Comparative Assessment of Central Electoral Agencies
Comparative Assessment of Electoral Management Bodies
This section draws comparative insights and lessons from the analyses of the EMBs in the six countries that are presented later in this report. The comparative assessment presented here is guided by the underlying premise that electoral management arrangements should contribute to free and fair elections, which are overseen by an independent body that has integrity, credibility and legitimacy in the view of the public and the political parties that participate in the electoral process. A number of criteria for assessment were described earlier in this report and were used to focus the analysis of the six countries.
Among the values identified, the condition of independence from the political executive, and to a lesser extent the legislature, has become a widely accepted international norm for the design and operation of EMBs, and this attribute received particular attention in the case studies. The relative advantages and disadvantages of a single-headed electoral agency compared to multi-member commissions was another focal point of the analysis.
Before turning to our findings, three caveats are in order. First, there is no such thing as a perfect model for EMBs, especially a model upon which all observers would agree. To the extent that a consensus exists among election professionals and academic commentators, a preferred model is limited to agreement on general principles and values that should serve as the foundation for the design of EMBs. There is far less agreement on how these foundational principles and values can best be translated into practice.
Second, in any country, the organizational and procedural arrangements for the management of the electoral process are never based solely on recognized principles of organizational design. Instead, those structures and processes reflect such factors as the size and diversity of a country, its history and political traditions, existing constitutional requirements, the formal and informal relationships among different parts of government, the nature of the party system and the dynamics of partisan competition, and the types of issues that have arisen related to elections. As the studies of the individual countries revealed, the EMBs became gradually more independent as each of the six democracies matured.
Third, our focus is mainly on the design of national EMBs, which sit in the middle of a three-tiered governance process for planning and conducting elections.
The top level of the governance structure involves the passage of primary legislation, which regulates the electoral process in a general way, including by establishing a supervisory agency. Governments and legislatures are responsible for decision-making on this level. Ideally, electoral laws should be clear, consistent and up to date. However, our case studies revealed that the legal framework for elections involves multiple laws, often in need of reform and modernization. This legislative environment creates challenges for EMBs charged with translating legal provisions into regulatory policies and administrative practices.
The lower level of governance involves the actual delivery of elections "on the ground," so to speak. Control over the planning and execution of elections may reside with an EMB, or it may be delegated to other orders of government and/or outsourced in whole or in part to private contractors. The pattern of devolution or decentralization can arise from the Constitution, as in the United States and the United Kingdom, or it may be the result of an administrative decision made by the EMB, as in Australia.
For electoral administration to be decentralized, a national EMB must develop regulations, policies, procedures, guidance, supports, standards and reporting requirements to ensure that local institutions comply with the legal rules and foundational principles of electoral democracy. The backgrounds and qualifications of local officials in charge of delivering electoral services can obviously have a significant impact on the quality of the voting experience.
EMBs are usually found in the middle of a hierarchical governance process. In some cases, they are required to take the multiple, often general aims and provisions of electoral laws and give them more precise operational meaning in order to guide their own administrative actions (as in the case of India) and the actions of local electoral authorities as well as to provide guidance to political parties and candidates.
The three levels of policy-making and administrative activities are interrelated, and all are important to ensuring integrity, access, participation, fairness and credibility in the electoral process. In the Canadian case, the Canada Elections Act is primarily a regulatory statute, and it is quite detailed and prescriptive in its content. There is no delegated subordinate law-making or regulatory authority vested in Elections Canada. This creates inflexibility in applying the law and requires amendments to the law to take account of changing conditions in the electoral environment. Similarly, the commissions in Australia, New Zealand and the United Kingdom operate without general subordinate or secondary law-making authority, and they face the challenge of adapting their interpretation and application of primary legislation to changing conditions within their electoral system. In the UK, Parliament granted the Electoral Commission authority to formulate regulations for the 2011 referendum, and this pilot project, together with an ongoing review of electoral laws by the Law Commission, suggested to a senior official of the Electoral Commission that Parliament might within the next five years agree to a generalized grant of rule-making authority.
The situation in the US is quite different from that in the Cabinet-parliamentary countries. There, the Federal Election Commission (FEC) regulates only in the area of campaign finance issues, but it has the legal authority to develop regulations. Its regulations are subject to approval by Congress and are often challenged in the courts, so the grant of subordinate law-making is subject to significant limits. The six commissioners on the bipartisan FEC are expected to approve regulations, advisory opinions, matters to be investigated and actions to be taken to achieve compliance with electoral law. However, as described in the US case study, partisan disagreements inside the FEC have often blocked decision-making.
