MANILA, Philippines - Political strategist Malou Tiquia has observed a consistent pattern in the 2010 presidential elections and the 2013 midterm elections.
"It would appear," she says, "that there is now a pre-campaign expenditure and a campaign proper expenditure."
Indeed, in the runup to the recently concluded polls, several candidates showed a penchant for spending on TV ads prior to the campaign period. In the three months preceding the start of the official campaign period, or from Nov. 11, 2012 to Feb. 11, 2013, the "advocacy" ad values of 14 senatorial candidates and two coalitions had already amounted to nearly P850 million, based on the network's published rate cards, according to Nielsen data.
Applying a 50-percent "agency discount" on these rate-card pegged ad values would bring down the pre-campaign indicative real ad spend of these 16 entities to P424.87 million. But that's still a hefty monthly ad spend of P141.6 million, or P4.7 million a day before the official campaign period had even begun.
(TV network executives have told PCIJ in 2010 that the advertising rates they give to ad buyers or media agencies – the so-called "agency rate" – could be lower by as much as 50 percent than the networks' published rate cards.)
The top spot among ad placers pre-campaign period went to United Nationalist Alliance (UNA) coalition candidate and political newcomer Nancy Binay, who logged a total of 130 minutes for 260 spots in the three months preceding the official campaign period, or from Nov. 11, 2012 to Feb. 11, 2013. Altogether, Binay's ads were estimated to have cost P52.67 million.
The top ad placer during the campaign period, NP candidate Cynthia Villar, had also invested a substantial amount in TV ads before the official campaign period began last Feb. 12. In the three months preceding the official campaign period alone (beginning November 11, 2012), Villar had logged a total of 60.5 minutes for 121 ads. The total indicative real cost of Villar's pre-campaign ads amounted to P33.9 million.
Besides Villar and Binay, eight other winning senatorial candidates placed ads on television in the three months preceding the official campaign period. Four other senatorial candidates who eventually lost in the May 13 polls likewise bought ad spots before the official campaign period. The ad buys of two of them – Juan Miguel ‘Migz’ Zubiri and Juan ‘Jack’ Ponce Enrile Jr. – were even higher than those of the winning candidates pre-campaign period.
Yet however substantial the ad spending pre-campaign is, Comelec has no jurisdiction over it. That is because of the Supreme Court ruling on the case of Penera vs Comelec, in which the High Court set the definition of a candidate to take effect only at the start of the official campaign period, effectively rendering the concept of premature campaigning meaningless.
Technically, thus, even though a candidate has already filed his or her Certificate of Candidacy (CoC), that candidate’s campaign spending and advertising minutes will not yet be monitored by Comelec until the official campaign period kicks off. To their discredit, there have been candidates who have seemingly taken advantage of this rather golden opportunity, especially when it came to placing ads.
"Because of that ruling, you are technically not a candidate yet,” Tiquia says. “You can do whatever you want to do, so you can build your brand.” The only problem that candidates would have to contend with is how well they would be able to develop and evolve their campaign storyline from the pre-campaign period toward the campaign proper.
But of even graver concern for Comelec Commissioner Christian Robert S. Lim when it comes to pre-campaigning is the issue of acceptance of campaign donations. This is especially, he says, when an incumbent official is involved.
Of the 33 candidates who ran for senator in the May 13, 2013 elections, six were re-electionists while six others had occupied lower posts in government immediately prior to their senatorial bid.
An incumbent official who files his or her CoC either for re-election or for another post has already publicly declared his serious intention to run, observes Lim. This, he says, gives a signal to contributors to already donate money for said official's campaign. But because the law's definition of a candidate would only take effect upon the start of the official campaign period, the incumbent in question is technically not a candidate yet.
It’s a situation that has baffled even a seasoned election lawyer such as Lim. "How can you term the contribution?” he asks. “Is it by reason of office?"
"There's a fine line,” he points out. “Will it become indirect bribery? Or is it considered contribution even though he is not yet a candidate by law? It would seem that he is in limbo."
Receiving campaign contributions at this point will also have an impact up to the end of the campaign.
When the time comes that candidates have to file their Statements of Election Contributions and Expenditures (SECEs), Lim muses, "Would they even declare the contributions that they received prior to the campaign period even though technically, they were not considered as candidates yet? Probably not."
The commissioner also refers to Section 11 of Republic Act No. 8436, as amended by Section 13 of Republic Act No. 9369, which states that "unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period." This clearly means that before the start of the campaign period, such election offenses cannot be committed, explains Lim.
But while candidates cannot be charged with an election offense prior to the start of the campaign period, candidates holding public office and accept donations for their campaign may be charged with bribery, Lim says.
This problematic definition of when a candidate is “officially” a candidate is among the revisions in election laws that Comelec plans to file with the 16th Congress, says the commissioner. "One of the campaign finance reforms that we plan on pushing is bringing back the definition of candidate at the time that he filed the Certificate of Candidacy in October,” he says. This way, Lim says, candidates would be held accountable for election-related offenses they committed even before the start of the campaign period.
Still, Lim is unsure that a revised definition of “candidate” would be enough to put a stop to premature campaigning. Candidates will always find ways of dodging campaign spending and airtime limits by starting to campaign earlier, he says, even before they file their CoC. Then again, says Lim, candidates might find doing such to be more difficult and expensive to sustain so far away from the elections.
For strategists like Tiquia, the three months immediately preceding the campaign period is what is crucial anyway for candidates who would like to do well in the first survey in February.
This is a strategy that is quite acceptable to Lim. He says, "You can't really prevent the whole evil of pre-campaigning. But at least you've covered the critical months." – PCIJ, June 2013