The call for general elections on the next November 29 entails a limitation for the Government that should not be overlooked in the coming weeks. Since October 6, any institutional appearance, press conference following the Council of Ministers, or public intervention by its members in the exercise of their positions is subject to the demands for neutrality imposed by electoral legislation. And this, even though the electoral campaign, in the strict sense, does not begin until November 13.
The first complaints have not been long in coming, and they refer to the first day of the electoral period. The Central Electoral Board agreed on October 15 to open a sanctioning file against the president of the Government for his appearance at La Moncloa on October 6. The complaints filed questioned whether the president had used an institutional intervention to praise the achievements of his Government and criticize the opposition. The opening of the file does not imply per se the existence of an infringement, but it highlights the legal relevance that certain institutional statements acquire during an electoral process.
This is not a new controversy either. In 2021, the Supreme Court confirmed a fine of 500 euros imposed on the current president of the Government by the Central Electoral Board for granting a television interview at La Moncloa during the electoral period of 2019, which was later broadcast on the Government's Presidency website, also ignoring the warning made. The president also had to pay 2,420 euros to the Popular Party as court costs. The precedent is particularly illustrative because it demonstrates that the failure to comply with the duty of institutional neutrality has specific legal consequences.
Both episodes, which we venture will not be the only ones in this electoral process, place us before a question that needs to be considered: the meaning of institutional neutrality during the electoral period, and not just in the campaign. Where does the legitimate exercise of government functions end and where does the partisan use of institutions begin? It is, therefore, a matter of determining how to reconcile the legitimacy of a Government to continue developing and explaining its political action with the obligation to ensure that the electoral competition takes place under conditions of equality.
It is worth remembering, without going into details, that the electoral call does not suspend the competencies of the Government nor does it prevent it from making decisions. It also does not deprive its members of their status as political actors or the right to defend their ideas or projects. However, during the electoral period, the use of institutional means to convey certain political messages acquires a legal dimension that exceeds the usual partisan debate.
During the electoral period, the use of institutional means to convey certain political messages acquires a legal dimension that exceeds the usual partisan debate
The reason lies in the singular position of those who govern, who have material means, institutional authority, and a capacity for communication that those who do not occupy that position lack. These are inherent advantages of exercising power, but their use for partisan purposes can compromise the conditions of equality that should preside over any electoral contest.
Our legal framework offers an express response to this issue by trying to delineate what actions can be carried out. Article 50.2 of the Organic Law of the General Electoral Regime (LOREG) prohibits, from the call for elections until their celebration, any act organized or financed, directly or indirectly, by public authorities that contains references to achievements or accomplishments obtained, or that uses images or expressions coinciding or similar to those used in their own campaigns by any of the political entities participating in the elections. The third section also prohibits the inaugurations of public works or services or projects of these, without preventing their operation.
However, the application of these limitations poses a difficulty that is not resolved by a literal reading of the norm: where is the boundary between the legitimate explanation of a government policy and its use as an electoral propaganda tool?
Let’s think, for example, about any of the appearances after the Council of Ministers. It is perfectly legitimate for the government spokesperson to explain an economic measure that has just been approved, its recipients, its financing, or the objectives it pursues. Citizens have the right to know the decisions of their rulers, and the government has the responsibility to account for them.
However, the situation changes when that explanation transforms into a laudatory assessment of government management, into a partisan comparison with its adversaries, or into a defense of the continuity of the Executive. At that moment, the intervention may cease to respond to a strictly institutional purpose and acquire an electoral nature.
The situation changes when that explanation transforms into a laudatory assessment of government management
A similar situation occurs with future proposals. A government can inform about the regulatory projects it is processing or about the initiatives that are part of its ordinary action. But when it uses an official appearance to announce commitments that actually belong to its party's electoral program, the distinction between both functions begins to blur. It is not legally indifferent that the same proposal is presented at an electoral rally or from the press room of La Moncloa.
