Sans TRO, 9 Senate bets, Buhay breached ads cap

By Che de los Reyes, Philippine Center for Investigative Journalism

Posted at Jun 13 2013 10:30 PM | Updated as of Jun 14 2013 11:25 PM

MANILA, Philippines - Nine senatorial candidates and one party-list group in the recently concluded elections would have breached the airtime limit for political ads on TV had it not been for a crucial order from the Supreme Court regarding a new rule being imposed by the Commission on Elections (Comelec).

One of those nine candidates would have also surpassed the campaign-spending limit.

Seven of the nine actually won in the May 13, 2013 midterm elections. Meanwhile, Buhay, the party-list group that eventually garnered the most number of votes among party-list groups, is poised to occupy three seats in the House of Representatives.

But that is now murky water under the bridge. Last April 16, less than a month before the elections, the Supreme Court issued a Temporary Restraining Order (TRO) on the "aggregate time limit" rule imposed by Comelec. The TRO effectively reverted the counting of advertising minutes to the "per station" basis, just as it was in the May 2010 presidential polls.

More than the issue of counting airtime limits, however, the Supreme Court TRO made for a seemingly contradictory situation with the law on campaign expenditure limits. As well, the TRO has made the Comelec's task of enforcing campaigning and campaign finance rules -- and consequently holding violators to account – less straightforward and all the more difficult to manage. As a result, campaign spending in the 2013 polls may turn out not to be any different from the campaign-ad spending spree of 2010.

In the 2010 polls, the total indicative ad spending of national candidates during the three-month campaign period was estimated at P4.3 billion, net of Comelec-imposed discounts and agency commissions, based on Nielsen data. Of that amount, P1.1 billion came from the campaign chests of the top five presidential candidates, while P1.5 billion were spent by senatorial bets. Vague provisions and loopholes in election laws, however, have allowed a number of said candidates to book the ads in the name of their allied senatorial candidates and party-list groups, thereby effectively dodging the lawful airtime and campaign-spending limits.


Total tab: P2.2B

In the recently concluded elections, Nielsen data show a similar political ad spending pattern on TV: P1.18 billion indicative real ad spending by the 12 winning candidates; P466.58 million by five other candidates who did not win; and an additional P154.32 million combined indicative spending on ads that featured the Team PNoy and UNA slates.

Altogether, these candidates for senator and the two major political coalitions spent an indicative total of P1.8 billion on TV ads during the 90-day official campaign period.

This is on top of an indicative total of P424.87 million worth of TV ads placed by the two coalitions and 14 candidates for senator that aired before the official campaign period from Nov. 11, 2012 to Feb. 11, 2013.

Combined, the two sums show that the composite spending on TV ads alone of the two coalitions and their senatorial candidates amounted to P2.23 billion in six months (November 11, 2012 to May 11, 2013), or an average of P371.11 million a month, or P12.37 million a day.

In fact, even with the Supreme Court TRO issued in the last month of the campaign, the combined indicative real ad spending by national candidates on TV alone is already quite staggering. And as it turned out, five senatorial candidates who lost in the elections had even bought more ad spots than some of the winning candidates.


More than mouthwash

For sure, the sheer magnitude of ad buys of candidates during the election period jacked up the aggregate spending of the "Government Agencies & Public Utilities" advertising category of Nielsen, under which political advertisements are grouped. Per Nielsen's First Quarter report on the top advertising categories, the "Government Agencies & Public Utilities" had a 272-percent increase from the first quarter of last year. For 2013, this category landed on the fourth spot – besting even the "Communication/Telecommunication," "Dentifrices, Mouthwash & Toothbrush," and "Skincare" categories.

Not surprisingly, Comelec Ad Hoc Campaign Finance Steering Committee Chair Commissioner Christian Robert Lim admits that auditing the campaign expenses by the candidates and parties is a huge task for him and the ad hoc campaign finance unit (CFU) that the Commission has created especially for this purpose.

