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^{SEPARATE CONCURRING OPINION}

PUNO, J.:

In G.R. No. 132231, petitioners assail the constitutionality of Sec. 11(b) of R.A. No. 6646 and Resolution No. 2974 of the COMELEC implementing said law. They contend:

I

THE POLITICAL AD BAN IS MOVED BY AN INVALID LEGISLATIVE INTENT, ULTRA VIRES ON THE PART OF CONGRESS, AND VIOLATIVE OF THE VERY CONSTITUTIONAL PROVISION UPON WHICH IT IS SOUGHT TO BE GROUNDED.

II

CONTRARY OT THE HOLDING IN NATIONAL PRESS CLUB, THE POLITICAL AD BAN IS NOT LIMITED IN TIME AND SCOPE OF APPLICATION.

A. THE POLITICAL AD BAN IS NOT LIMITED IN DURATION; IT IS ABSOLUTE, ALL-ENCOMPASSING, COMPREHENSIVE AND UNLIMITED.

B. THE POLITICAL AD BAN IS NOT LIMITED IN SCOPE OF APPLICABILITY. INSOFAR AS THE CANDIDATES FREEDOM TO EXPRESS THROUGH THE MASS MEDIA, IT IS ABSOLUTE, ALL-ENCOMPASSING, COMPREHENSIVE AND UNLIMITED.

III

THE POLITICAL AD BAN UNDER SECTION 11(B), R.A. 6646 CONSTITUTES PRIOR RESTRAINT, AND CARRIES A HEAVY PRESUMPTION AGAINST VALIDITY.

IV

THE POLITICAL AD BAN IS NOT A REASONABLE NECESSARY MEANS TO ACHIEVE THE DESIRED END.

A. INSTEAD OF LEVELING THE PLAYING FIELD, INSOFAR AS THE USE OF MASS MEDIA FOR POLITICAL PURPOSES IS CONCERNED, THE POLITICAL AD BAN HAS ABOLISHED THE PLAYING FIELD.

B. THERE IS NO REASONABLE NECESSITY FOR THE AD BAN, BECAUSE IT DOES NOT PREVENT THE RICH CANDIDATE FROM USING HIS SUPERIOR RESOURCES TO THE UNDUE DISADVANTAGE OF THE POOR CANDIDATE.

C. THERE IS NO REASONABLE NECESSITY FOR THE POLITICAL AD BAN BECAUSE ADEQUATE SAFEGUARDS ARE LEGALLY IN PLACE IN ORDER TO PREVENT THE RICH CANDIDATE FROM TAKING UNDUE ADVANTAGE OF HIS SUPERIOR RESOURCES.

V

THE POLITICAL AD BAN VIOLATES THE RIGHT OF THE PEOPLE TO BE INFORMED ON MATTERS OF PUBLIC CONCERN.

VI

THERE IS NO NEED FOR EMPIRICAL DATA TO DETERMINE WHETHER THE POLITICAL AD BAN OFFENDS THE CONSTITUTION OR NOT.

The Solicitor General and the petitioners-in-intervention likewise contend that section 11(b) of R.A. No. 6646 is unconstitutional principally because it impairs freedom of speech and of the press.

A quick glance at petitioners arguments against section 11 (b) of R.A. No. 6646 will show that they are mere rehash of arguments in the NPC case. The lack of new arguments is a tribute to the brilliant majority decision and equally enlightening dissenting opinions in said case which petitioners now seek to reexamine. A repetition of the NPC rationale is thus unnecessary.

I wish, however, to advert to the dissent of Madam Justice Romero which cites Buckley v. Valeo,¹ a 1976 case where a divided US Supreme Court ruled that limits on campaign expenditures violate the guarantee of freedom of speech of some elements of society in order to enhance the relative voice of others is wholly foreign to the First Amendment .²cräläwvirtualibräry

A reading of American legal literature, however, will reveal that Buckley has been widely criticized by libertarians because its pro-business thrust has pernicious effects on efforts to achieve much needed electoral reforms.³ Typical of the criticisms is the observation of Wright that the Buckley Court has given protection to the polluting effect of money in election campaigns. As a result, our political system may not use some of its most powerful defenses against electoral inequalities.⁴ The barrage of criticisms caused the US Supreme Court to modify its absolute support for free speech in Buckley. In the 1990 case of Austin v. Michigan State Chamber of Commerce,⁵ it upheld the constitutionality of a Michigan law that prohibited corporations from using corporate treasury funds to support or oppose any candidate for office. Retreating from Buckley, the Austin Count recognized the states compelling interest in regulating campaign expenditure. Writing for the majority, Mr. Justice Thurgood Marshall, an icon of libertarians declared: Michigan identified as a serious danger the significant possibility that corporate political expenditures will undermine the integrity of the political process, and it has implemented a narrowly tailored solution to that problem. In his concurring opinion, the last of the libertarians in the US High Court, Mr. Justice Brennan, held: In MCFL, we held that a provision of the Federal Election Campaign Act of 1971 (FECA), x x x similar to the Michigan law at issue here, could not be applied constitutionally to a small, anti-abortion advocacy group. In evaluating the First Amendment challenge, however, we acknowledge the legitimacy of Congress concern that organizations that amass great wealth in the economic marketplace should not gain unfair advantage in the political marketplace.

