct privately funded research projects. TheFDA relies on donations. If you value this report, please consider donating to the Foundationfor Democratic Advancement to help cover the costs of producing this report and communicatingits content to the stakeholders, and to continue its work in the United States.“Democracy is not a spectator sport.”- Marian Edelman
  6. 6. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 6 of 82How to Read the ReportChapters 1 to 4 focus on the four sections of the FDA‘s audit of the American federal electoralsystem. These chapters are formatted in the following manner1) Chapter summary and table of audit results for the section.2) Audit questions, legislative research and audit findings on each audit subsection.3) Analysis of audit measurements and findings for the section.Chapter 6, ‗Overall Analysis‘, pertains to the measurements and findings from all four auditsections.Definition of Key TermsThe Foundation for Democratic Advancement characterized the following definitionsCandidates and parties (audit section three)The opportunity and ability of candidates and parties to campaign in the public domain forelected positions. This opportunity and ability occur before, during, and after an election period.Candidates and parties may involve election content of media, electoral finance, and voters (asdefined below). In the terms of the FDA electoral fairness audit, which focuses on electoralprocess, candidates and parties includes:1) Registrations requirements for candidates and parties.2) Laws on candidates‘ and parties‘ access to media and reasonable opportunity to takeadvantage of the access.3) Regulations on access to major debates.4) Electoral complaints process for candidates and partiesIn the FDA electoral fairness audit, candidates and parties only encompasses laws, regulations,procedures etc. that affect the influence of candidates and parties. For example, candidates andparties does not encompass laws on electoral complaints by voters nor does it encompass laws onvoter assistance at polling booths.Electoral fairnessThe impartiality and equality of election law before, during, and after an election period. In thecontext of the audit, electoral fairness involves concepts relating to election content in the media,candidates and parties, electoral finance, and voters. In particular, this includes evaluatingimpartiality and balance of political content in the media, equitable opportunity and ability forregistered candidates and parties to influence voters and government, equitable electoral financelaws, and equitable opportunity and ability for voters to voice political views and/or influencethe outcome of an election.Electoral fairness does not allow bias through, for example, legislation that gives a distinctelectoral advantage to one registered party over another, or laws that allow equitable access tomedia without facilitating equal opportunity to take advantage of this access. In contrast,
  7. 7. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 7 of 82electoral fairness would include a broad, balanced diffusion of electoral propaganda byregistered political parties during the campaign period, equal campaign finances (beyond equalexpenditure limits) for all registered parties according to the number of candidates endorsed, andthe registration of parties based on reasonable popular support (rather than financial deposit orunreasonable popular support).Electoral fairness in any democratic process must include an equal playing field for registeredparties and candidates, distinguishable by voters according to a clear political platform, and abroad and balanced political discourse in where information about electoral choices are clear andavailable to the voting public.Electoral finance (audit section one)Electoral finance laws applied to registered candidates and parties before, during, and after anelection period. Electoral finance also encompasses campaign finance which is restricted to thecampaign period.In the context of the FDA electoral fairness audit, electoral finance includes:1) Caps on electoral contributions (or the lack of).2) Caps on candidate and party electoral expenditures (or the lack of).3) Procedures for financial disclosure and reporting of candidate and party electoral finance.4) Procedures for the handling of electoral contributions by registered candidates and parties.Electoral finance does not include non-financial laws, regulations, procedures etc. such as thoserelating to candidate and party access to media, civil rights laws such as freedom of speech andassembly, rules on right of reply in the media, laws on the election content of media, and laws onvoter assistance.Special interest-based democracyA system in where either individual or corporate interests dictate government action and factionswith the most economic and political power in society influence policies and legislation. Theelectoral system is set up to allow special and minority interests to impact election outcomesprimarily through electoral finance and media access and exposure.People-based democracyA system where power is invested in the people and the population as a whole influencegovernment policies and legislation. The electoral system is set up in a fair and equitable mannerso that all citizens, within reason, have an opportunity to influence the election outcome to thesame degree.Media election coverage (audit section two)The political content of radio and television broadcasters, the printed press, and online newsmedia such as news sites before, during, and after an election period. This content may includenews stories, editorials, articles, programs, and group analysis and discussion. It does not includeelectoral advertisements by candidates, parties, and third parties. Electoral advertisements by
  8. 8. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 8 of 82candidates and parties are included in candidates and parties, and electoral advertisements bythird parties are included in voters and electoral finance.In the context of FDA electoral fairness audit, election content of media includes:1) Registration requirements for television and radio broadcast companies and press companies.2) Laws on the ownership concentration of media (or the lack of).3) Laws on the election content of media before, during, and after a campaign period.4) Laws on freedom of the press and broadcasters.The FDA defines ―balance‖ in the media as having equal political content of all registeredpolitical parties presented during the election period. Voters should receive balanced informationon all registered candidates and parties in order for election outcomes to reflect the will of themajority. The FDA does not support the idea that incumbent or previously successful partiesshould be favoured in media coverage in a current election as this could create bias based merelyon past results, and potentially weaken the process of capturing the will of the people in thepresent. In addition, the FDA does not support unlimited freedom of broadcast and press mediaand believes there is a misleading connection between this and democracy. The purpose ofdemocratic elections is to capture as accurately as possible the will of the people from districts.Broad and balanced electoral discourse creates an informed electorate and supports the will ofthe people. The FDA concedes that media ownership concentration laws aimed to producepluralistic ownership could cancel out any imbalance in political content and provide equitablecoverage of all registered political parties.Voters (audit section four)The citizens who are eligible to vote and their opportunity to express that vote and a politicalvoice through articles, letters to editors, blogs, advertisements, spoken word etc. in the publicdomain. Voter influence applies to the period before, during, and after an election.In the context of the FDA electoral fairness audit, which focuses on electoral process, votersinclude:1) Laws and regulations on freedom of speech and assembly.2) Laws on the registration requirements for voters.3) Laws on voter assistance at the polling booth.4) Laws on the inclusion of minorities in the electoral process.In the context of the FDA electoral fairness audit, voters may be impacted by the election contentof media, and candidates and parties and electoral finance law. For example, no cap oncontributions to candidates and parties will affect voters because no cap favors voters with morefinancial wealth, and thereby the lack of cap creates electoral inequity and imbalance amongvoters.
  9. 9. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 9 of 82Chapter One: Electoral FinanceThis chapter focuses on American electoral finance laws and the FDAs audit of them in terms ofelectoral fairness. Based on the political concepts of egalitarianism and political liberalism, theFDA team audits electoral finance laws according to their equity for registered candidates,parties, and voters (see Appendix on page 76 for further explanation). The FDA team audits fromthe standpoint of a peoples representative democracy. Table 1 below shows the FDA‘s auditvariables, their corresponding audit weights, and results:Table 1Electoral FinanceSection Variables% SubsectionAudit WeightNumericalSubsection AuditWeightAuditResults% ResultsElectoral FinanceTransparency20% 2.0 2.0 100%Contributions toCandidates & Parties15% 1.5 1.5 100%Caps on Contributionsto Candidates & Parties20% 2.0 0.3 15%Campaign ExpenditureLimits22.5% 2.25 0.0016 0.071%Caps on Third-partyExpenditures12.5% 1.25 0.01 0.8%Legislative Process 10% 1.0 1.0 100%Variables from OtherSectionsn/a n/a n/a n/aTotal 100% 10 4.825 48.25%The FDA chose these subsections because they represent core areas of electoral finance. Theaudit of electoral finance includes examination of American electoral finance legislation and theapplication of legislative research to the FDA matrices. Matrix scoring is based on an overallscore of 0 to 10 out of 10.What follows are the audit questions, legislative research, and audit findings:Electoral Finance TransparencyAudit Questions1) Are candidate and party finances transparent to the public?2) Are candidate and party finances transparent to candidates and parties only?3) Are candidate and party finances transparent to the government only?
