Unfair Advantage: The Abuse of State Resources in Elections I. Introduction 1 The misuse of state resources can be a major corruptive force in the electoral process, as it introduces or exacerbates power inequalities and gives unfair electoral advantage to incumbents. These abuses – previously defined as “the undue advantages obtained by certain parties or candidates, through use of their official positions or connections to govern­mental institutions, to influence the outcome of elections”2 – can compromise the integrity of an election, and reduce public trust in the legitimacy of the process and its outcomes.3 Abuses of state resources for the purpose of influencing the electoral process can drain limited funds available for development, infrastructure, or social welfare projects; conversely, these projects may be launched around the campaign period to influence voters rather than being initiated when they are needed.4 The integrity of the private sector may be compromised as the government pressures companies for donations in exchange for continued business with the state.5 The long-term harmful effects of the abuse of state resources on the rule of law are palpable when public employees, courts and security forces go above the law – either intentionally or under duress – to act in the interest of a ruling party rather than the country.6 This paper, which is part of a broader legal research project focused on addressing the use and misuse of state resources, seeks to contribute to an ongoing global conversation on this subject.7 We are developing a globally comparative evaluation methodology, based on in-depth review of laws and regulations that address the abuse of state resources and the effectiveness of these provisions in deterring or remedying these abuses. The initiative focuses on the use of the legal and regulatory framework to prevent specific abuses related to a state’s institutional and financial resources (including restrictions on state personnel, official government communications to the public, and the use of state funds and physical assets). In the context of this larger study, this paper will identify examples of state Text in this paper has been drawn from research provided by Matthew Sanderson, Bryson Morgan, and Jeremy Lagelee at the Caplin & Drysdale law firm in Washington, D.C. The authors would also like to acknowledge the contributions of Alissandra Young and Heather Szilagyi in providing research assistance for this article and Chad Vickery, Katherine Ellena and Staffan Darnolf for their review and suggestions. 2 Org. for Sec. and Co-operation in Europe (OSCE)/ Office for Democratic Inst. and Human Rights (ODHIR), Handbook for the Observation of Campaign Finance 66 (2015). 3 See Bruno Speck & Alessandra Fontana, “Milking the system”: Fighting the Abuse of Public Resources for Reelection 1 (CHR Michelsen Institute (CMI)/ U4, U4 Issue No. 7, 2011). 4 See Int’l Found. for Electoral Sys. (IFES), Training in Detection and Enforcement (TIDE): Political Finance Oversight Handbook 135 (Magnus Ohman ed., 2013) [hereinafter TIDE]. 5 See Speck & Fontana, supra note 3, at 1. 6 See TIDE, supra note 4, at 135. 7 This research project seeks to address the abuse of state resources in elections. The global community is increasingly recognizing that such abuses confer clear benefits on incumbent politicians and parties and engender an unfair playing field that undermines electoral integrity. More broadly, they can erode the quality of democracy, the ability of state institutions to function, and the appropriate allocation of public resources. This research is being conducted in two phases: first, a comparative analysis of selected legal frameworks that regulate the use and abuse of state resources (including relevant enforcement mechanisms), and second, using findings from the first phase, development of an assessment methodology that measures the effectiveness of these legal structures in their country contexts, and produces specific recommendations for reforming or designing effective ASR frameworks and enforcement mechanisms. USAID funding supported the following areas of research in this paper: general literature review; in-depth analysis of Brazil, Georgia, and Sri Lanka; and illustrative examples from Ukraine, Mozambique, Nigeria, Kenya, Mongolia, Uganda, and Belarus. IFES funded all research regarding the United States legal framework governing the use of state resources. 1 1