The basic arrangement in the US of having politically connected individuals serving on a commission that makes decisions about the interpretation and enforcement of electoral law would be seen as unusual, if not inappropriate, by most knowledgeable observers in the other five countries. Even in the other four countries where a commission model exists, steps have been taken to provide distance from the political and partisan processes of campaigning and governing. Details of those protections can be found in the case studies that follow.
There is a second way in which EMBs are caught in the middle. They operate along the often blurred boundary between politics and administration. As in other fields of public policy, the regulations and activities of EMBs create opportunities and constraints for, and confer benefits and costs on, political parties and politicians. However, those same partisan organizations and actors, when working in government and in the legislature, are able to decide the structure of an EMB, "the rules of the game" that it is required to implement and the "tools" that it is given to fulfill its legal mandate. For example, partisan politicians scrutinize an EMB and provide formal public and informal private advice to its leader. The parliamentary committees that review reports on the administration of recent elections or reviews of spending requirements often provide public criticism and advice. And elected politicians provide electoral bodies with a number of potential private channels of representation, often involving disagreements over the raising and spending of campaign money. On the basis of national election laws and informal pressures, partisan politicians set the parameters for the work of EMBs and also scrutinize their performance.
In the governance process, then, politicians play a dual role of both deciding electoral policies and being the primary targets of those policies. This duality creates the potential for conflicts of interest because politicians and political parties may draft laws that do not constrain them unduly and may even seek to create political advantages for themselves over other parties. If self-interested political calculation dominates the framing of laws and other instructions to EMBs, foundational principles and values of electoral democracy such as independence, impartiality and a level playing field will be compromised. The relationship between election officers and politicians must be mutually respectful but should not become too "cozy."
It is impossible and inappropriate to completely remove issues of electoral governance and administration from the domain of political judgment and democratic accountability through the political process. The goal when designing a new or modifying an existing EMB should be to strike an appropriate balance between independence and professionalism on the one hand and responsiveness and accountability on the other.
Factors That Shape the Governance Process
The analysis of the six countries revealed four key factors that have shaped the governance process in the field of electoral management. The first dimension involves the distribution of authority, initiative and power within the political system generally and the electoral governance structure in particular. Authority can be divided in two ways: along horizontal lines at the national level and along vertical lines at the national, regional (in some countries) and local-authority levels. The constitutional differences between Cabinet-parliamentary and presidential-congressional political systems, and between federal versus unitary forms of government, has proved to be significant to the design of electoral arrangements.
The second key dimension involves the procedures and the basis for the appointment of election officers at all levels, but particularly at the national level, as well as the conditions that govern these appointments. An important related issue is whether the varied activities of an EMB are directed and controlled by a single agency head, a multi-member commission or some hybrid model.
The third component of the governance framework involves the scope of the responsibilities of an EMB and whether it is granted authority and resources commensurate with those responsibilities. An EMB may be granted control over the full range of electoral functions, or some of these functions may be assigned to other bodies. Different decisions about consolidated or dispersed allocations of functions create different challenges for coordination, consistency, efficiency and effectiveness, and accountability for results.
The fourth component of the governance process involves the balance between independence and accountability involved in the relationship between an EMB and the government and legislature. The official rhetoric may describe a particular EMB as independent, but the balance that exists in the working relationship will reflect a combination of the processes by which the mandates of the EMB are adopted and modified, the manner in which its leaders are appointed and their backgrounds, the processes by which its budget and staffing are decided, the reporting and scrutiny requirements it faces and the consequences for it and its leadership that might accompany strong or weak performance. These characteristics are judged mainly by the political executive and, to a lesser extent, by legislators, especially those serving on committees that oversee the work of the EMB.
There is both a formal and an informal aspect to the accountability relationships that exist. EMBs must also be aware of and be responsive to the concerns of a range of stakeholders outside government. Each of these broad governance domains is discussed in the following subsections, with illustrative examples from the case studies used to support the conclusions.
It Starts, but Does Not End, with the Constitution
The case studies indicate that there is a connection between the distribution of authority and power within national political systems and the preferred model for an EMB. This connection can be discussed in terms of two constitutional distinctions: the Cabinet-parliamentary versus presidential-congressional political system and the federal versus unitary constitutional order.
Cabinet-Parliamentary Versus Presidential-Congressional Political System
Cabinet-parliamentary systems are characterized by a fusion of legislative and executive authority, and initiative is largely centralized with the prime minister and Cabinet.
Consistent with this constitutional centralization of authority, the historical preference within Cabinet-parliamentary systems was to rely on a department of government to oversee the full range of electoral management functions. This was in part because the principles of collective and individual ministerial responsibility required ministers of the Crown to answer before Parliament for all actions within government.