  10. 10. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 10 of 82Legislative ResearchIn an election year, presidential candidates are required to report monthly when contributionsaggregate $100,000 or expenditures aggregate $100,000 or anticipate the aggregations during thecalendar year. In addition, the presidential candidates generally are required to submit pre-election reports, post-election reports, and year end reports. The reports must containdesignations, record of contributors and disbursements, and statements (Federal ElectionCampaign Act, Articles 434 2(A), 3 (A)).In an election year, presidential candidates are required to disclose intent on using personalfunds, and expenditures from personal funds over $10,000 (Federal Election Campaign Act,Article 434 (B)3).In non-election years, political committees are required to submit quarterly financial reports.These reports must contain all designations, statements, record of disbursements, and reports,including the name and address of contributors donating in excess of $50 and identification ofany person who contributes in excess of $200 (Federal Election Campaign Act, Articles 432, 4342(B)).Campaign committees must disclose name banking institutions, safety deposit boxes and anyother depositories (Federal Election Campaign Act, Article 433).Disbursements other than petty cash disbursements must be made using cheques from designateddepositories (Federal Election Campaign Act, Article 432 (h)(1)).Campaign finance reports filed by registered political committees such as candidates campaigns,party committees, and PACs are available for public inspection and copying in the FederalElection Commissions Public Records Office. Reports are made public within 48 hours ofsubmission (Guide to Researching Public Records, 2013).The public may access the Federal Election Commissions database which contains indexes andtypes of campaign activities such as large contributions and PAC contributions. The database isalso accessible from the Secretary of States office in many state capitals (Guide to ResearchingPublic Records, 2013).In addition, the Federal Election Commission makes available to the public statistical summariesof reported campaign activities, FEC advisory opinions, personal financial statements filed byPresidential candidates, audit reports etc. (Guide to Researching Public Records, 2013).Copies of records and documents are available during normal business hours at the PublicRecords Office. FEC library staff members are present to assist visitors in finding documents andusing computers. Document requests can be made by telephone and email, and some documentsare available via the FECs automated Faxline system (Guide to Researching Public Records,2013).Reports and statements pertaining to Presidential candidates shall be kept by the Federal ElectionCommission for 10 years (Federal Election Campaign Act, Article 438 (5)).
  11. 11. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 11 of 82The Federal Election Commission shall maintain a website containing election related reportsand information which is accessible by the public (Federal Election Commission Act, Article438a).The Federal Election Commission has the authority to conduct audits and field investigations ofpolitical committee required to file a report (Federal Election Campaign Act, Article 438 9(b)).Audit FindingsThe finances of candidates and parties are transparent to the public.Contributions to Candidates and PartiesAudit Questions1) Are contributions restricted to citizens?2) Are contributions disallowed by foreigners, public institutions, and charities?3) Are anonymous contributions set at a reasonable level?Research FindingIn 2013 the United States has an estimated $33,050 per capita disposable income (IBISWorldBusiness Environment Report, 2013).Legislative ResearchThe state disallows contributions from national banks, corporations, and labor organizations(Federal Election Campaign Act, Article 441b(a)).The state disallows contributions from registered holding companies and subsidiary companies(Federal Election Campaign Act, Article, 441b(h)).The state disallows contributions from any person who enters into contract with the U.S.government, including any department or agency (Federal Election Campaign Act, 441c).The state disallows contributions from foreign nationals (which include foreign governments,foreign political parties, and any citizen who is not a U.S. citizen, national, and legally admittedinto the country (Federal Election Campaign Act, Article 441e).The state disallows contributions from U.S. citizens in the name of another person (FederalElection Campaign Act, Article 441f).The state disallows contributions from individuals who are 17 years of age or younger (FederalElection Campaign Act, Article 441k).The state disallows contributions from incorporated charities and public institutions (federallychartered corporations) (Federal Election Campaign Act, Article 441b(a) and Code of FederalRegulations, Title 11 – Federal Elections, Article 114.2).
  12. 12. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 12 of 82Corporations, trade unions, and other organizations may create PACs which are allowed tocontribute to candidates. However, only individuals may contribute funds voluntarily to PACs(Federal Election Campaign Act, Article 441c(2)(b)); Citizens United v. Federal ElectionCommission, 2010).Cash contributions must not exceed $100 (Federal Election Campaign Law, Article 441g).Anonymous contributions cannot exceed $50 (Federal Election Campaign Act, 110.4(c)(3)).Audit FindingsThe FDA auditors deem full marks for the three sections: contributions are restricted to citizens;foreigners, public institutions and corporations are disallowed from making contributions;maximum anonymous contribution is $50.00 which is well within 10 percent of U.S. per capitadisposable income level of $3,050.00 (the FDA‘s maximum reasonable amount of contributions)(FDA Talking Points Series: 10 Percent Rule, 2013), and set low enough as to minimize theeffect of electoral finance wrongdoing.Caps on Contributions to Candidates and PartiesAudit Questions1) Are the caps on candidates and parties contributions reflective of per capita disposableincome level?2) Are the caps on candidates own contributions reflective of per capita disposable incomelevel?Legislative ResearchIn Table 2 are the contribution limits per legal contributors:
  13. 13. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 13 of 82Table 2Contribution Limits 2011-12To eachcandidateorcandidatecommitteeper electionTonationalpartycommitteepercalendaryearTo state,district &local partycommitteepercalendaryearTo anyotherpoliticalcommitteepercalendaryear1Special LimitsIndividualmay give$2,500* $30,800*$10,000(combinedlimit)$5,000$117,000* overallbiennial limit:$46,200* toallcandidates$70,800* toall PACsand parties2National PartyCommitteemay give$5,000 No limit No limit $5,000$43,100* to Senatecandidate percampaign3State, District &Local PartyCommitteemay give$5,000(combinedlimit)No limit No limit $5,000 No limitPAC(multicandidate)4may give$5,000 $15,000$5,000(combinedlimit)$5,000 No limitPAC(notmulticandidate)may give$2,500* $30,800*$10,000(combinedlimit)$5,000 No limitAuthorizedCampaignCommitteemay give$2,0005No limit No limit $5,000 No limit* These contribution limits are indexed for inflation.1. A contribution earmarked for a candidate through a political committee counts against theoriginal contributors limit for that candidate. In certain circumstances, the contribution may alsocount against the contributors limit to the PAC. 11 CFR 110.6. See also 11 CFR 110.1(h).2. No more than $46,200 of this amount may be contributed to state and local party committeesand PACs.3. This limit is shared by the national committee and the national Senate campaign committee.4. A multicandidate committee is a political committee with more than 50 contributors which has
  14. 14. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 14 of 82been registered for at least 6 months and, with the exception of state party committees, has madecontributions to 5 or more candidates for federal office. 11 CFR 100.5(e)(3).5. A federal candidates authorized committee(s) may contribute no more than $2,000 perelection to another federal candidates authorized committee(s). 11 CFR 102.12(c)(2).(Contribution Limits, 2012).Publicly funded presidential candidates cannot exceed $50,000 in contributions from personalfunds which includes funds from immediate family (Public Funding of Presidential ElectionBrochure, 2012).Privately funded presidential candidates have no limit on contributions from personal funds.Contributions from personal funds must be reported as per the Federal Election Campaign Act(Federal Election Commission, Contribution Limits, 2012). [In an election year, presidentialcandidates are required to disclose intent on using personal funds, and expenditures frompersonal funds over $10,000 (Federal Election Campaign Act, Article 434 (B)3).]Congressional candidates‘ contributions from personal funds, including loans and advances totheir own campaigns, are not subject to any limit (Federal Election Campaign Act, 110.10(a)).Audit FindingsThere caps on candidates‘ and parties‘ contributions; these caps, including a maximumindividual contribution of $46,200, are unreflective of U.S. per capita disposable income level;there are caps on contributions by candidates to their own campaign; publicly funded presidentialcandidates are the only federal candidates subject to a cap of $50,000 on their personalcontributions; the FDA auditors determine that the $50,000 is unreflective of 10 percent of U.S.per capita disposable income, and the total number of publicly funded presidential candidates isvery small in comparison to privately funded presidential candidates and congressionalcandidates.Through FDA consensus and Desjardins‘ household budget calculator, the FDA determined that10 percent of per capita disposable income is a reasonable maximum contribution amount(Determine How Much to Allocate to Each Expense, 2013; FDA Talking Points Series: 10Percent Rule, 2013). The 10 percent contribution amount takes into consideration otherexpenditures such as housing, food, services like electricity and heat, clothing, and health.The FDA deems that 0.2 percent of all federal candidates have caps on their personalcontributions. For example, in 2008 there were nine publicly funded presidential candidates, andthe FDA believes that there are about 4,280 congressional candidates in each full election cycle.(4,280 is based on an average of eight candidates running in the 535 congressional memberelections.)
