3.1.2 Advisory Services

The importance of providing good advice and guidance cannot be emphasised enough. We often focus on the oversight body’s role in pursuing potential violations of the law and thus neglect their broader purpose, namely, to ensure compliance with the rules.

Compliance assurance begins with making sure those who wish to comply with the law know and understand their legal obligations. As the oversight body with expertise in the applicable legislation and how it operates in practice, you are best positioned to provide advisory services. If you fulfill this function well, the number of inadvertent breaches diminishes, allowing you to target enforcement resources on the more important violations. Political parties and politicians are viewed negatively in many countries and reducing the number political finance violations committed can help stem the erosion of public trust and confidence in the electoral process. Moreover, focusing on advisory services helps you demonstrate that responsibility for non-compliance lies with the regulated community, not with the Oversight Institution.

Political parties, candidates, non-contestant campaigners and others who are subject to the country’s political finance laws are likely to be the primary users of advisory services. However, it is worth considering other audiences such as journalists, civil society organisations and even members of the general public when developing advisory tools. These groups and individuals can be a prime audience for advisory services, both as regulated entities but also as advocates for and monitors of compliance with the law.

There are a wide variety of tools to choose from for delivering advice and guidance and, subject to the legislation in your jurisdiction you should consider using a mixture of the following:

• Written guidance material
• Training programmes 
• Webinars
• Frequently asked questions
• Formal requests for advice
• Online videos (examples from Elections Canada)
• Hotlines

Below we discuss basic principles that may help may guide your approach when developing your advice and guidance programme.

A detailed case study of advisory services provided by the Central Election Commission of Bosnia and Herzegovina is available here (Bosnia and Herzegovina, Case Study on using new technologies to enhance reporting, communication and advisory support for political parties.pdf).

3.1.2.1 General principles for advisory services

When designing your advice and guidance programme, it is important to consider the various audiences and their needs:

What information is most important for the intended audience? It is important to consider the needs of your audience and to tailor the guidance to their needs. Determining what information is most important for a particular audience will depend on the country’s political finance system. Political parties, for example, may need to be informed of a broader range of legal obligations (e.g. annual reporting, consolidated reporting of expenditure, etc) where they have responsibility for reporting, whereas some of that information may be irrelevant to candidates if the regulatory system does not impose such requirements on them. Also, the depth and type of advice needed by established/experienced parties/candidates may differ from that which is needed by newer, less experienced parties/candidates.

1. When is guidance needed? Guidance that is not timely loses its effectiveness. Information for candidates should be available during the candidate nomination process; campaign related information for political parties ideally should be available before the regulated election period begins. Similarly, if operating a hot-line, callers need to be offered help within a reasonable time. Special efforts to provide guidance and training should be made whenever the laws or rules change.
2. Is the advisory service offered user-friendly? Written guidance that merely repeats the law in legalistic language will not be very accessible to many users. If feasible, preparation of formal guidance should involve both legal and communication experts. It is also worth considering accessibility issues so that persons with disabilities are not disadvantaged.
3. What are the limits to advice and guidance? The primary goal of providing services is to help those who wish to comply with the law to do so. It is important, however, to reinforce their need to know the law. This can be done by including a disclaimer that the guidance is not intended to replace the law or change its meaning. Nonetheless, at least in the absence of formal method for getting a binding opinion, your messaging should stress that by following your guidance and advice, a campaigner’s actions will likely be consistent with the rules and thus diminish the likelihood of them getting into legal trouble.
4. Is the guidance readily available? Country context will influence how advice and guidance is disseminated. In smaller countries, it may be feasible to hold centralised training programmes whereas regional ones may be more appropriate in other countries. Online webinars may be standard practice in some countries, unreliable internet may make this option less attractive in others.
5. How to reach your intended audience? Publication of information on-line provides a resource for those who make the effort to consult the oversight body’s website. Oversight institutions can be more proactive in their outreach via social media postings or by using a compiled contact database to send political parties and candidates last-minute updates, reminders and other relevant information. In fact, it is better practice to send information directly to candidates rather than to rely on political parties to forward information to them.
6. Should requests for advice and guidance be tracked? Tracking such requests can be helpful for a couple of reasons. First, it allows you to see where there is uncertainty about the law or its application. This enables you to highlight those particular areas in trainings, guidance and in frequently asked questions (FAQs) on your website. Second, sometimes those accused of violating the law will argue that they acted in accordance with advice received from the oversight body. A record of the advisory requests and responses given can help confirm or deny such assertions.