This differentiation has been the subject of a reiterated doctrine from the Central Electoral Board and the Supreme Court. The STS 1638/2024, of October 16, confirmed the two sanctions, of 2,500 and 2,200 euros, that the Central Electoral Board had imposed on the then government spokesperson, Isabel Rodríguez, for statements made in the press conferences after the Council of Ministers during the electoral period of the regional and municipal elections of May 2023. The Court thus endorsed the distinction between information about government decisions, fully legitimate, and expressions of praise for the management of the Executive or criticism of its political adversaries made using public resources, and reminded that article 50.2 delineates the exercise of the position, but does not prevent the person occupying it from expressing themselves freely outside of their institutional activity.
The jurisprudence also provides a particularly relevant element: the spontaneous nature of a statement does not by itself exclude its eventual unlawfulness. The fact that a minister responds to a question posed by a journalist does not exempt him from the duty of neutrality that corresponds to him when he intervenes in his institutional capacity. The content of the response remains subject to the same legal requirements.
We are, therefore, facing a limitation on the partisan use of the media and the authority provided by the public office, and not a generic prohibition on speaking about politics.
The existence of these limits also opens an important space for legal control for political formations. The LOREG assigns to the electoral administration the function of ensuring transparency, objectivity of the process, and equality among the candidacies. Parties can report to the competent electoral board those actions they consider contrary to the duty of institutional neutrality, providing the statements, recordings, or communications that allow for the assessment of the potential infringement.
The filing of a complaint does not imply, of course, that the reported action is unlawful. It will be up to the electoral board to examine the content of the statements, their context, and the circumstances in which they occurred. If it finds a violation of the regulations, it may require the cessation of the conduct, urge that it not be repeated, order, when appropriate, the withdrawal of institutional content, or agree to open a sanctioning procedure.
The spontaneous nature of a statement does not by itself exclude its eventual unlawfulness
The consequences may exceed the mere requirement of the electoral board. Article 153.1 of the LOREG provides for fines ranging from 300 to 3,000 euros for authorities or officials responsible for electoral infractions that do not constitute a crime. In fact, the Central Electoral Board has imposed sanctions for actions of this nature, some of which have been subsequently confirmed by the Supreme Court.
The system also includes review mechanisms. Article 21 of the LOREG allows for the appeal of certain agreements of the electoral boards before the higher board, with a period of twenty-four hours for filing from its notification and a particularly brief processing during electoral processes. This is supplemented by the possibility of resorting to contentious-administrative jurisdiction against resolutions subject to judicial review, including sanctions imposed by the Central Electoral Board.
These mechanisms acquire special importance during the coming weeks, when the public interventions of the Government will be subjected to particularly intense scrutiny. However, it would be advisable to avoid that the possibility of denouncing any statement ends up becoming the intention to prohibit any manifestation of political content. Not every governmental intervention susceptible to controversy constitutes an electoral infringement.
Institutional neutrality should not be confused with a supposed ideological neutrality of the ruler. Any member of the Government remains a political responsible who can defend their ideas, explain their proposals, or confront them with those of their adversaries. What the legal framework limits is that they use the resources, authority, and institutional instruments at their disposal to do so in favor of a particular electoral option.
The distinction has an importance that transcends the political context. In a democratic rule of law, the exercise of public power is subject to limits that guarantee both the freedom of citizens and equality among those who compete to govern them. The Administration does not belong to the party that temporarily occupies the Government, nor can its means become an extension of its electoral structure, no matter how much reality tries to get us used to it.
Hence, we must interpret the demands for institutional neutrality as a guarantee of political pluralism and the freedom of choice of citizens. Respect for these rules does not constitute a concession to the opposition parties, but rather an obligation that equally applies to any formation that exercises government responsibilities.
And the fact is that democratic alternation does not depend solely on citizens being able to periodically choose their representatives. It also requires that those who exercise power respect the conditions that allow others to compete for it on equal terms. Governing during an electoral process is legitimate and necessary. Using institutions to gain a partisan advantage is, precisely, what our legal framework seeks to prevent.