  15. 15. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 15 of 82Table 3Total Score Out Of: 0.5Per CapitaDisposableIncome (in $)10% of PerCapitaDisposableIncomePopulation withIncome$33,050 $3,305 238,150,00010% of Per CapitaIncome $3,359Caps on Donations (in$) $50,000Score Based on Data 0.0661 (Maximum score available is 1.0)Based on 0.2% ofCandidates HavingCaps 0.0001 (Maximum score available is 0.5)Score 0.0001Campaign Expenditure LimitsAudit Questions1) If there are campaign expenditure limits on candidates and parties, are they set high enoughand still reasonably attainable by all registered candidates and parties?2) If there are public subsidies or other financial instruments, do they create an equal level ofcampaign finances for candidates and parties?Legislative ResearchPublic subsidies of parties are based on the percentage of total votes received in previouselection (Public Funding of Presidential Election Brochure, 2012).Publicly funded Presidential candidates are subject to campaign expenditure limits. Privatelyfunded Presidential candidates are not subject to expenditure limits (Federal ElectionCommission, Public Funding of Presidential Election Brochure, 2012).U.S. taxpayers have the option to decide whether or not to direct $3 of their tax to thePresidential Election Campaign Fund on their tax returns (Presidential Election Fund, 2012).Funds in the Presidential Election Campaign Fund are divided up in three ways:1) Primary matching payments are based on the government matching individual contributionsto a candidate, and only the first $250 of a contribution is matchable. To be eligible formatching, a candidate needs to raise more than $5,000 in each of 20 different states.2) General election grants are for Republican and Democratic candidates who win their partiesnomination. The candidates are eligible to receive $20 million, adjusted for cost-living-adjustment to cover campaign expenses. In 2008, candidates could receive $84.1 million.Third party candidates are eligible to receive a percentage of this grant if the candidates
  16. 16. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 16 of 82receive at least 5 percent of the popular vote. (The 2008 expenditure limit in 2008 was$88.45 million.)3) Party convention grants are for major political parties for their national Presidentialnominating convention. The parties are eligible to receive $4 million, adjusted for inflation.In 2008, the major parties received $16.82 million. Third parties are eligible for the grant ifthey received at least 5 percent of vote in the previous Presidential election. The FederalElection Commission defines a majority party as 25% or more of the total popular votes inthe previous election; minority party as between 5% or more and less than 25% of the totalpopular vote in the previous election; new party as a party which did not participate in theprevious election (Presidential Election Fund, 2012).The 2012 general campaign limit for publicly funded candidates is $91.2 million. The 2012primary limit for publicly funded candidates is $45.6 million (Presidential Spending Limits for2012).Publicly funded candidates have a campaign national expenditure limit of $20,000,000 (subjectto cost of living adjustment) and a primary expenditure limit of $10,000,000 and in anyone Stateshall not exceed either 16 cents times the number of voters in the State or $200,000, whichever isgreater (Presidential Election Fund, 2012).The national committee of a political party shall not make any expenditure in connection withthe general election campaign of any Presidential candidate affiliated with the party in excess of2 cents times the the total number of US voters (Any expenditures made on behalf on VicePresident candidates are deemed the same as expenditures for Presidential candidates) (FederalElection Campaign Act, Article 441a).The Federal Election Campaign identifies three types of political parties: major, minor, and new.Major parties have 25% or more of popular vote in the previous election; major parties areentitled to equal payments of public monies.Minor parties have between 5% and 25% of the popular vote; minor parties receive public fundsbased on popular vote in previous election in comparison to the popular vote major partiesreceived.New parties receive public funds based on popular vote in comparison to the popular vote formajor parties.New parties are neither major nor minor parties (Public Funding of Presidential ElectionBrochure, 2012).In the general election campaign, 20% of fund raising revenue for presidential candidates ofminor and new parties are exempt from the national primary and general election limit (PublicFunding of Presidential Election Brochure, 2012).There are no expenditure limits on congressional candidates and committees (FEC CampaignGuide: Congressional Candidates and Committees, 2011).
  17. 17. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 17 of 82There are no public subsidies for congressional candidates and committees (FEC CampaignGuide: Congressional Candidates and Committees, 2011).Audit FindingsThere are no campaign expenditure limits for candidates and parties with the exception ofpublicly funded presidential candidates. Since publicly funded presidential candidates compriseabout 0.2 percent of federal candidates, the FDA auditors determine a score of 0.001.The FDA auditors determine that the maximum expenditure limit of $91,200, 000 is unreflectiveof per capita disposable income:Table 4Total Score Out Of: 1.0MaximumExpenditureper ElectorPopulationwithIncome$0.383 238,150,000Maximum Campaign Expenditure Limit(in $) $ 91,200,000Per Capita Disposable Income (in $) $ 33,050Percentage of Expenditure Limit perCitizen 271550%Score 0.0004 (Maximum score available is 1.0)Public subsidies only apply to approximately 0.2 percent of federal candidates.The FDA auditors use professional judgment on the score regarding public subsidies to partiesand whether these are equitable for all parties. The FDA has deemed that only 0.2 percent of allcandidates may receive subsidies of some sort and, thus, the FDA has obtained a score of 0.0005based on 0.2 percent of candidates having the ability to receive subsidies of some sort. Therefore,based on these results, the FDA has obtained a score of 0.001 times 0.0004 equals 0.0 for theequality level for candidates and parties, as established through score two above.
  18. 18. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 18 of 82Caps on Third-party SpendingAudit Questions1) If there is third party spending, is it restricted to citizens only?2) If there are caps on third party spending, are they high enough and reasonably attainable byall adult citizens?3) Are there public subsidies, or other financial instruments, that create an equitable level ofthird party spending?Legislative ResearchIndividuals, corporations, and trade unions are allowed to spend electorally as third parties(Citizens United v. Federal Election Commission, 2010).There is no limit on expenditures by third parties (Citizens United v. Federal ElectionCommission, 2010).Separate segregated funding (from political committees) by a corporation, labor organization, orindividual for political purposes are not considered contributions to political committees. Thereis a $5,000 contribution limit for PACs (Quick Answers to General Questions, 2012).A nonconnected committee becomes a political committee when its contributions orexpenditures are in excess of $1,000 in a calendar year (Federal Election Campaign Law, Article100.5(a); Campaign Guide for Nonconnected Committees, 2012).The FDA found no financial mechanisms, or otherwise, which help create an equal level of thirdparty spending.Sources of contributions for Corporation PACs are limited to executives, shareholders and theirfamilies; labor PACs are limited to labor members; nonconnected PACs may receivecontributions from the general public; the State bans corporations and labor organizations fromcontributing from their treasuries to PACs; corporations and labor organization may cover theadministrative costs of their affiliated PACs; nonconnected PACs must cover administrationcosts from the funds they raise (SSFs and Nonconnected PACs, 2012).Super PACs, which do not contribute to candidates, political parties, or other PACs, can receiveunlimited contributions from individuals, corporations, and labor organizations. Super PACs arepermitted to participate in political activity independent of candidates and parties campaigns(Citizens United v. Federal Election Commission, 2010).Audit FindingsThere are no caps on independent, non-connected third-party spending; there is no ban oncorporations and labor unions from third-party spending; there are no public subsidies or otherfinancial instruments to create a level playing field of third-party spending.