A second reason for a consolidated approach was that well into the 20th century, political involvement in electoral functions was more widely accepted. Gradually, however, the public in different countries came to insist that if democracy was to work properly, certain areas of the electoral process needed to be free of partisanship. The events leading up to such demands were often precipitated by scandals.
Finally, in earlier decades, elections were much simpler events than they became by the end of the century. Over time, the electoral process became professionalized, relied on ever-changing technologies and political practices, and involved raising large sums of money. The number of election laws and their specialized content increased in response to these trends, especially in the field of campaign finance regulation. In short, electoral management became a more technical and complicated process that called upon more in-depth knowledge and skills that would normally not be found in a regular department of government.
Canada was the first of the four Cabinet-parliamentary systems to establish an independent EMB. This took place in 1920 with the appointment of a chief electoral officer as an agent of Parliament who would not come under the authority of a minister and who would be located outside the departmental framework of government. The other three Westminster-style systems were slower to abandon the government model in favour of a more independent body. Australia operated its elections out of a separate branch of government from 1902 to 1984, when it transferred responsibility to an independent commission. New Zealand had a chief electoral officer, who had responsibility for elections and candidates, but the position was located in the Ministry of Justice. Separate agencies responsible for the regulation of parties and the education of voters and for voter registration also existed. In 2010, these functions were consolidated in an independent commission. In the UK, responsibility for elections resided in the Home Office, a department of government, until 2000, when an independent commission was created.
In summary, outside Canada, reliance upon arm's-length, independent EMBs in Cabinet-parliamentary systems is a relatively recent development. As discussed below, the mechanisms for insulating each EMB from undue political pressures are somewhat different in each country, and the requirement for ultimate democratic accountability through the political process has placed some limits on each EMB's freedom and autonomy. The exposure to political pressures varies among the EMBs, and, over time, individual agencies have been more or less free of political controversy.
The approach to the governance of the electoral process in the US is fundamentally different from the Cabinet-parliamentary model. The US has a national political system based on separation of power and on checks and balances among the executive, legislative and judicial branches. These arrangements are meant to prevent possible abuses of power and to make it very difficult to undertake any government action that might be seen to threaten personal liberty.
Dispersed authority and divided government in the US has produced a fragmented approach to the legislative, regulatory, guidance and implementation roles in the processes for electing the president and vice-president as well as the two Houses of Congress. The US Congress – both the House of Representatives and especially the Senate – is far more powerful than parliaments typically are in Cabinet-parliamentary systems. As reported in the US case study, Congress has been very mindful of its constitutional prerogatives and aggressive in asserting them in the design and operation of EMBs.
There is a strong tendency in the US to codify the rules governing the political process, and this has meant considerable involvement of the courts in resolving disputes over what is constitutionally appropriate action by other branches of government. Compared to the other countries in this study, the courts, all the way up to the Supreme Court, have played a more influential role in determining the balance between freedom and regulation of many electoral matters. In general, the constitutional and legal environment surrounding elections in the US is more complicated, conflictive and intense than in Cabinet-parliamentary systems.
In the US, there are two national electoral bodies – the FEC, mentioned above, and the Election Assistance Commission (EAC) – both of which are regularly entangled in controversy. Created in 1974 in response to the Watergate scandal, the FEC regulates only campaign finance matters. The EAC was created in 2002 to administer funds and provide other supports to state and local governments to improve voter participation and the quality of elections.
Both commissions are constructed on a bipartisan basis, with appointees coming from a background of involvement in one of the two main political parties. The thinking behind this model is that placing partisans in equal numbers inside the commissions will lead them to monitor one another, and this will prevent partisan bias in decision-making. This is fundamentally different than the preferred model in Cabinet-parliamentary systems, where either a single, impartial professional is placed in charge of an independent agency or a commission is created of eminent citizens deemed to be above partisanship.
Federalism Versus Unitary Forms of Government
The second constitutional distinction among the six countries is federalism versus unitary forms of government. Australia, Canada, India and the US are federal systems, which cover vast territories and contain significant economic, social and political differences. (The UK was once thought of as unitary, but with the ongoing devolution, begun in 1998, to executives and legislatures in Northern Ireland, Scotland and Wales, the country is more accurately described as quasi-federal.) Achieving coordinated national policies and standards on elections while respecting regional differences and local preferences has been a challenge in all four federal systems, and increasingly in the UK. New Zealand is a relatively small, socially homogeneous society with a unitary political system, and these conditions make electoral governance more straightforward.