It’s a good thing there is Nielsen, a private firm that monitors ad spots on 11 free-to-air TV channels and 16 cable channels, and computes the corresponding ad values based on the networks' published rate cards.

To arrive at the indicative real ad cost, PCIJ applied a 40-percent across the board discount to the rate-card pegged ad values provided by Nielsen. This would approximate the Comelec-imposed 30-percent discount on political ads on TV, and the rate-card increase from the previous year.

Since the political ad ban was lifted in 2001 when the Fair Election Act (Republic Act No. 9006) was passed, political advertising in media, particularly on TV, has come to constitute the bulk of candidates' campaign spending.


70 percent 'air war'

Campaign strategists estimate the proportion of political ad spending and media PR by candidates – the so called "air war" – to make up as much as 70 percent of a candidate's campaign kitty. Only 30 percent goes to "ground war," or sorties and other forms of campaigning on the ground.

Campaign strategists have been emphasizing the important role that political ads play in Philippine elections. Political management expert Malou Tiquia explains that political ads, especially on TV, have a dual function that could very well make or break the candidacy of a political wannabe.

The first and the more obvious one is that ads serve to create name recall and voter awareness of a candidate. The second, and perhaps more important function, is that ads serve to create a temporary bump in a candidate's survey ranking.

Tiquia says that in a country where elections and campaign-fund raising are largely survey- driven, a candidate's ability to attract campaign donors is a function of his or her performance in surveys. The higher a candidate's survey ratings -- however artificial a rise in ratings may be -- the higher the amount of campaign donations that will pour in.

Conversely, if a candidate is lagging behind in surveys, the less campaign funds will come in, and the less likely he or she would be able to buy those crucial ad spots in the campaign's homestretch.


No level playing field

This is the vicious cycle that many candidates running in Philippine elections have to contend with. It is thus no wonder that there are candidates who seem to have no qualms about spending fantastic amounts of cash for political ads amid the skyrocketing costs of placing mere seconds of ads on TV, especially on the country's top networks.

This odd situation shaped the 2010 elections to be the costliest yet in Philippine history, and the polls as an exclusive playground of the moneyed and the well-entrenched. It also carved a landscape that hardly bore any resemblance to the level playing field that election laws had originally aspired for.

Candidates – particularly those aspiring for national positions -- who do not have cash to burn may then very well bid goodbye to their political ambitions. But in an effort to level the playing field and prevent another advertising spending spree in the May 13, 2013 midterm elections, Comelec targeted to curb political advertising by enforcing stricter airtime limits: 120-minute aggregate airtime cap for TV and 180 minutes aggregate for radio for national candidates and registered political parties.

This provision was made clear in Comelec Resolution No. 9615, or the "Rules and Regulations Implementing Republic Act No. 9006, Otherwise Known as the 'Fair Election Act,' in Connection to the 13 May 2013 National and Local Elections, and Subsequent Elections" that Comelec issued in January 2013.

The "aggregate time limit" rule, however, was questioned by a number of media networks, the Kapisanan ng mga Brodkaster ng Pilipinas (KBP), and Nacionalista Party senatorial bet Alan Peter Cayetano. Citing Comelec's "aggregate time limit" rule to be "restrictive," "unconstitutional," and "limiting the people's right to information," the petitioners filed four separate motions to the Supreme Court asking it to issue a TRO on the Comelec ruling.

'Aggregate' what?

Last April 16, the Supreme Court voted 9-6 in favor of issuing a TRO on the "aggregate time" provision of Comelec Resolution No. 9615. The TRO also expressly stated that the "120 minutes/180 minutes airtime limit, per station, for candidates/registered political parties for a National Elective Position, and the 60 minutes/90 minutes airtime limit, per station, for candidates/registered political parties for a Local Elective Position implemented in the 2010 elections" shall be implemented pending resolution of the case.