  19. 19. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 19 of 82Legislative ProcessAudit Question1) Is there an effective legislative process to enforce electoral finance laws?Legislative ResearchThe United States has a legislative process to enforce electoral finances laws. The legislativeprocess is comprised of transparency of candidate, party, and PAC contributions as well asexpenditures, and criminal penalties for illegal electoral finance acts (Federal Election CampaignAct, Article 9012; Guide to Researching Public Records, 2013; Federal Election Campaign Act,Articles 432, 433, 434, 438).Any person, including any authorized committee or officer or member of such committee, whoviolates the Presidential and Vice Presidential campaign expenses and nominating convention inexcess will be fined no more than $5,000 or imprisoned no more than 1 year, or both (FederalElection Campaign Act, Article 9012(1) and 9012 (2)).Any person, including any officer or member of a political committee, who violates thecampaign expenditure limits for publicly funded candidates shall be fined no more than $25,000or imprisoned no more than 5 years, or both (Federal Election Campaign Act, Articles 9035 and9042).Any person who uses contributions other than to defray qualified campaign expenses, repayloans or restore funds used for campaign expenses will be fined no more than $10,000 orimprisoned no more than 5 years, or both (Federal Election Campaign Act, Article 9042 (2)).Any person who makes false, fictitious, or fraudulent financial evidence, books, or informationto the Federal Election Commission shall be fined no more than $10,000, or imprisoned no morethan 5 years, or both (Federal Election Campaign Act, Article 9042 (C) False statements).Any person who receives kickbacks and illegal payments for contributions shall be fined nomore than $10,000, or imprisoned for no more than 5 years, or both. In addition, any person whoreceives a kickback or illegal payment in connection with any qualified election expense of acandidate or his authorized committee shall pay to the Secretary of the Federal ElectionCommission an amount equal to 125% of the kickback and payment received (Federal ElectionCampaign Act, Article 9042, (D) Kickbacks and illegal payments).The Federal Election Commission imposes fines for late financial reports. The fines aredetermined under the Administrative Fine Program. Fines are calculated based on electionsensitivity, late file or not filed, level of financial activity on the relevant report, and numberprevious violations. Each previous violation will increase the fine by 25%. Based on examplesprovided, fines may range from $100 to $3,500 (How the Administrative Fine Program Works,2012).The Federal Election Commission has jurisdiction to impose civil fines for violations of theFederal Election Campaign Act. The fines are determined through a conciliation process. Someviolations may result in imprisonment, and the Federal Election Commission may refer criminal
  20. 20. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 20 of 82violations to the US Department of Justice. The US Sentencing Commission determines thesentencing of civil fines. Civil fines vary based on the severity of the violation, including theamount of excessive funds involved (Quick Answers to Compliance Questions, 2012). Forexample, in the Treffinger case, Treffinger, his 2000 New Jersey U.S. Senatorial campaigncommittee, and his treasurer Robert A. Mathers, agreed to pay a fine of $171,000 for excessivecontributions. In the Hynes case, the committee for Daniel Hynes‘ 2004 Illinois DemocraticSenate primary campaign, and its treasurer, Jeffrey C. Wagner, agreed to pay a civil penalty of$76,500 for excessive contributions. In the Turnham case, Joe Turnham for CongressCommittee, and Pete Turnham (the candidate‘s father) have agreed to pay a $50,000 civil penaltyfor excessive contributions (Hynes Campaign Pays $76,500 Penalty for Excessive Contributions,2006; Treffinger and Others to Pay $171,000 Civil Penalty for Excessive Contributions, 2006).Audit FindingsThe FDA auditors use professional judgment on the score regarding reasonable legislativeprocesses to enforce electoral finance laws. The FDA auditors found comprehensive legislativeprocess to enforce electoral finance laws, including fines reflective of the severity of the offenseand prison time up to five years. Generally, the more money involved in an electoral financewrongdoing, the higher the fine will be.Total score for the electoral fairness on electoral finance: 48.25 percent out of 100 percent.
  21. 21. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 21 of 82AnalysisThe FDA auditors measured a failing score of 48.25 percent for the American federal electoralfinance legislation. The FDA auditors identified a strong process for electoral financetransparency and enforcement, and citizen only contributions to candidates and parties. However,these aspects are offset by caps on contributions (to candidates and parties), which areunreflective of per capita disposable income, create no expenditure limit on congressional andprivately funded presidential candidates, do not cap independent third-party expenditure, andcontain no cap on contributions to independent third-parties.The FDA summaries its main findings on the American federal electoral finance laws1) Electoral financial transparency is canceled out by laws favoring wealthy interests.Transparency is a neutral element.2) Citizen only contributions to candidates and parties is cancelled out by caps on contributions,which are unreflective of per capita disposable income, do not create campaign expenditurelimits for congressional and privately funded presidential candidates, and do not capcontributions by citizens and corporations to independent third-parties.3) A sound legislative process to enforce electoral finance laws, like transparency, ismeaningless if the laws to be enforced favor minority and special interests over the interestsof the people.Legislative process is only as effective as the laws it is enforcing.There are significant gaps in the U.S. electoral finance legislation which favor special andminority interests1) No expenditure limit on congressional candidates and privately funded presidentialcandidates: this provision favors candidates who are better fund raisers and encouragesinfluence by wealthy special and minority interests.2) Contributions are unreflective of per capita disposable income: this provision favors wealthycitizens who can afford, for example, the $46,200 limit on contributions to multiplecandidates.3) No cap on contributions to independent third-parties: this provision favors wealthyindividuals, corporations, and labor unions, and provides a means for special and minorityinterests to influence election discourse, and thus, election outcomes.4) No cap on personal contributions by congressional candidates and privately fundedpresidential candidates: this provision favors wealthy candidates.5) Expenditure limit on publicly funded presidential candidates and cap on personalcontributions by publicly funded presidential candidates are unreflective of per capitadisposable income: this provision favors wealthy, publicly funded presidential candidates andcandidates who are better able to fund raise, and thereby, potentially allows for influence byspecial and minority interests on these candidates.
  22. 22. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 22 of 82Chapter Two: Media Election CoverageThis chapter focuses on American‘s media laws and the FDAs audit of them. Based on theconcepts of egalitarianism and political liberalism, the FDA audit team examined media lawsaccording to the standard of broad and balanced political coverage before, during and after acampaign period (see Appendix for further explanation). Table 5 below shows the FDA‘s auditvariables, their corresponding audit weights, and results:Table 5Media ElectionCoverage SectionVariables% SubsectionAudit WeightNumericalSubsection AuditWeightAuditResults% ResultsBroad and BalancedMedia Election Coverage30% 3.0 0.0 0.0%Media Ownership 15% 1.5 0.0 0.0%Survey/Polls 5% 0.5 0.25 50%Freedom of Media 40% 4.0 4.0 100%Press Code ofPractice/Conduct10% 1.0 0.0 0.0%Variables from OtherSectionsn/a n/a n/a n/aTotal 100% 10 4.25 42.50%Broad and Balanced Media Election CoverageAudit Questions1) During the campaign period, is the media (private and public) required legally topublish/broadcast broad/balanced coverage of registered candidates and parties?2) Outside of the campaign period, is the media legally required to publish/broadcastpluralistic/balanced coverage of registered parties?3) If the media is legally required to publish/disseminate broad and balanced political coverage,are there reasonable monitoring and penalty mechanisms in place?Legislative ResearchAny cost incurred in a news story, commentary, or editorial by media (broadcaster, press, website, magazine, or other periodical) is not a political contribution if the media organization is notowned or controlled by any political party, political committee, or candidates (Code of FederalRegulations, Section 100.29).There is no legal requirement for equal opportunity for a newscast, interview, documentary (ifthe appearance of a candidate is incidental to the documentarys subject matter), or news event,including debates, political conventions and related incidental activities. Media has an obligationto present news in the ―public interest‖ and ―afford reasonable opportunity for the discussion ofconflicting views of issues of public importance‖ (Code of Federal Regulations, Section 100.29).
  23. 23. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 23 of 82Communications by state or local candidates that do support or oppose a candidate are notconsidered to be electioneering communications (Code of Federal Regulations, Section 100.29).Electioneering communications are limited to paid programming and only apply to the 60 dayperiod 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, Section100.29).Noncommercial educational broadcasting stations may support or oppose any candidate foroffice. 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 mediaexemptions apply to all bloggers and others who communicate on the internet unless the facilityincluding website is owned or controlled by a political party, candidate or a political committee(Internet Communications and Activity, 2012).Any corporation or labor organization may donate funds to support a debate conducted by anonprofit organization. The debate must not support or oppose any candidate or party, besponsored by a broadcaster, newspaper, magazine, other circulation periodical publication, andinclude at least two candidates who meet face to face, does not promote one candidate over theother. In a primary election, organizations staging a debate may restrict candidates to thoseseeking nomination of one party, and in a general election may not use nomination of a particularparty as the sole criterion for debate participants. Staging organizations must use preestablishedobjective criteria to determine participants (Code of Federal Regulations, Section 114.4(f)).Audit FindingsThe FDA auditors found no legislation requiring the media to provide broad and balancedpolitical coverage during the 60 day campaign period or outside of the campaign period.Media Ownership Concentration LawsAudit Questions1) If there are media concentration laws, are they effective in causing a plurality of politicaldiscourse?2) If there is no legal requirement of media plurality, impartiality, and balanced content ormedia ownership concentration laws, are there any other laws that are effective in causing aplurality of political discourse before and during an election period?