The impact of federalism on the US electoral process has been dramatic and controversial. The Constitution grants primary authority over national elections to state governments, who in turn have further delegated responsibility to county and local governments. Congress has the authority to override state and local electoral regulations and administrative practices, but the constitutional founders envisaged this power being used only in "extraordinary circumstances" (Samples 2001). There has been limited legislative action at the national level to restrict the freedom of state and local governments to run national elections, which are often held simultaneously with local elections. Even when serious problems have arisen (such as the controversial outcome in the presidential contest in Florida in 2000), calls for national standards have been successfully rebuffed by the argument that "nationalizing elections through federal mandates would be a constitutional and policy mistake" (Samples 2001, 1). In Congress, protection of states' rights has been such a strong, perpetual theme in all policy fields that centralizing electoral management in one national body seems highly unlikely.
Whether operating in a federal or unitary state, in a geographically small or expansive country, EMBs must rely upon local returning officers to administer the actual voting processes for elections and referendums. As the case studies indicate, how these officials are chosen and to whom they are responsible affects the quality of those processes. In the US, for example, local government officials from approximately 8,000 different jurisdictions, many of whom hold elected positions, organize and conduct national elections with minimal supervision from state governments. The diversity of the selection processes in those communities has given rise to many problems. In the UK, there is a long-standing tradition of local government authorities being in charge of the operational aspects of voting. Even after a national electoral commission was created in 2000, the decentralized approach to electoral administration was retained. Returning officers in the UK continue to answer to local governments.
In contrast, returning officers in Canada are appointed and report to Elections Canada. (Australia and New Zealand also follow this model.) This relationship gives Elections Canada the opportunity to determine the qualifications and training requirements for returning officers, and their knowledge and professionalism can be advantageous. Operating within the administrative framework of an EMB may reduce the scope for errors, but it is not a guarantee that mistakes will not occur.
Scope of Responsibilities
The legal mandate and the powers granted to the EMB in each country are different. The most radical differences are in the US, where the impacts of divided government at the national level, federalism and self-interested actions by politicians have produced two commissions with narrow mandates and limited authority.
Despite its name, the FEC is not responsible for all matters affecting national elections, but only for campaign finance matters. Even in relation to the raising and spending of money, the FEC has been described by many critics (it has very few defenders) as a weak and dysfunctional watchdog over campaign finance issues. According to the experts, the original legislation establishing the FEC was flawed, and, over the years, Congress proceeded to further handcuff it by diluting its authority and denying it the resources needed to enforce the rules.
The second commission, the EAC, does not engage in direct regulation but instead seeks to improve voter participation and the quality of the voting experience by providing money and advice to states and local governments. Even though the EAC must rely on "carrots" rather than "sticks," it has still been entangled in controversy. To believers in limited regulation and states' rights, the EAC trespasses on constitutional territory assigned to state and local governments. To would-be reformers of the national electoral process, the flaws contained in the Act creating the EAC and the failures of implementation mean that little has been done to address the problems (e.g. voter registration issues, antiquated voting technology, long voting lines) in this process.
The fragmented and limited mandates of the US commissions contrast drastically to the more comprehensive and consolidated mandates found among the EMBs in the other countries. Elections Canada, for example, is responsible for a wide range of related functions: registering voters, parties, constituency associations and third parties who engage in election advertising; managing the location of polling stations; enforcing electoral laws and regulations; educating voters; and monitoring and reporting on party and candidate contributions and election spending. The positions of Commissioner of Canada Elections and Broadcasting Arbitrator are separate, but both individuals are appointed by the Chief Electoral Officer. Ten independent boundary commissions, one for each province, are responsible for the redistribution of seats in the House of Commons after each decennial census, but the work of these commissions is supported by Elections Canada. In summary, Elections Canada's formal mandate is broadly inclusive of all electoral functions, and this allows activities to be integrated and coordinated within the framework of a single organization.
New Zealand once relied upon three separate agencies to manage different aspects of elections, but in 2010, it combined all of the functions into a three-person commission. A government briefing document justifying the change pointed out that three separate agencies led to disjointed decision-making on electoral matters, involved an unnecessary overlap of roles and duplication of administrative costs, and limited the opportunity for anticipatory planning, especially with respect to the use of information technology (IT) in future elections. A consolidation of functions would provide for "more consistent oversight and decision-making across electoral policy and operations" and provide for a "high level of service to the public, candidates and political parties" (New Zealand 2009b, 4).
Australia and India also entrust all of the most important electoral functions to their three-person commissions. In 2000, when the UK adopted the independent commission model, it recognized the opportunities to integrate and coordinate functions that had previously been the overall responsibility of the Home Affairs department, but that department had to rely on several other departments to implement electoral laws. At first, the UK Electoral Commission became the organizational "home" for the existing independent boundary commissions, but following devolution, three of these institutions became the responsibility of the devolved legislatures.