3.1.2.2 Tools for delivering advice and guidance

Written guidance material

Written guidance or manuals can be a very useful tool in setting out legal requirements and best practice for political parties, candidates and other regulated entities such as non-contestant campaigners. The target audience should be clearly identified from the outset in the development process, and it also may be useful to include a reference about the intended audience within the document itself.

In drafting guidance, place yourself in the shoes of the intended user. You will need to determine what information is most relevant to them and how best to present the information so that it is not overly complicated. It can be useful include tips, signal points that are important and to provide references on how to get additional information. You can, for example, place flags or boxes in the margins, change the size of font or use a different colour to highlight key points.

It can be valuable to ‘road-test’ the type of guidance produced with the ultimate users through an existing consultative committee or by asking for feedback from a sample of the intended users. It is good practice to ask users to evaluate guidance products at regular intervals or after an electoral event. This allows you to make the guidance more useful and to maintain its currency.

Some examples of written guidance documents:

1. Elections Canada: Political Financing Handbook for Registered Parties and Chief Agents
2. UK Electoral Commission Guidance to political parties
3. Guidance by the US Federal Election Commission

Training programmes

Training programmes require intense planning and thorough preparation. A good starting point is to define the rationale for the training, and then identify its objectives and who should attend the training. In selecting the participants, it may be relevant to consider whether to bring representatives from different political parties together or to hold separate trainings for each political party or coalition of parties. In some countries, political parties/candidates may not wish to engage with or share their regulatory concerns with opposing parties/candidates. Where separate trainings are held, it is important to ensure that the same information, advice and interpretations are given to all training participants to ensure consistency.

The next step is to develop an agenda for the facilitators. The facilitator training agenda should set detail for each session of the training program and address the following areas:

• the time allocated to the session
• a topical heading of what will be covered in the session
• the identity of who will be delivering the session
• a more detailed outline of the session’s content
• an indication of what the segment consists of, e.g., presentation, group work or feedback
• materials needed, e.g. flip charts, projectors, sticky sheets, pens
• learning outcomes for the segment

In creating the agenda, make sure that there are an adequate number of well-placed breaks, which can be much needed by both facilitators and participants. The first segment often consists of an introduction (of both facilitators and participants), clarifying the course’s objectives and setting any desired ground rules (e.g. ensuring confidentiality of what is said, treating each other with respect, etc.) Thought could also be given to having an icebreaker which allows participants to get involved early-on, helps establish a good working rapport among participants and can shed light on the participants’ experience with the subject matter of the training programme.

Thought should also be given to ‘ground rules’ for the training. For example, you will want to agree with the participants whether the discussions are to be kept confidential and to establish whether the trainers’ responses to questions raised are legally binding. Agreeing ground rules also allows you, as the trainer, to set expectations about timing and participation.

Training programmes that include case studies or scenarios enable participants to apply the course content to concrete examples and thus help solidity learning. They also serve as a mechanism to explore ambiguous or difficult areas of the law.

It is good practice to evaluate training programmes. One method is to test how much the participants learned as a result of the programme. This can be achieved by administering a pre-test to assess their knowledge before the training and then to re-run the test afterward to see if there has been improvement. If participants are given a random number which they place on their pre and post- training tests, you can monitor changes in knowledge while keeping the tests anonymous. A short questionnaire distributed at the end of the training or sent to participants a day or two later can elicit feedback that sheds light on what participants liked or disliked about the training so that improvements can be made.