  24. 24. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 24 of 82Legislative ResearchThere are no U.S. media ownership concentration laws. The U.S. media concentration isregulated by U.S. general antitrust laws. U.S. antitrust laws are rooted in the Sherman AntitrustAct (1890), which provides remedy against monopoly or attempt to monopolize. The Act doesnot necessarily ban monopolies; it bans monopolies, which stem from anti-competitive conductsuch as price fixing, bid rigging, or agreed market allocation by competitors (StatutoryProvisions and Guidelines of the Antitrust Division, 2012; Sherman Antitrust Act, 2012).Audit FindingsThe FDA auditors found no legislation limiting media ownership concentration. The U.S.Antitrust Laws, which provide a remedy against monopoly and/or attempts to monopolize, haveno impact on media ownership concentration unless the concentration derives from anti-competitive conduct.Surveys/PollsAudit Question1) Are there reasonable public disclosure requirements on surveys and polls in terms of theirmethodology, data, and funder?Legislative ResearchThe FDA researches could find no legislation on the public discloser of the methodology anddata sources of survey and polls. However, associations such as the National Council on PublicPolls (NCPP) and American Association for Public Opinion Research (AAPOR) advocate publicdisclosure requirements for their members.The NCPP is an association of polling organizations that sets professional standards for publicopinion pollsters. The association recommends three levels of disclosure. The first level calls forone of its member associations to publicly release information, such as sponsorship, samplingmethod used, population and size of sample, and survey methods. The second level of disclosurepertains to specific written requests regarding any survey findings publicly released by NCCPmembers. These requests can include the exact wording of an introduction, details of anyincentives given to survey participants, and any description of weighting procedures togeneralize data. Finally, the third level of disclosure encourages its members to release rawdatasets, and post complete survey questions used in their surveys (Principles of Disclosure,2012).The Standards of Disclosure in the AAPOR‘s Code of Professional Ethics & Practices states thatthe final reports of members will include the sponsors, conductors, and all original fundingresources. The Code also requires the disclosure of exact wording of questions, descriptions ofsample sizes and design, as well as the method and dates of data collection. In the event furtherinformation is requested concerning any given report, the members will have 30 days to providegreater details concerning sample design, summaries of dispositions, any relevant stimuli, andthe procedures undertaken to verify data (Code of Professional Ethics & Practices, 2010).
  25. 25. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 25 of 82Electioneering communications are limited to paid programming and only apply to the 60 periodprior 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, Section100.29).Broadcast political advertisements must display photographic or similar images of the candidate,a statement identifying the candidate, the candidates approval for the advertisement, and thecandidates authorized committee, which paid for the broadcast (The Public and Broadcasting:How to Get the Most Service from Your Local Stations, 2008; U.S. Code, Title 47, Section 315).Radio political advertisements must include a personal statement from the candidate, whichidentifies the candidate as well as the office the candidate is seeking, and indicates that thecandidate approved of the broadcast (The Public and Broadcasting: How to Get the Most Servicefrom Your Local Stations, 2008; U.S. Code, Title 47, Section 315).Paid political statements made through any broadcasting station, newspaper, magazine, outdooradvertising facility, mailing, or any other type of general public political advertising must clearlydeclare the authorized political committee or other persons who paid for communication as wellas who authorized the other persons, such as a candidate or authorized political committee. Iftransmitted by television, the statements must include either an unobscured, full-screen views ofthe candidate or agent of the candidate making the statement, a voice-over, or both, and shallalso appear in a readable manner with a reasonable degree of color contrast between thebackground and the printed statement for a period of at least 4 seconds. If the political statementis not authorized by a candidate or political committee, the communication must state the nameand permanent street address, telephone number or World Wide Web address, of the person whopaid for the message and must also state that it is not authorized by a candidate or politicalcommittee (Code Federal Regulations, Section 441d).Audit FindingsThe FDA auditors found no legislation which required disclosure standards for survey andpolling organizations. Although there are private organizations which establish survey and polldisclosure standards, these standards are voluntary and contingent upon membership in theorganizations. The score of 0.25 reflects the fact that disclosure standards exist and that somepolling and survey organizations likely adhere to them.
  26. 26. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 26 of 82Freedom of the MediaAudit Question1) Does constitutional or legislative law establish freedom of the media (including journalists)?Legislative ResearchAny corporation or labor organization may donate funds to support a debate conducted by anonprofit organization. The debate must not support or oppose any candidate or party, must besponsored by a broadcaster, newspaper, magazine, and/or other circulation periodicalpublication, must include at least two candidates who meet face to face, and does not promoteone candidate over the other. In a primary election, organization staging debate may restrictcandidates to those seeking nomination of one party, and in a general election may not usenomination of particular party as the sole basis for criterion for debate participants. Stagingorganization must use pre-established objective criteria to determine participants (Code ofFederal Regulations, Article 114.4(f)).Broadcast stations must provide reasonable access to federal candidates, during all stationsnormal broadcast schedule, including television prime time and radio drive time. The onlyexception to equal access is during bona fide news programming (The Public and Broadcasting:How to Get the Most Service from Your Local Stations, 2008; U.S. Code, Title 47, Article 315).Broadcast stations must provide equal airtime and equal opportunities to all registered federalcandidates. The only exception to equal airtime and equal opportunities is during bona fide newsprogramming, such as the appearance of a candidate on bona fide newscast, interview,documentary, or on the spot news event (including debates, political conventions and relatedincidental activities) (The Public and Broadcasting: How to Get the Most Service from YourLocal Stations, 2008; U.S. Code, Title 47, Article 315).Any cost incurred in a news story, commentary, or editorial by media (broadcaster, press, website, magazine, or other periodical) is not a political contribution if the media organization is notowned or controlled by any political party, political committee, or candidates (Code of FederalRegulations, Article 100.29).There is no legal requirement for equal opportunity for a newscast, interview, documentary (ifthe appearance of a candidate is incidental to the documentarys subject matter), or news eventincluding debates, political conventions and related incidental activities. Media has an obligationto present news in the ―public interest‖ and ―afford reasonable opportunity for the discussion ofconflicting views of issues of public importance‖ (Code of Federal Regulations, Article 100.29).Noncommercial educational broadcasting stations may support or oppose any candidate foroffice. 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 mediaexemptions apply to all bloggers and others who communicate on the internet unless the facilityincluding website is owned or controlled by a political party, candidate or a political committee(Internet Communications and Activity, 2012).
  27. 27. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 27 of 82The U.S. Congress has legislative power (U.S. Constitution, 2012, Article I, Section 1), and theU.S. Congress must not make laws which prohibit or abridge freedom of speech, freedom of thepress, or the right of the people peaceably to assemble (U.S. Constitution, 2012, FirstAmendment).Citizens of the United States cannot be denied life, liberty, or property without due process oflaw, and equal protection of the laws (U.S. Constitution, 2012, Fourteenth Amendment, Section1).All persons born or naturalized in the United States are citizens of the United States (U.S.Constitution, 2012, Fourteenth Amendment, Section 1).Audit FindingsThe FDA auditors found nothing in the U.S. Constitution and legislation that wouldunreasonably limit the freedom of the press.Press Code of Practice/ConductAudit Questions1) Does a Code of Practice/Conduct that supports impartial, balanced electoral coverage guidethe press?2) If a Code of Practice/Conduct that supports impartial, balanced electoral coverage guides thepress, is the Code of Practice/Conduct enforceable?Legislative ResearchThe American Press Association has a code of conduct for journalists and photographers. TheAPA Code of Conduct does not cover elections, nor does it include impartial and balancedelection coverage. Members of the APA are expected to abide by the APA Code of Conduct(Code of Conduct Journalists and Photographers, 2012).The American Society of Newspaper Editors has a statement of principles. The Statement ofPrinciples includes impartiality in terms of distinguishing between fact and opinion. There areprinciples that pertain to elections or require balanced coverage. Each newspaper within theASNE has its own code of ethics. The FDA counted 34 different codes of ethics. The New YorkTimes is committed to be as impartial as possible ―with fear or favor‖, but there is norequirement that the newspaper have balanced election coverage. The FDA found no ethicalrequirement on any of the newspapers in the ASNE to have broad and balance electoral coverage(Code of Conduct, 2012).The U.S. Congress has legislative power (U.S. Constitution, 2012, Article I, Section 1), and theU.S. Congress must not make law which prohibits or abridges freedom of speech, or the press, orright of the people peaceably to assemble (U.S. Constitution, 2012, First Amendment).