In summary, the trend identified in our cases has been toward integration rather than fragmentation. There are a number of reasons for this. Elections are complex events to manage, and grouping all electoral functions into the decision-making and administrative framework of a single organization is seen as the best way to avoid unnecessary overlap and duplication, improve coordination and avoid possible gaps and breakdowns in planning and conducting elections. The increasing reliance on IT in delivering electoral services means that different functions (such as registration and polling systems) can be more easily integrated. Having several agencies involved runs the risk of reducing the effectiveness of delivering electoral services, but one body with an expert perspective on all electoral functions may be better equipped to provide advice to governments and legislatures.
The case against a more inclusive, consolidated model is that it places too much authority in the hands of either a single electoral administrator or a commission consisting of a small number of "enlightened amateurs," who will rely too heavily on the advice of full-time professionals in the EMB. Because this model has a sweeping mandate, the balancing and trade-offs among different values and interests set out in different electoral statutes will take place in confidential debates within a small commission or even through the reasoning of a single unelected public official at the apex of the agency. As a result, separating certain politically sensitive functions (such as party registration and redistribution) into different bodies could insulate the main EMB from criticism.
These are not irrelevant concerns, but they can be addressed by structural separations inside an agency, as was done in the Canadian case by creating the ten independent boundaries commissions and appointing the Commissioner of Canada Elections to be responsible for enforcing electoral laws. Although the Commissioner is housed within the administrative framework of Elections Canada, he operates independently. He can accept complaints about violations of electoral law from any source. Many matters are referred to his Office as a result of reporting, monitoring and auditing work done within Elections Canada, but it is his decision, whether to investigate and what remedies should be applied to deal with violations of the law, including deciding whether to prosecute. As for the concern about an undue concentration of power, this risk can be addressed by having strong external requirements for transparency and accountability.
Our county studies suggest that there is a link between the laws, structures and regulatory processes of electoral management and the substantive issues that have appeared over time on the political and government agendas in each of the countries. In other words, the substantive issues that arise from changes in society, including new technologies and shifts in public opinion, as well as changes to the practices of political parties, have often resulted in changes to legislation, creation of new EMBs or modifications to existing EMBs as well as new secondary rules and procedures to deal with real and perceived problems in the electoral process. In turn, these changes to the governance processes for elections affect the behaviour of politicians, political parties and other actors in the political process, including creating incentives to search for ways to avoid the constraints of law and regulations.
This study focuses mainly on the governance process rather than the substantive issues of electoral management. To describe the two-way relationship between substantive issues and governance matters, it is useful to examine briefly how the rising importance of money in politics has created an impetus for changes and ongoing challenges for electoral authorities. In all six countries, the issue of money in political life has probably been the most sensitive and controversial area of electoral governance.
The scope and strictness of the laws and regulations affecting financial matters vary among the countries, and details can be found in the country studies. Briefly, therefore, among the countries, Elections Canada has the most extensive regulatory regime and the most effective enforcement apparatus for upholding the political financing provisions contained in its authorizing statute, the Canada Elections Act. The Act provides for ceilings on contributions and spending by parties and candidates; requires disclosure, reporting and auditing; and allows parties and candidates who obtain a certain percentage of the vote to be reimbursed a portion of their eligible election expenses. A division of Elections Canada is dedicated to auditing the financial reports of parties and candidates as well as to giving advice and support to parties to achieve compliance and other actions intended to ensure compliance with the law.
In the UK, the regulatory regime for party and candidate financing relies mainly on reporting and transparency. There are no caps on contributions and relatively generous ceilings on spending. In the US, where money, particularly private money, plays a greater role than in any of the other six countries, the sole mandate of the FEC is to regulate financial matters; however, despite any laws that might exist, it is seen as a weak watchdog over the financial side of political life. Actions by Congress and the courts have tended to undermine its authority and have created a dysfunctional, dispirited body that is ineffective in disclosing and curbing potential violations of laws that might appear good on paper. In summary, the authority, capacity and commitment of an EMB to act effectively, impartially, consistently and transparently on financial issues contributes greatly to its overall reputation and credibility as well as to the public confidence it inspires.
Single-Headed Agency Versus Multi-Member Commission
A number of models exist for creating an independent EMB, although, most often, it comes down to choosing either a single-headed agency or a multi-member commission. There are a couple of approaches to determining the advantages and disadvantages of the two models. One approach is to list the costs and benefits in the abstract, and this exercise is carried out in Appendix D. The second approach, followed here, is to look at examples of each model in operation. The four countries that follow the Cabinet-parliamentary model have opted for arm's-length electoral authorities – whether a single official or a commission – who are appointed on the basis of merit and perform their duties in a professional, impartial manner. In the US, there is a greater insistence on being responsive to the concerns of politicians, and the members of the two national commissions are appointed on the basis of their partisan affiliations.
