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CASE IN POINT: Overspending


The 2016 election is just a few months away. As said in our previous case in point, “A politician thinks of the next election; a statesman of the next generation.” Are there still statesmen in our midst? Gone are the days of Quezon, Recto, Tanada, Sumulong, Diokno, Gonzales to name a few. Today, when one manifests his intention to run for public office, his peers ask the question, “Do you have money to spend?” This is the lesson that everyone should learn from the case in point because to over spending, a governor was disqualified and finally removed from office.

In a petition filed by Edgar San Luis to disqualify ER Ejercito, he claimed that the advertising between ABS-CBN Corporation and Scenema Concept International, Inc. were executed by an identified supporter without his knowledge and consent as, in fact, his signature thereon was obviously forged. Even assuming that such contract benefited him, he alleges that he should not be penalized for the conduct of third parties who acted on their own without his consent. Citing Citizens United v. Federal Election Commission, 558 U.S. 2310 [2010], he argued that every voter has the right to support a particular candidate in accordance with the free exercise of his or her rights of speech and of expression, which is guaranteed in Section 4, Article III of the 1987Constitution. He believed that an advertising contract paid for by  a third party without the candidate’s knowledge and consent must be considered a form of political speech that must prevail against the laws suppressing it, whether by design or inadvertence. Further, Ejercito advanced the view that COMELEC Resolution No. 9476 distinguishes between “contribution” and “expenditure” and makes no proscription on the medium or amount of contribution. He also stressed that it is clear from COMELE Resolution No. 9615 that the limit set by law applies only to election expenditures of candidates and not to contributions made by third parties. For Ejercito, the fact that the legislature imposes no legal limitation on campaign donations is presumably because discussion on public issues and debate on the qualifications of candidates are integral to the operation of the government. Rule on his contentions. Explain.

Held: The contentions of Ejercito are not correct. The advertising contracts submitted in evidence by San Luis as well as those in legal custody of the COMELEC belie his hollow assertion. His express conformity to the advertising contracts is actually a must because non-compliance is considered as an election offense. (Sec. 13, R.A. No. 9006).

R.A. No. 9006 explicitly directs that broadcast advertisements donated to the candidate shall not be broadcasted without the written acceptance of the candidate, which shall be attached to the advertising contract and shall be submitted to the COMELEC, and that, in every case, advertising contracts shall be signed by the donor, the candidate concerned or by the duly-authorized representative of the political party. (R.A. No. 9006, Secs. 4.3 and 6.3). Conformably with the mandate of the law, COMELEC Resolution No. 9476 requires that election propaganda materials donated to a candidate shall not be broadcasted unless it is accompanied by the written acceptance of said candidate, which shall be in the form of an official receipt in the name of the candidate and must specify the description of the items donated, their quantity and value, and that, in every case, the advertising contracts, media purchase orders or booking orders shall be signed by the candidate concerned or by the duly authorized representatives of the party and, in case of a donation, should be accompanied by a written acceptance of the candidate, a party or their authorized representatives. (Rule 5, Sections 1 and 2). COMELEC Resolution No. 9615 also unambiguously states that it shall be unlawful to broadcast any election propaganda donated or given free of charge by any person or broadcast entity to a candidate without the written acceptance of the said candidate and unless they bear and be identified by the words “airtime for this broadcast was provided free of charge by” followed by the true and correct name and address of the donor. (Sec. 7(b); Emilio Ramon “E.R.” Ejercito v. COMELEC, et al., G.R. No. 212398, November 25, 2014).

Contention on no limitation on campaign donations.

It was contended that the legislature imposed no legal limitation on campaign donations. He vigorously asserted that COMELEC Resolution No. 9476 distinguishes between “contribution” and “expenditure” and makes no proscription on the medium or amount of contribution made by third parties in favor of the candidates, while the limit set by law, as appearing in COMELEC Resolution No. 9615, applies only to election expenditures of candidates. In brushing aside such contention, the Supreme Court ruled:

Section 13 of R.A. No. 7166 sets the current allowable limit on expenses of candidates and political parties for election campaign, thus:

SEC. 13. Authorized Expenses of Candidates and Political Parties. – The aggregate amount that a candidate or registered political party may spend for election campaign shall be as follows:
(a) For candidates – Ten pesos (P10.00) for President and Vice President; and for other candidates, Three pesos (P3.00) for every voter currently registered in the constituency where he filed his certificate of candidacy: Provided, That, a candidate without any political party and without support from any political party may be allowed to spend Five pesos (P5.00) for every such voter; and
(b) For political parties - Five pesos (P5.00) for every voter currently registered in the constituency or constituencies where it has official candidates.