There is less reason to apply the discredited Buckley decision in our setting. Section 11 (b) of R.A. No. 6646 is based on provisions of our Constitution which have no counterparts in the US Constitution. These provisions are:

Art. II, section 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.

Art. XIII, section 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.

Art. IX (c) (4). The Commission may, may during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits from the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor for public information campaigns and forms among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.

A member of the Constitutional Commission, now our distinguished colleague, Mr. Justice Hilario Davide, Jr., well explained these new wrinkles in our Constitution, viz.:

x x x

Aware of the lamentable fact in the Philippines, no gap between these two unavoidable extremes of society is more pronounced than that in the field of politics, and ever mindful of the dire consequences thereof, the framers of the present Constitution saw it fit to diffuse political power in the social justice provisions. Ours has been a politics of the elite, the rich, the powerful and the pedigreed. The victory of a poor candidate in an election is almost always an exception. Arrayed against the vast resources of a wealthy opponent, the former, even if he is the most qualified and competent, does not stand a fighting chance. Of course, there have been isolated instances but yet so few and far between when poor candidates made it.⁶cräläwvirtualibräry

He stressed that this thrust for political equality is an improvement of our past Constitutions which merely sought to establish equality in the economic and social fields.⁷cräläwvirtualibräry

It is difficult to think why such an egalitarian law like Section 11(b) of R. A. No. 6646 should be condemned when it equalizes the political opportunities of our people. The gap between the perfumed few and the perspiring many in our country is galloping at a frightening pace. As the cost of election spirals at an immoral speed, the levers of political power are wielded more and more by the wealthty alone. The subject law attempts to break this control by reducing the purchasing power of the peso of the rich in the political freemarket.

Political equality is a touchstone of democracy. The guaranty of freedom of speech should not be used to frustrate legislative attempts to level the playing field in politics. R.A. No. 6646 does not curtail speech as it no more than prevents the abusive use of wealth by the rich to frustrate the poor candidates access to media. It seems to me self-evident that if Congress can regulate the abuse of money in the economic market so can it regulate its misuse in the political freemarket. Money talks in politics but it is not the specie of speech sanctified in our Consititution. If we allow money to monopolize the media, the political freemarket will cease to be a market of ideas but a market for influence by the rich. I do not read freedom of speech as meaning more speech for the rich for freedom of speech is not guaranteed only to those who can afford its exercise. There ought to be no quarrel with the proposition that freedom of speech will be a chimera if Congress does not open the opportunities for its exercise. When the opportunities for exercise. When the opportunities for its exercise are obstructed by the money of the rich, it is the duty of Congress to regulate the misuse of money --- for in the political marketplace of ideas, when money win, we lose.

Let us not also close our eyes to the reality that in underdeveloped countries where sharp disparities in wealth exist, the threat to freedom of speech comes not only from the government but from vested interests that own and control the media. Today, freedom of speech can be restrained not only by the exercise of public power but also by private power. Thus, we should be equally vigilant in protecting freedom of speech from public and private restraints. The observation of a legal scholar is worth meditating, vis.: With the development of private restraints on free expression, the idea of a free marketplace where ideas can compete on their merits has become just as unrealistic in the twentieth century as the economic theory of perfect competition. The world in which an essentially rationalist philosophy of the first amendment was born has vanished and what was rationalism is now romance.⁸cräläwvirtualibräry

I vote to dismiss petition.

Endnotes:

---

¹ 424 US 1 (1976); see also First National Bank of Boston v. Belloti, 435 US 765 (1978).

² Id. At pp. 48-49.

³ Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality, 82 Col. L. Rev. No. 4 (May 1982); Abrogast, Political Campaign Advertising and the First Amendment: A Structural-Functional Analysis of Proposed Reform, 23 Akron L. Rev. 2091 (1989); Blum, the Divisible First Amendment: A Critical Functionalist Approach to Freedom of Speech and Electoral Campaign Spending, 58, N.Y.U.L. Rev. 1273 (1983).

⁴ Wright, op cit, p. 609.

⁵ 494 US 652 (1990).

⁶ Concurring Opinion in NPC v. COMELEC, 207 SCRA 19 (1992).

⁷ Id., at p. 18.

⁸ Barron, Access to the Press-A New First Amendment Right, 80 Harv. L. Rev. 1641 (1967).