In the Cabinet-parliamentary systems, appointment is by the Crown on the recommendation of the government of the day. This method of appointment may create the impression of potential bias or partisanship, and so to avoid this, there is either a statutory requirement or a recognized practice to consult with other parties in Parliament. How meaningful that consultation is can be debated: if a majority government is determined to appoint someone with obvious partisan leanings, they would have to be prepared to pay the political price of criticism inside and outside Parliament.
In Australia, the law requires that the chairperson of the three-member commission be a judge, and a second commissioner is the full-time chief executive. In New Zealand, there is no statutory requirement to appoint a judge as chairperson of the three-member commission, but a retired judge has been chair since the commission was created in 2010 and was recently reappointed.
In the UK, the chairperson of a ten-member commission is appointed after consultation among parliamentary parties and after an all-party committee chaired by the Speaker of the House of Commons has conducted a recruitment and selection process. From 2000 to 2009, the membership of the commission was strictly non-partisan because the law disqualified individuals who had recent involvement with a political party. Amendments to the law in 2009 allowed for four additional commissioners, who were assigned the explicit role of contributing first-hand knowledge of the political process without acting on the basis of their partisan affiliation.
Before Canada's present Chief Electoral Officer was appointed in 2007, the government consulted opposition parties, the nominee for the position appeared before a parliamentary committee, and then a resolution endorsing an appointment was voted on by the full House.
The length of appointment for commissioners or agency heads can have an impact on their independence and their willingness "to speak truth to power." If commissioners or CEOs lack long-term security, there may be a concern that their actions are motivated by calculations about reappointment. The approach followed in the four Cabinet-parliamentary models varies. For example, Australia and New Zealand use flexible terms of up to seven and up to five years, respectively, and reappointment is possible in both cases. The UK appoints commissioners for terms of varied lengths, and they can be reappointed. In Canada, the CEO is appointed until the age of 65, and this results in terms of varied duration. This is also the case with India's commissioners.
Among experts in the field, there is a strong consensus that continuity is valuable because it fosters a long-term planning perspective; leaders of EMBs need to be around through at least two electoral cycles, which normally means eight to ten years in office. Removal from office is a drastic and rare event that can take place only for the most serious causes, such as incapacity or misconduct. Such dismissals usually require a resolution of both Houses of Parliament – a requirement that discourages governments from acting in a blatantly partisan manner. In Canada, removal can be only for cause, by the Governor General on a joint request following a majority vote in the House of Commons and Senate.
In the US, the commission model has partisanship built into the appointment process. In the case of both the FEC and the EAC, the law requires that appointees be affiliated with one of the two main parties, with an equal number of appointees from each. Both commissions have an even number of members, and decisions can be made only by a majority; this means that at least one commissioner must join with the other side. Even though the laws creating both commissions talk about the importance of impartiality and professionalism in decision-making, it is understandably difficult for commissioners to leave their partisan identities behind them when they join a commission.
Partisan appointments were meant to prevent bias by creating a decision-making dynamic of mutual monitoring and a search for accommodation. But instead, according to the numerous critics, the result has been deadlock, inaction, excessive concern for the interests of parties and Congress, and a woeful performance in upholding national electoral laws. Some analyses of FEC and EAC decisions make the case that principled policy disagreement more than partisanship has produced the standoffs. In a sense, this does not matter because, whatever the reason, the two commissions have been ineffective in pursuing their mandates and have been the target of widespread criticism by politicians, the media, academics, think tanks and advocacy groups. Poor performance and constant criticism rob the commissions of credibility and reduce voter confidence in the electoral process.
The process of appointing commissioners to the FEC and EAC is highly political. In principle, the president is authorized to appoint commissioners, but only with the consent of the Senate, so that in practice, there can be prolonged negotiations between the president and the party leaders in Congress over potential nominees. Achieving timely appointments has been a problem, and, even with the provision that existing members may stay on beyond the end of their terms, vacancies arise that make it harder to conduct commission business. Terms are for six years, and no reappointments are allowed. The position of chairperson rotates among members each year, and commissioners can serve only once as chair. The lack of continuity of both the membership and the leadership of the FEC makes it difficult for commissioners to develop collegiality and bonds of trust.
The three Cabinet-parliamentary systems with commissions have been more successful than the US in developing an appointment process that supports non-partisan, efficient and credible performance. The experience in the US may be the worst-case example of what can happen under the commission model if steps are not taken to insulate a commission from political pressures of various kinds. In Canada, on the other hand, the appointment of a single professional to lead an agency has worked well over many decades.
Leaders play a major role in shaping the internal cultures of EMBs, which are exposed to continuous influences from wider political and administrative processes and cultures. The FEC and EAC face great difficulty in creating a strong, shared culture of professionalism because of the partisan backgrounds of their commissioners and the pressures to please the president, congressional leaders and senior party officials. In the four parliamentary systems we studied, there was a somewhat greater distance between the EMBs and direct political pressure, with the result that there is a greater opportunity to embed professional values into the organizational cultures.