  28. 28. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 28 of 82The freedom of the media cannot be regulated within extremes. A legislated press code ofconduct would be inconsistent with the U.S. Constitution, First Amendment (Citizens United v.Federal Election Commission, 2010).The FDA researchers found no legislated press code of conduct.Audit FindingsThe FDA auditors found no legislation requiring a press Code of Practice/Conduct for impartial,balanced electoral coverage. Although private press organizations have a Code ofConduct/Ethics, adherence is voluntary. The FDA researchers examined 34 Code ofConducts/Ethics by members of the American Society of Newspaper Editors and found noinstance of Code of Conduct/Ethics requiring impartial and/or balanced electoral coverage.Total score for the electoral fairness on media election coverage: 42.5 percent out of 100percent.
  29. 29. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 29 of 82AnalysisThe FDA auditors measured a failing score of 42.50 percent for American federal legislationpertaining to the media election coverage. The focus of this audit section is on media electioncoverage itself before and during the 60 day campaign period. The media election coveragesection received the lowest score of the four audit sections.Although the American media has freedom of expression, there are minimal checks on thisfreedom. As a result, the American media operates in a Darwinian-like fashion, in which themost powerful media corporations have the most influence over the public. This approach isproblematic during elections because it may encourage narrow and imbalanced election coverageas illustrated by the FDA‘s media study of the 2012 U.S. Presidential election. The media studyfocused on the last 32 days of the U.S Presidential election and factored in 7,921 data pointsfrom the U.S. national television, radio, and newspaper sectors, including online content from thesectors (FDA Media Study of the U.S. Presidential Election, 2012).Ranking of American national media total coverage from the FDA Media StudyTable 6Presidential Candidates Total Media Coverage1. Barack Obama 54%2. Mitt Romney 44.75%3. Gary Johnson 0.62%4. Jill Stein 0.30%5. Virgil Goode 0.27%6. All Other Candidates/Parties 0.09%As a consequence of narrow and imbalanced coverage, those persons who control mediacorporations can potentially influence the outcome of elections.The FDA summaries its main findings on the American federal media laws1) No legislative or even voluntary requirement for broad and balanced election coverageduring the 60 day campaign period.2) No legislative caps on media ownership concentration.3) Only private, voluntary standards for disclosure of public surveys and polls.4) No legislative or even voluntary press code of conduct on broad and balanced coverageduring the 60 day campaign period.
  30. 30. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 30 of 82Consequently, the American federal electoral system allows1) Excessive media ownership concentration in the press, radio, and television sectors as long asthe ownership concentration is not the result of anti-competitive practices;2) Narrow and imbalanced media coverage during elections;3) No legislative disclosure standards on surveys and polls.
  31. 31. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 31 of 82Chapter Three: Candidates and PartiesThis chapter focuses on American laws pertaining to candidates and parties. The FDA audit teamexamines election laws according to their equity for registered candidates and parties (seeAppendix for further explanation). Table 7 below shows the FDA‘s audit variables, theircorresponding audit weights, and results:Table 7Candidates & PartiesSection Variables% SubsectionAudit WeightNumericalSubsection AuditWeightAudit Results % ResultsCampaign Period 2% 0.2 0.2 100%Methodology for ElectionWinners2% 0.2 0.0 0.0%Electoral Boundaries 2% 0.2 0.0 0.0%Process of Government 10% 1.0 1.0 100%Registration of Candidates 2% 0.2 0.1 50%Freedom of Expressionand Assembly20% 2.0 2.0 100%Registration of Parties 2% 0.2 0.1 50%Electoral Complaints 3% 0.3 0.3 100%Presentation of Ballots 1% 0.1 0.1 100%Poll Watchers/Challengers 1% 0.1 0.1 100%Candidate and PartyCampaign Advertisement6% 0.6 0.35 58.33%Variables from OtherSections49% 4.9 1.55 31.63%Total 100% 10 5.7 57%Campaign PeriodAudit Question1) Does the length of the campaign period reasonably and fairly allow all registered candidatesand parties enough time to share their backgrounds and policies with the voting public?Legislative ResearchThe FDA could find no legal limit on the length of presidential campaigns. Regarding limitationof awards during Presidential election year, the Presidential election period is defined as June 1to January 20 in an election year (U.S. Code, Title 5, Section 4508).Electioneering communications in television and radio format are distributed within 60 daysprior to a general election or 30 days prior to a primary, nominating convention or caucus (Codeof Federal Regulations, Article 100.29).
  32. 32. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 32 of 82Audit FindingsThe FDA auditors, using their professional judgment, determine that 60 days is adequate time forcandidates and parties to share their backgrounds and policies with the voting public. Theauditors factor in the freedom of speech candidates and parties have prior to the 60 day period ofelectioneering communication.Methodology for Determining Winners of DistrictsAudit Questions1) Is the determination of election winners based on first-past-the-post?2) Is the determination of election winners based on proportional representation closed list?3) Is the determination of election winners based on proportional representation open list?Legislative ResearchPresidentialFederal LevelThe U.S. President and Vice-President are not selected directly by vote of the people. They areselected by appointed electors from each state as per directions of each legislator: the number ofelectors from each state corresponds to the whole number of Senators and Representatives,which each State is entitled to in Congress. No federal Senators and Representatives may appointelectors. The electors vote by ballot for two presidential candidates and one of them must not bean inhabitant of the same State as themselves. The person having the greater number of voteswill be the President, if such a number is a majority; if there are two majorities with equalnumber of votes, then the House of Representatives will choose by ballot the President; if noperson has a majority, then from the five highest candidates on the list, the House ofRepresentatives will choose the President with the representation from the States having onevote; quorum is two thirds of the States. After determining the President, the person having thegreatest number of votes shall be the Vice-President. If two or more candidates have equal votes,then the Senate shall choose by ballot the Vice-President (U.S. Constitution, 2012, Article II,Section 1).The U.S. President and Vice-President are selected by the state electors based on first-past-the-post. The presidential candidate with the most Electoral College votes wins the presidency. Thenumber of state electors each state has is proportional to the number of representatives each statehas in the U.S. congress (U.S. Constitution, 2012, Article II, Section 1).The presidential and vice-presidential candidates having the most votes shall be President andVice-President, as long as the number of votes for each candidate is a majority of the wholenumber of electors appointed. If no majority exists for the presidential candidates, then thecandidates with highest number of votes (not exceeding three) shall choose the President viaballot and based on votes taken by states with each state having one vote. This vote requires aquorum of two-thirds of the states and a majority of the states. If there is no vice-presidentialcandidate with a majority of the vote, then from the two candidates with highest number of votes,
  33. 33. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 33 of 82the Senate shall choose. This vote requires a quorum of two-thirds of the whole number ofSenators and a majority of the Senate (U.S. Constitution, 2012, 14thAmendment).State LevelThe District of Colombia and 48 states have a winner-takes-all rule for the Electoral College. Inthese States, whichever candidate receives a majority of the popular vote or a plurality of thepopular vote (less than 50 percent but more than any other candidate) receives all of the state‘sElectoral votes (U.S. Electoral College, 2012).Nebraska and Maine allow for a possible split of votes through their system of proportionalallocation of votes (based in Maine on Electoral districts and at-large Electoral votes). There isno winner-takes-all rule (U.S. Electoral College, 2012).CongressionalCongressional election winners are based on a single member plurality system (first-past-the-post), except in the case of Georgia, Louisiana, California, and Washington where run-off is heldif no candidate receives an absolute majority (United States of American House ofRepresentatives, 2012; Two-Round system, 2012).The election of congressional representatives is based on a single member plurality system(single-member districts) (U.S. Code, Title 2, Chapter 1, 2c).Audit FindingsCongressional candidates are elected based on first-past-the-post. Presidential and Vice-Presidential candidates are elected by Electoral College electors based on first-past-the-post. Thethresholds for determining the U.S. President and Vice-President are 270 elector votes or firstpast the 269 vote count.The first-the-past-post system does not give other parties an opportunity at the next seat nor doesit base seats on proportion of votes cast.
