Unfair Advantage: The Abuse of State Resources in Elections In the development of a new mode of analysis on the abuse of state resources in elections, IFES is concentrating first on these areas of inquiry in relation to a state’s institutional and financial resources. Although there are other issues that warrant examination – including political will and the oversight role played by civil society and other watchdog actors – these three areas (legal framework, independent oversight mechanisms, and effective remedies) provide a strong foundation for evaluating a state’s ability to prevent the abuse of state resources. Within this narrow focus, the authors are examining three specific categories of laws and regulations: 1) restrictions on state personnel; 2) restrictions on official government communications to the public; and 3) restrictions on the use of state funds and physical assets. This paper uses the comprehensive legal framework in the United States as a primary example of how these three types of restrictions can be addressed. It is worth noting at the outset that the purpose of this choice is not to indicate a general preference for the U.S. approach. Rather, with its decentralized election process, the U.S. offers a unique opportunity to examine the federal system, as well as a sampling of the various state-level legal and procedural approaches to preventing the misuse of state resources. Given that the U.S. has regulations in place that touch on each of the categories identified, an examination of this system provides a foundation for developing a comparative framework for analysis of legal systems globally. III. Legal Restrictions to Prevent the Abuse of State Resources i. Restrictions on State Personnel Within the overarching legal framework for elections, states should consider legal provisions placing some restrictions on the electoral activities of government personnel. These rules can range from general requirements of impartiality and neutrality to more specific regulations regarding “how and when campaigning in a personal capacity may be conducted,”29 including whether individuals in certain positions must resign from their current posts before declaring candidacy for elected office. Legal Requirements to Act Impartially In a 2013 IFES publication, Ohman highlighted the importance of establishing regulations that “compel State agencies and public employees to act impartially.”30 This view is echoed in the Venice Commission and OSCE/ODIHR’s 2016 Guidelines, which provide that “[t]he legal framework should provide explicit requirements for public employees to act impartially during the whole electoral process while performing their official duties. Such regulations should establish the impartiality and professionalism of the civil service.”31 Although Ohman acknowledges that these types of regulations are insufficient as a sole means of regulating the abuse of state resources, they can be beneficial in establishing a principle by which public employees must abide.32 Countries may use a variety of legislative and regulatory documents for this purpose, including the constitution as well as administrative and electoral codes. Relevant provisions may include legal requirements compelling state agencies and public employees to act impartially in all matters, or requirements to act impartially in relation to political parties, candidates, and election campaigns. The legislation might also demand political neutrality of institutions or institutional personnel key sections within the government structure, such as election management and law enforcement agencies. Venice Comm’n & OSCE/ODIHR, Joint Guidelines, supra note 10, at § A. 4. 2. TIDE, supra note 4, at 138. 31 Venice Comm’n & OSCE/ODIHR, Joint Guidelines, supra note 10, at § 3. 32 See TIDE, supra note 4, at 138. 29 30 5