This takes us further into the fundamental issue of achieving an appropriate balance between independence and professionalism on the one hand and accountability and responsiveness on the other.
Budgetary and Staffing Independence
Some measure of autonomy in determining the budget and staffing of a commission or agency is often seen as a critical factor in achieving independence. Requiring an EMB to negotiate its budget with the political executive and/or central budgetary agencies in government creates the risk of underfunding and interference in internal decision-making. Electoral management involves specialized knowledge and skills, and, therefore, the freedom to recruit, appoint and classify personnel can be important to maintaining both the independence and the effectiveness of electoral authorities. On the other hand, EMBs cannot be completely exempt from the changing financial realities of government.
The case studies describe the budgeting and staffing procedures in detail, so only some brief general observations will be provided here. In Cabinet-parliamentary systems, the constitutional principles of ministerial responsibility and the dynamics of power mean that EMBs are basically dependent on government decisions, although some safeguards exist to avoid political interference. One such safeguard is to have two budgets: one is an annual appropriation for its staffing and operating expenses, and it is approved by government and voted by Parliament; and the second is statutory authority to spend the money needed to stage elections and referendums.
The practice in Australia, India and New Zealand is for the commissions to negotiate the amount of the annual appropriation with the Treasury or the finance department. In the UK, the Electoral Commission previews its budgetary requirements with the all-party Speaker's Committee before government, and then Parliament approves the budget. Elections Canada operates both annual and statutory budgets. From 2006 to 2013, an advisory Speaker's panel, which included representatives from all parties, reviewed requests for increases to the budgets of all officers of Parliament, and ministers on the Treasury Board (a Cabinet committee) agreed to give the advisory panel's funding recommendations significant weight. In 2013, however, the government indicated that the panel would no longer be used for this purpose.
Another concern is the tendency by governments to treat EMBs as just another part of the departmental apparatus of government by insisting that they comply with a wide range of rules concerning, for example, human resource management, classification and compensation, and audit and evaluation. This tendency can give rise to the appearance of, or actual, interference by central agencies that exist to serve the prime minister and Cabinet. It is difficult for outside observers to determine how constrained electoral authorities are by central administrative policies and rules.
In the US, both the FEC and the EAC are required to obtain annual funding through the budgetary process inside the executive branch. This means that the Office of Management and Budget must approve their budgetary requests. They also fall under government-wide administrative policies, such as requirements to produce strategic plans and report annually on performance measures related to such plans.
External Accountability to Legislatures and the Public
The accountability relationships between electoral authorities and legislatures reflect the wider constitutional and political differences between parliamentary and congressional systems. In the UK and its four former colonies, parliaments have influence, but no real power. They must approve legislation and budgets; they stage question periods and hold committee hearings to make ministers and public servants answerable for their use of authority and resources. An increasing amount of information on the performance of all public bodies is being made available to all parliamentarians, although they seem to rarely use most of the information as a basis for accountability based on results. Parliaments can propose action, but governments decide what actions will be taken. Interest among parliamentarians in electoral-machinery issues is sporadic, often triggered by controversy or perceived threats to re-election.
In contrast, the US Congress is a powerful political force with the capacity to initiate, block and modify legislation and spending. Money matters greatly in national politics, so the FEC is naturally a target of congressional interest. Over the years, Congress has taken steps to remove authority from the FEC to the point where a regulatory watchdog designed to operate on a short leash has, according to the harshest critics, lost its capacity to bark let alone bite when it comes to enforcing campaign finance laws. In the case of the EAC, there have been suggestions by Republican legislators that its function of assisting state and local governments should be terminated or merged with that of the FEC. For the leadership of both commissions, there are annual accountability sessions before several congressional committees. Like parliamentarians, members of Congress seem more interested in fuelling political "fires" over election controversies than in preventing the outbreaks.
In the parliamentary countries, all of the EMBs operate under the terms of freedom of information or access to information laws, which provide complaint-based remedies for citizens when they are denied access to government information. There is a clear trend among the authorities toward proactive disclosure of electoral information, particularly through comprehensive websites. In the US, the FEC and EAC also fall under freedom of information legislation and are expected to conform to the policies of "open government" brought forward by the Obama administration.
Electoral authorities in all of the countries studied have adopted, to varying degrees, the "customer service" philosophy, which has pervaded thinking inside governments over the past several decades. Actions to facilitate participation and make the voting experience more satisfying are being adopted in all six countries.