  34. 34. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 34 of 82For examplesTable 8Candidates for Riding A Total Votes Seat WinnerCandidate A 65,000 Candidate ACandidate B 64,500Candidate C 15,000Candidates for Riding B Total Votes Seat WinnerCandidate D 45,000 Candidate DCandidate E 44,780Candidate F 40,456The FDA believes that proportional representation is a more effective system to capture the willof the majority. In proportional representation, candidates win seats based on the proportion tothe number of votes cast for them and a formula of vote reduction for each time a party wins aseat, which then allows other parties increased opportunity at winning the next seat. Forexample, the Sainte-Laguë method, which is used on New Zealand, Norway, Sweden, andGermany, adheres to this calculation: the first round of seat allocation for all parties noreduction; all other seat allocations have the following deduction (Sainte-Laguë method, 2013):Total number of votes received .2 x (number of seats allocated) + 1For exampleTable 9Parties Total Votes Seat 1 Seat 2 Seat 3 Seat 4Party A 50,000 Party A (wins)(50,000)Party B (wins)(30,000)Party C (wins)(20,000)Party A (wins)(16,666)Party B 30,000 Party B(30,000)Party C(20,000)Party A(16,666)Party B(10,000)Party C 20,000 Party C(20,000)Party A(16,666)Party B(10,000)Party C(6,666)Party D 5,0000 Party D(5,000)Party D(5,000)Party D(5,0000)Party D(5,000)Consequently, first-past-the-post is only reflective of the candidate with the most votes in eachdistrict; whereas, proportional representation is reflective of the most of the votes cast in eachdistrict. Therefore, the political representatives under proportional representation are morereflective of the voice of the electorate than under first-past-the-post.
  35. 35. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 35 of 82Electoral BoundariesAudit Question1) Is the process for determining electoral boundaries reasonable and fair for all registeredcandidates and parties?Legislative ResearchDetermination of State electoral boundariesThe U.S. government conducts a census for the purpose of apportioning electoral seats. Statesuse this census to apportion State House and Senate seats (U.S. Constitution, 2012, Article 1,Section 2).Each state usually modifies congressional districts after the publication of the federal decennialcensus (Hope, 2012).Redistrict methodology is based on one person, one vote, which means congressional districtsmust be drawn, as possible, so each persons vote is counted equally (Reynolds v. Sims, 1964).The apportionment of districts is based on the federal decennial census (U.S. Constitution, 2012,Article 1, Section 2). At the state level, state governments have latitude with variances betweenrural, suburban, and urban areas, and preservation of county lines, as well as other politicalsubdivisions. However, the districts must remain significantly equal in terms of population. Thestates Justice Departments must approve redistricts (Hope, 2012).Congressional representatives draw their district boundaries (Mundell, 2010).The FDA found no legislation which prevents or deters partisan gerrymandering.Determination of Congressional electoral boundariesThe U.S. government conducts a census for the purpose of apportioning electoral seats. Statesuse this census to apportion State House and Senate seats (U.S. Constitution, 2012, Article 1,Section 2).Each state usually redistricts congressional districts after the publication of the federal decennialcensus (Hope, 2012).Redistrict methodology is based on ‗one person, one vote,‘ which means congressional districtsmust be drawn, as possible, so each persons vote is counted equally (Reynolds v. Sims, 1964).The apportionment of districts is based on the federal decennial census (U.S. Constitution, 2012,Article 1, Section 2).Audit FindingsFederal electoral boundaries are determined by U.S. Census reports, in which each district musthave as similar a population as possible to ensure that each person‘s vote counts equally.However, there are no federal laws which prevent gerrymandering, whether partisan or
  36. 36. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 36 of 82bipartisan. Therefore, the FDA auditors determine that the federal electoral boundary process isunfair to candidates from new and small parties by favoring candidates and parties already partof the U.S. Congress. Viz., these incumbent candidates get to draw the electoral boundaries.Process of GovernmentAudit Question1) Within the structure of government do political representatives, individually and asgovernment bodies, have reasonable say in the formation of government policy, legislationetc.?Legislative ResearchThe U.S. federal government is divided into three branches: legislative (comprised of Congressand Senate), presidency (executive), and judiciary (U.S. Constitution, 2012, Article I, Sections 1,2, 3; Article II, Section 2; Article III, Section 2).The U.S. House of Representatives and Senate have legislative power; the President has theexecutive 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 ofRepresentatives and Senate with two-thirds vote in each house have the power to overrulepresidential 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).The President, Vice President and other civil officers can be impeached by the U.S. Congressand Senate for convictions of treason, bribery, and other serious crimes and/or wrongdoing (U.S.Constitution, 2012, Article II, Section 4).The U.S. Constitution may be amended by a two-third vote of both the U.S. Congress andSenate, or two-thirds of states which call for a convention on proposing amendments to theConstitution, and the amendments are ratified if three-fourths of the state legislatures support theamendments (U.S. Constitution, 2012, Article V).Audit FindingsThere are three branches of government, executive, bicameral congress, and judiciary, all withpolitical power over government policy and legislation, and checks and balances. For example,the Congress‘s power over legislation is offset by the President‘s power to veto and proposelegislation, and the judiciaries‘ power to overrule legislation which violates the Constitution.
  37. 37. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 37 of 82Registration of CandidatesAudit Question1) Are the registration requirements of federal candidates reasonable and based on reasonablepopular support rather than finances?Legislative ResearchPresidentialPresidential candidates must register with the Federal Election Commission once a candidates (orperson acting on his behalf) receives contributions or make expenditures in excess of $5,000.Within 15 days of reaching the $5,000 threshold, presidential candidates must file a Statement ofCandidacy which authorizes a principal campaign committee to raise and spend funds on thecandidate‘s behalf. Within 10 days of the Statement of Candidacy, the principle campaignorganization must file a Statement of Organization (How do I register as a candidate for federaloffice, 2012; U.S. Code, Title 2, 421 (2) – Definitions).Presidential candidates must have contributions or expenditures in excess of $5,000 in order tobe a registered candidate (Candidate Registration, 2012; U.S. Code, Title 2, Section 421 (2) –Definitions).CongressionalCongressional candidates must register with the Federal Election Commission once a candidates(or person acting on his behalf) receives contributions or make expenditures in excess of $5,000.Within 15 days of reaching the $5,000 threshold, presidential candidates must file a Statement ofCandidacy which authorizes a principal campaign committee to raise and spend funds on thecandidate‘s behalf. Within 10 days of the Statement of Candidacy, the principle campaignorganization must file a Statement of Organization (How do I register as a candidate for federaloffice, 2012; U.S. Code, Title 2, 421 (2) – Definitions).Congressional candidates must have contributions or expenditures in excess of $5,000 in order tobe a registered candidate (Candidate Registration, 2012; U.S. Code, Title 2, Section 421 (2) –Definitions).Audit FindingsAlthough the barrier to entry for federal candidates is based merely on raising or spending atleast $5,000, the registration is not based on popular support. For example, with no personalcontribution limits for congressional candidates, a candidate could merely contribute $5,000 tohis own campaign to meet the registration requirement for candidates, rather than meet theregistration through having, for example, at least 500 $100 contributions.
  38. 38. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 38 of 82Registration of PartiesAudit Question1) Are the registration requirements of parties reasonable and based on reasonable popularsupport rather than finances?Legislative ResearchTo be registered as a national political party, the party‘s bylaws must state that the party isresponsible for the day-to-day operation of the party at the national level (U.S. FederalRegulation, Article 100.13; U.S. Code, Title, Section 431 (14)).The Federal Election Commission determines whether or not a political party is responsible forthe day-to-day operation of the party at the national level (U.S. Federal Regulation, Article100.13; Party Registration Toolkit, 2012).A political party refers to an association, committee, or organization that nominates or selects acandidate for election to any Federal office, whose names appears on an election ballot as thecandidate of the association, committee, or organization (U.S. Federal Regulations, Article100.15).Presidential candidates must register with the Federal Election Commission once a candidate (orperson acting on his behalf) receives contributions or make expenditures in excess of $5,000.Within 15 days of reaching the $5,000 threshold, presidential candidates must file a Statement ofCandidacy which authorizes a principal campaign committee to raise and spend funds on thecandidate‘s behalf. Within 10 days of the Statement of Candidacy, the principle campaignorganization must file a Statement of Organization (How do I register as a candidate for federaloffice, 2012; U.S. Code, Title 2, 421 (2) – Definitions).Audit FindingsThe registration of parties is indirectly connected to the registration of candidates. No candidatesmeans no party. Therefore, the $5,000 threshold for registration of candidates indirectly appliesto parties. Consequently, for 10 candidates, there is a registration fee of $50,000. Outside of thisregistration requirement and basic disclosures, there are no other requirements. The FDA, usingprofessional judgment, marked down the score on grounds of no provisions for popular support,such as having a minimum threshold of party members or supporters. As the U.S. legislationstands, a small number of wealthy candidates and supporters can register as a party.