Any provision of law to the contrary notwithstanding, any contribution in cash or in kind to any candidate or political party or coalition of parties for campaign purposes, duly reported to the Commission, shall not be subject to the payment of any gift tax.

Sections 100, 101, and 103 of the OEC are not repealed by R.A. No. 7166. These provisions, which are merely amended insofar as the allowable amount is concerned, read:

SECTION 100. Limitations upon expenses of candidates. – No candidate shall spend for his election campaign an aggregate amount exceeding one peso and fifty centavos for every voter currently registered in the constituency where he filed his candidacy: Provided, That the expenses herein referred to shall include those incurred or caused to be incurred by the candidate, whether in cash or in kind, including the use, rental or hire of land, water or aircraft, equipment, facilities, apparatus and paraphernalia used in the campaign: Provided, further, That where the land, water or aircraft, equipment, facilities, apparatus and paraphernalia used is owned by the candidate, his contributor or supporter, the Commission is hereby empowered to assess the amount commensurate with the expenses for the use thereof, based on the prevailing rates in the locality and shall be included in the total expenses incurred by the candidate.

SECTION 101. Limitations upon expenses of political parties. – A duly accredited political party may spend for the election of its candidates in the constituency or constituencies where it has official candidates an aggregate amount not exceeding the equivalent of one peso and fifty centavos for every voter currently registered therein. Expenses incurred by branches, chapters, or committees of such political party shall be included in the computation of the total expenditures of the political party.

Expenses incurred by other political parties shall be considered as expenses of their respective individual candidates and subject to limitation under Section 100 of this Code.

SECTION 103. Persons authorized to incur election expenditures. – No person, except the candidate, the treasurer of a political party or any person authorized by such candidate or treasurer, shall make any expenditure in support of or in opposition to any candidate or political party. Expenditures duly authorized by the candidate or the treasurer of the party shall be considered as expenditures of such candidate or political party.

The authority to incur expenditures shall be in writing, copy of which shall be furnished the Commission signed by the candidate or the treasurer of the party and showing the expenditures so authorized, and shall state the full name and exact address of the person so designated.

The focal query is: How shall We interpret “the expenses herein referred to shall include those incurred or caused to be incurred by the candidate” and “except the candidate, the treasurer of a political party or any person authorized by such candidate or treasurer” found in Sections 100 and 103, respectively, of the OEC? Do these provisions exclude from the allowable election expenditures the contributions of third parties made with the consent of the candidate? The Court holds not.

When the intent of the law is not apparent as worded, or when the application of the law would lead to absurdity, impossibility or injustice, extrinsic aids of statutory construction may be resorted to such as the legislative history of the law for the purpose of solving doubt, and that courts may take judicial notice of the origin and history of the law, the deliberations during the enactment, as well as prior laws on the same subject matter in order to ascertain the true intent or spirit of the law.

Looking back, it could be found that Sections 100, 101, and 103 of the OEC are substantially lifted from P.D. No. 1296, as amended. Sections 51, 52 and 54 of which specifically provide:

Section 51. Limitations upon expenses of candidates. No candidate shall spend for his election campaign an amount more than the salary or the equivalent of the total emoluments for one year attached to the office for which he is a candidate: Provided, That the expenses herein referred to shall include those incurred by the candidate, his contributors and supporters, whether in cash or in kind, including the use, rental or hire of land, water or air craft, equipment, facilities, apparatus and paraphernalia used in the campaign: Provided, further, That, where the land, water or air craft, equipment, facilities, apparatus and paraphernalia used is owned by the candidate, his contributor or supporter, the Commission is hereby empowered to assess the amount commensurate with the expenses for the use thereof, based on the prevailing rates in the locality and shall be included in the total expenses incurred by the candidate.

In the case of candidates for the interim Batasang Pambansa, they shall not spend more than sixty thousand pesos for their election campaign.

Section 52. Limitation upon expenses of political parties, groups or aggrupations. A political party, group or aggrupation may not spend for the election of its candidates in the constituency or constituencies where it has official candidates an aggregate amount more than the equivalent of fifty centavos for every voter currently registered therein: Provided, That expenses incurred by such political party, group or aggrupation not duly registered with the Commission and/or not presenting or supporting a complete list of candidates shall be considered as expenses of its candidates and subject to the limitation under Section 51 of this Code. Expenses incurred by branches, chapters or committees of a political party, group or aggrupation shall be included in the computation of the total expenditures of the political party, group or aggrupation. (Emphasis supplied)

Section 54. Persons authorized to incur election expenditures. No person, except the candidate or any person authorized by him or the treasurer of a political party, group or aggrupation, shall make any expenditure in support of, or in opposition to any candidate or political party, group or aggrupation. Expenditures duly authorized by the candidate of the treasurer of the party, group or aggrupation shall be considered as expenditure of such candidate or political party, group or aggrupation.