If we should not oversell the importance of structure and procedures, we should also not overlook the importance of leadership and organizational culture in ensuring integrity in the electoral process. Being the chair of a commission or the chief electoral officer of an electoral agency presents some distinctive leadership challenges based mainly on the need to balance independence and professionalism against accountability and responsiveness. Leaders need strong character, courage, contextual intelligence, balanced judgment and effective communication skills. EMB leaders need to gain a reputation for integrity and credibility.
Current and Future Challenges
As demonstrated below in the case studies of the individual countries, the geographical, social, constitutional and political contexts greatly affect how elections are organized and conducted. On the other hand, there are also important similarities among the countries, including the policy and administrative challenges facing the EMBs, both in the present and into the future.
In all countries, elections have changed from being relatively simple events taking place on a local level to more complicated, national events that demand striking a balance between consistency across an entire country and responsiveness to local circumstances.
There have always been local and national dimensions to party campaigns. However, in the earlier stages of democracy in each country, a greater emphasis was placed on local candidates and local campaigns. Today, full-time professionals working out of centralized party "war rooms" direct campaign planning, strategies and tactics. To varying degrees in each country, campaigning has become a continuous activity that rises in intensity as election dates approach. The tactics and technologies of campaigning are constantly evolving as parties seek to gain political advantage in a highly competitive environment where winning every day, not just on election day, has become a preoccupation. Raising and spending money, always important in political life, has become a key dimension of partisan competition. Hyper-partisanship in the US and, to a lesser extent, in Canada and the UK have entangled EMBs in political controversy and may detract from their reputations as professional entities operating above the political fray.
All six political systems examined in this study exhibit disillusionment among voters, as reflected in opinion survey findings of lack of trust and confidence in politicians and political parties as well as declining voter turnout in elections. These symptoms of political malaise are particularly pronounced among younger voters, and the worry is that future generations will learn habits of non-participation. The causes of mistrust and disengagement are many, both long-term and more immediate. The structures, roles and activities of EMBs may at times contribute to disenchantment among voters, but the impacts are probably marginal compared to developments in the wider political environment. This means that EMBs will encounter limits and risks if they attempt to solve the so-called democratic deficit on their own.
The ongoing IT revolution has brought both benefits and costs to the electoral process. This is far too big a topic to be addressed fully here; suffice it to say that for both political parties and EMBs, IT has become a driver and enabler of changing practices.
For political parties, Internet-based technologies offer opportunities for both the positive purpose of connecting with and engaging citizens as well as the negative purpose of manipulating public opinion and electors. EMBs face great challenges in finding an appropriate balance between principles of free political communication and some measure of control over the growing use of social media by political parties, including for the purpose of raising money. Part of the challenge arises from outdated legislative and regulatory frameworks, which generally do not provide electoral authorities with adequate tools to monitor and enforce responsible behaviour by parties and candidates. A related problem is the dynamic nature of IT, which allows parties to continuously invent more sophisticated communications strategies and tactics.
The use of automated telephone calls (robocalls) to transmit political messages is an example of the challenges posed by IT. Such calls are less expensive than other media, but they can be annoying and misleading. The use of robocalls takes place in all six countries, but their use is most advanced in the US, as are the attempts to adopt laws and regulations to control their use.Footnote 1 Canada experienced its first controversy over robocalls during the 2011 election, and Elections Canada has submitted proposals to Parliament to avoid similar issues of alleged voter suppression in the next election, scheduled for October 2015.Footnote 2
All electoral bodies have experimented with IT as a means to improve voter turnout, increase voter satisfaction with the electoral process and reduce the costs of electoral administration. For example, recent on-demand postal voting has been used more extensively in Australia and the UK, and, while shown to provide these benefits, it has also led to allegations of voter fraud. Pilot projects on telephone and online voting have been conducted in several of the countries, but usually on a constituency or local election level. Many issues, such as integrity of the voting process and ensuring the privacy of voter information, will need to be resolved before national online voting is adopted.
The pace, breadth and depth of the changes taking place in the political environments of all countries have tested the limits of the legal frameworks for elections. Many electoral laws are out date and in need of replacement or modernization. In a country like the UK, a flurry of new laws has been enacted in the past two decades, and the challenge has been to ensure consistency and coherence in the legal framework. In many cases, the authority and regulatory tools available to EMBs do not match the policy and administrative challenges they face. Adapting the functions and authority of national EMBs in an era of intense, continuous political competition is difficult because no parties favour changes that might work to their disadvantage.
Return to source of Footnote 1 For a summary of legal actions at the national and state levels, see Illinois Legislative Assembly Legislative Research Unit 2010. See also regular reports in the magazine Campaigns & Elections at www.campaignsandelections.com.
Return to source of Footnote 2 See Elections Canada 2013c.