  39. 39. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 39 of 82Electoral ComplaintsAudit Questions1) Do candidates and parties have mechanisms in which to file complaints for electoralwrongdoing/fraud?2) Are there reasonable mechanisms to enforce candidate and party electoral complaints?Legislative ResearchAny person can file a complaint to the Federal Election Commission (FEC) about a perceivedviolation of any statute or regulation which the FEC has jurisdiction. The person making theelection complaint must file a complaint in writing to the FEC, which includes the three copies(if possible), full name and address of complainant, and contents of the complaint (which swornin front of notary and notarized). All statements are subject to statutes regarding perjury. Thestatements must distinguish personal knowledge from information and belief, identify eachperson or entity who is alleged to have committed violation; statements based on information andbelief should identify source of information/belief; statements should contain clear and concisefacts of the alleged violation; statements should include supporting documentation (U.S FederalRegulations, Article 111.4 Complaints; U.S. Code, Title 2, 437g(a)(1)).The Federal Election Commission has a comprehensive process for process election complaints:initial review of complaint and contact complainant within 5 days; opportunity for respondent todemonstrate that no action be taken within 15 days of receipt of complaint; General Counsel ofthe FEC with advise the FEC on how to proceed; the FEC shall determine how to proceed basedon this advice, internally generated findings, and responses from the respondent; if the FECproceeds, it will conduct an investigation; the FEC may issue subpoenas and conduct fieldinvestigations, audits and other information-gathering; witnesses subpoenaed will becompensated as consistent with U.S. courts; any person subpoenaed may apply to quash ormodify it; upon completion of the investigation and its findings, the General Council shall advisethe FEC; the General Council shall attempt to reach a tentative conciliation agreement with therespondent; if no conciliation agreement is attainable, the General Council may recommend civilaction; the FEC shall make public any findings that do not terminate its proceedings; respondentmay be represented by council in civil hearing; the FEC has a comprehensive list of civilpenalties; no penalty shall exceed $6,500 or an amount equal to any contribution or expenditureinvolved in the violation; in the case of knowing and willful violation, the civil penalty shall notexceed $11,000 or an amount equal to 200% of any contribution or expenditure in violation, or incase of U.S.C. 441f, the penalty shall not be less than 300% of the amount of any contributioninvolved in the violation, and shall not exceed $55,000 or 1,000% of the amount of thecontribution; the respondent has an opportunity to challenge any FEC penalties; if the respondentis unsatisfied with the FEC response, the respondent can appeal the decision to the district court;the decision of the district court is not reviewable by a higher court; calculation of penaltiesfactor in number of days late in submitting reports and previous violations (U.S. FederalRegulations, Articles 111.5 to 112.1)
  40. 40. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 40 of 82Audit FindingsThere is an extension process for electoral complaints, including provisions for appeal andmechanisms for civil penalties. However, there are no provisions to remove, for example,unlawful electioneering communication prior to a determination of wrongdoing. The FDAauditors did not deduct for this missing legislation as it is a slightly grey area, and it could beused to unnecessarily suppress freedom of expression.Presentation of BallotsAudit Question1) Are electoral lists presented on ballots in a fair, equitable way for all registered candidatesand parties?Legislative ResearchPresidentialEach state elector shall name in their ballot who they vote for as President, and in another ballot,who they vote for as Vice President. The ballots for states are processed according to the numberfor each presidential candidate and each vice presidential candidate (U.S. Constitution, 2012,14thAmendment).CongressionalThe states regulate the time, place, and manner of federal elections, unless Congress legislates tothe contrary (U.S. Constitution, 2012, Article I, Section 4).The states have their own ballot access laws, and these laws vary (Ballot Access, 2012).The states determine their own ballot design for federal elections (Ballot Design Samples, 2012).Audit FindingsThe states determine the electoral lists and ballots subject to the U.S. Constitution, whichguarantees suffrage to U.S. citizens 18 years or older, and regardless of sex, gender, ethnicity etc.The FDA researchers found no evidence to suggest that electoral lists and ballots are being usedto disenfranchise. The issue of photo identification applies to the section on Value of a Vote.
  41. 41. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 41 of 82Poll Watcher and ChallengerAudit Question1) Are candidates and parties allowed poll watchers and challengers at polling stations?Legislative ResearchAccording to the U.S. Office of Federal Registry, electors may be required to vote for thecandidate of their party or according to State law or pledges. Electors who pledge to vote fortheir party have done so 99 percent of the time in the Electoral College history. Electors from 24U.S. States are not required to vote for specific candidate (i.e. candidate with the majority of thepopular vote). Electors from 6 U.S. States are bound to party pledges; electors from 25 States arebound by state laws; electors from 4 States are bound by state pledges (U.S Electoral College,2012).Some U.S. states allow the public to view the voting of state electors at their state capitols (U.SElectoral College, 2012).U.S. states have authority under their laws to resolve controversies about Electoral College votesand voting results (U.S. Code, Section 5; U.S Electoral College, 2012).Electoral votes can be contested in the Senate and House of Representatives. Objections must besigned by at least one Senator and one member of the House Representative. The Senate and theHouse of Representatives debate the objections separately and within 2 hours. Both the Senateand the House of Representatives must agree to reject the votes (U.S Electoral College, 2012).Audit FindingsThere are provisions for poll watchers and challengers at polling stations. In some states, theElectoral College vote is open to public viewing. Although more transparency of the ElectoralCollege vote would create a more accountable system, the FDA auditors did not deduct from thescore due to the numbers of state laws regulating the Electoral College vote, and the vote doesnot include a polling station and members of the public who vote.Candidate and Party AdvertisementAudit Questions1) During the campaign period, do candidates and parties have equal access to radio, television,and print media for political advertisement, and equal cost of political advertisement?2) During the campaign period, do candidates and parties political advertisements in mediainclude a public subsidy component to ensure an equality of political advertisement in themedia?3) Outside of the campaign period, do candidates and parties have equal to radio, television, andprint media for political advertisement, and equal cost of political advertisement?
  42. 42. Foundation for Democratic Advancement | 2012 FDA Electoral Fairness Audit of the U.S.A. Revised April 11, 2013 R1 Page 42 of 82Legislative ResearchThe Federal Election Commission may revoke any broadcast station license or constructionpermit for willful and repeated failure to allow reasonable access or to permit purchase ofreasonable amounts of time by a registered federal candidate or committee on behalf of hiscandidacy (Communications Act, Section 312(a)(7) and Code of Federal Regulations, Section73.1944(a)).Broadcasters shall make its facilities available to federal advertisers on the weekend before anelection, if the broadcasters provided similar access to commercial advertisers during therelevant election period. Also, broadcasters shall not discriminate between candidates forweekend access (Code of Federal Regulations, Section 73. 1944(b)).Electioneering communications are limited to paid programming and only apply to 60 days priorto a general election or 30 days before a primary election for federal office including elections inwhich a candidate is unopposed (Code of Federal Regulations, Section 100.29).Expenditures of political committees which are otherwise reported to the Federal ElectionCommission are not considered electioneering communication. [This provision prevents doubleaccounting of expenditures.] (Code of Federal Regulations, Sections 100.29; 104.20(b)).Corporations and labor organizations are required to make electioneering communication withintheir restricted class and may not provide funds to any person for the purpose of electioneeringcommunication (Code of Federal Regulations, Sections 114.2(b)(2)(iii); 114.14(a)).Qualified nonprofit corporations may make electioneering communications. Communications inexcess of $10,000 in a calendar year must be reported. Qualified nonprofit corporations cannotaccept funds from corporations or labor organizations or make contributions to federal politicalcommittees (Code of Federal Regulations, Section 114.10).Unincorporated, unregistered "527" tax-exempt organizations, individuals, and partnerships maymake electioneering communication as long as funds are not from corporations and labororganizations, and can be satisfactorily subject to reasonable accounting procedures (Code ofFederal Regulations, Section 114.14).Federal political committees are required to be put a disclaimer on their public web sites and inemails 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 politicalcommittees and for their usual and normal fees (Internet Communications and Activity, 2012).Corporations and labor organizations may send political endorsement emails only to thedesignated audience within their restricted class. In addition, corporations and labororganizations may have endorsements and solicitations on their websites as long as the contentsare only accessible by designated audience for their restricted class (Code of FederalRegulations, Section 114.3; Internet Communications and Activity, 2012).Any corporation or labor organization may donate funds to support a debate conducted by anonprofit organization. The debate must not support or oppose any candidate or party, be

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