Webinars

Until a few years ago, seminars held online were relatively rare. This is no longer true; virtual workshops and trainings are now common. Many of the considerations discussed for training programmes apply, but there are some specific factors to consider for webinars and online training modules:

• Fatigue can be a significant factor and shorter programmes may prove more effective
• Body language is largely absent which can impact on communication between participants and facilitator and amongst participants
• Breakout groups can be a way to get discussions going but need careful planning and explanation
• It is important to be familiar and adept with the platform used for the virtual training

Frequently asked questions

A list of frequently asked questions on the oversight institution’s website is an effective way to respond quickly to standard queries and can help educate, inform and guide political parties, candidates, journalists and others.

In selecting questions to be included, you may want to highlight key regulatory requirements, areas that have proven problematic in terms of non-compliance and queries raised by stakeholders through hotlines and other requests for advice and guidance.

Here is an excellent example of a FAQs by the Electoral Commission of South Africa.

Formal requests for advice

In some countries, political finance legislation expressly provides a formal process for obtaining an advisory opinion from the oversight institution. In the USA and Canada, for example, the oversight institution may be barred from taking enforcement action against someone who has acted in good faith in accordance with an advisory opinion. In this sense, the formal advisory opinion process serves as a ‘safe-harbour’ for those subject to regulation.

If the law in your jurisdiction explicitly or implicitly authorises you to issue advisory opinions, it would good practice to have a policy in place that addresses:

• Who may file a request for an advisory opinion: Requiring the requestor to be the one wishing to engage in the activity in question avoids electoral opponents from using the advisory opinion process for party political purposes (e.g. strategically using the process to get the oversight institution to ban activity they think the opponent is going to undertake).
• What activity may be the subject of an advisory opinion request: The request should relate to a specific activity to be undertaken (as opposed to a general question of interpretation) and the description of the activity to be undertaken should be sufficiently detailed and complete.
• What the process is for obtaining an advisory opinion: This will include requiring the request to be in writing, making it public, allowing others to comment on the request and the timeline for the oversight institution to respond to the request (see Advisory opinions.pdf).
• How long does the oversight institution have to respond to an advisory request: This avenue for seeking assistance will lose its relevance if there is no time set or too long a time is set for obtaining answers to questions.
• How to guard against potential misuse of the advisory opinion process: It may help to include language in the opinion issued which limits its application to the facts presented in the request. For an example used in the US, see the last page of the document Advisory opinions.pdf.
• Can the requestor challenge an advisory opinion if the requestor disagrees with it: Consideration needs to be given to whether there will be a mechanism for a requestor to appeal the advice provided. The oversight institution will also need to consider whether the undertaking of an action it concluded would be prohibited in an advisory opinion will be considered an aggravating factor when considering enforcement.

Hotlines

Electoral campaigns can be fast moving environments where issues arise that demand quick resolution. Oversight institutions can help address this need by operating a hotline that offers a way for campaigners to get answers promptly to their questions. Hotlines often consist of a dedicated telephone number which campaigners can call for help. However, the same principles and practicalities would apply to a text-based service such as WhatsApp or iMessage.

• Set a performance target for responding to hotline calls: Users need to know who long they might have to wait to get an answer to their concern.
• Be sure the hotline is monitored sufficiently to meet your performance target: Staff need to be assigned to monitor and respond to incoming queries. If responsibility for doing this is not clearly allocated or hotline queries go unanswered, the oversight institution’s reputation may suffer, and campaigners may become disgruntled.
• Prepare answers for standard questions in advance: This will save time and help ensure consistency in how questions are answered.
• Establish an escalation system for difficult questions: Some questions will present novel issues that will require considered thought. It helps to have a system in place for how these questions can be escalated to the appropriate decision-maker.
• Track questions asked: Tracking allows the oversight institution to ensure the consistency of advice given and to garner an understanding of areas and issues that campaigners find challenging or ambiguous. The oversight institution may use this information to change its written guidance, shape future training programmes or to add entries to its Frequently Asked Questions. You will need to decide whether to allow anonymous requests. There is an argument that doing so may increase the number of requests received.