G.R. No. 132231 - Separate Concurring Opinion

G.R. No. 132231, March 31, 1998,
♦ Decision, Romero, [J]
♦ Concurring Opinion, Puno, [J]
♦ Concurring Opinion, Vitug, [J]
♦ Dissenting Opinion, Panganiban, [J]
♦ Dissenting Opinion, Romero, [J]

EMILIO M. R. OSMEÑA and PABLO P. GARCIA, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.

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:

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. The essence of the Buckley ruling is that "the concept that government may restrict the speech of some elements of society in order to enhance the relative voice of others is wholly foreign to the First Amendment . . ."2

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 Court recognized the state's 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), . . . 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 acknowledged 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:

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

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.7

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, levers of the political power are wielded more and more by the wealthy 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 candidate's 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.ℒαwρhi৷ Money talks in politics but it is not the specie of speech sanctified in our Constitution. If we allow money to monopolize 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 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, viz.: "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."8