The authority to incur expenditures shall be in writing, copy of which shall be furnished the Commission, signed by the candidate or the treasurer of the party, group or aggrupation and showing the expenditure so authorized, and shall state the full name and exact address of the person so designated. (Emphasis supplied)

Prior to P.D. No. 1296, R.A. No. 6388 (otherwise known as the “Election Code of 1971”) was enacted. Sections 41 and 42 of which are relevant, to quote:

Section 41. Limitation Upon Expenses of Candidates. – No candidate shall spend for his election campaign more than the total amount of salary for the full term attached to the office for which he is a candidate.

Section 42. Limitation Upon Expenses of Political Parties and Other Non-political Organizations. – No political party as defined in this Code shall spend for the election of its candidates an aggregate amount more than the equivalent of one peso for every voter currently registered throughout the country in case of a regular election, or in the constituency in which the election shall be held in case of a special election which is not held in conjunction with a regular election. Any other organization not connected with any political party, campaigning for or against a candidate, or for or against a political party shall not spend more than a total amount of five thousand pesos.

Much earlier, Section 12 (G) of R.A. No. 6132, which implemented the resolution of both Houses of Congress calling for a constitutional convention, explicitly stated:

Section 12. Regulations of Election Spending and Propaganda. The following provisions shall govern election spending and propaganda in the election provided for in this Act:
x x x
(G) All candidates and all other persons making or receiving expenditures, contributions or donations which in their totality exceed fifty pesos, in order to further or oppose the candidacy of any candidate, shall file a statement of all such expenditures and contributions made or received on such dates and with such details as the Commission on Elections shall prescribe by rules. The total expenditures made by a candidate, or by any other person with the knowledge and consent of the candidate, shall not exceed thirty-two thousand pesos.

In tracing the legislative history of Sections 100, 101, and 103 of the OEC, it can be said, therefore, that the intent of our lawmakers has been consistent through the years: to regulate not just the election expenses of the candidate but also of his or her contributor/supporter/donor as well as by including in the aggregate limit of the former’s election expenses those incurred by the latter. The phrase “those incurred or caused to be incurred by the candidate” is sufficiently adequate to cover those expenses which are contributed or donated in the candidate’s behalf. By virtue of the legal requirement that a contribution or donation should bear the written conformity of the candidate, a contributor/supporter/donor certainly qualifies as “any person authorized by such candidate or treasurer.” Ubi lex non distinguit, nec nos distinguere debemus. (Where the law does not distinguish, neither should We.) There should be no distinction in the application of a law where none is indicated.

The inclusion of the amount contributed by a donor to the candidate’s allowable limit of election expenses does not trample upon the free exercise of the voters’ rights of speech and of expression under Section 4, Article III of the Constitution. As a content-neutral regulation,127 the law’s concern is not to curtail the message or content of the advertisement promoting a particular candidate but to ensure equality between and among aspirants with “deep pockets” and those with less financial resources. Any restriction on speech or expression is only incidental and is no more than necessary to achieve the substantial governmental interest of promoting equality of opportunity in political advertising. It bears a clear and reasonable connection with the constitutional objectives set out in Section 26, Article II, Section 4, Article IX-C, and Section 1, Art. XIII of the Constitution. Indeed, to rule otherwise would practically result in an unlimited expenditure for political advertising, which skews the political process and subverts the essence of a truly democratic form of government.

COMELEC has discretion to take judicial notice of Advertising Contracts.

Pursuant to Section 2, Rule 129, the COMELEC has the discretion to properly take judicial notice of the Advertising Contract.

The COMELEC may properly take and act on the advertising contracts without further proof from the parties herein.  Aside from being considered as an admission (Sec. 26. Rule 130 of the Rules of Court) and presumed to be proper submissions from them, the COMELEC already has knowledge of the contracts for being ascertainable from its very own records. Said contracts ought to be known by the OMELEC because of its statutory function as the legal custodian of all advertising contracts promoting or opposing any candidate during the campaign period. The COMELEC has the authority and discretion to compare the submitted advertising contracts with the certified true copies of the broadcast logs, certificates of performance or other analogous records which a broadcast station or entity is required to submit for the review and verification of the frequency, date, time, and duration of advertisements aired. (RA 9006; Secs. 4 & 6).
______________
Dean Ed Vincent S. Albano is the Bar Review Director of Albano Bar Review Center. He authored books/reviewers in Civil Law, Political,  Law, Remedial Law and Legal Ethics.

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