Commissioner Lim considers the TRO on Comelec's "aggregate time limit" rule to be the strongest blow dealt by the Supreme Court on the Commission thus far. The High Court had issued other TROs on the Commission En Banc's several other rulings. But it was this one in particular that drove Comelec Chairman Sixto S. Brillantes Jr. to the brink of quitting his post.

The way Lim sees it, there was no "grey area" to speak of in the case of the "aggregate time limit" rule.

He explains that the Commission's decision to have the "aggregate time limit" rule was "driven by campaign finance." It is perhaps small consolation for Lim and company that the Supreme Court TRO did not cover the campaign expenditure limits of candidates and parties, as the petitioners against the "aggregate time limit" rule did not raise any question on these provisions.

License to breach

Yet while Lim says that "the expenditure limit is still applicable," he says it is "disheartening that you are trying to encourage them to spend within limits, (but) there's another regulation that allows you to breach it."

Lim is referring to the likelihood that a candidate who uses up the 120-minute limit per station allowed by the Supreme Court ruling would also overspend. A 30-second ad on prime time placed on ABS-CBN 2 would cost P824,374, based on the network’s published rate card for 2013. The same 30-second ad placement on prime time would cost P695,500 on GMA 7 and 444,000 on TV5 per these networks’ published 2013 rate cards.

If a candidate for senator placed all his 120 advertising minutes on primetime in these three TV networks alone, he or she would easily breach the spending limit for senatorial candidates.

The indicative real ad cost of placing 120-minutes of political ads on prime time in the top three TV networks would cost a candidate as much as P282,797,856 – and that is with a 40 percent discount on the published rate cards already factored in.

That figure easily surpasses the maximum allowable campaign spending of P158,237,583 for senatorial candidates nominated by a political party, and P263,729,305 for independent candidates.

(Per Republic Act No. 7166, a senatorial candidate nominated by a political party can spend up to a maximum of P3 per registered voter, and an independent candidate, P5 per registered voter. Per Comelec figures, a total of 52,745,861 voters – including overseas absentee voters -- registered for the May 13, 2013 elections.)

Ad costs vary

Being among the top ad placers, though, does not automatically mean a candidate is also among the top ad spenders. Ad costs vary widely per TV network. If the published rate cards of the top three TV stations run to half-a-million pesos per 30-second ad, other free-to-air and cable channels charge much, much less. A 30-second ad on primetime on other free-to-air channels for instance, would only cost anywhere from P50,000 to P160,000. The ad values are even smaller for cable channels: P20,000 to P78,000 per 30 seconds.

This is why winning senatorial bet Antonio Trillanes IV wound up with an indicative real ad spend that was much smaller than that of party mate Cynthia Villar, even though he was right behind her in terms of logged ad minutes.

An NP candidate who ran under the Team PNoy coalition, Trillanes logged a total of 195.25 minutes for 421 TV ad spots, per Nielsen data. But only a small proportion of those ads -- 23 minutes for 60 ad spots -- were placed on ABS-CBN 2 and GMA 7. A huge chunk (361 ad spots or 86 percent) of those ads were placed on cable channels and other free-to-air channels (Table 3). As a result, Trillanes’s indicative TV ad spending turned out to be second only to the lowest among the 12 winning senatorial bets by the time the campaign period ended last May 11.

Cynthia on precipice

But Trillanes's case appears to be the exception rather than rule. In most other cases, candidates preferred to place most of their ad spots on the top two and costliest TV networks.

That is certainly the case with top ad buyer Cynthia Villar, an NP candidate who, like Trillanes, ran under Team PNoy. Just like husband Manuel "Manny" Villar when he ran for president in 2010, Cynthia Villar turned out to be the top ad spender in this year’s polls.

She logged a total of 207.25 minutes on TV, equivalent to 477 ad spots that are altogether worth P187 million. Unlike Trillanes, however, Villar chose to place all of her ads solely on the top two and costliest networks: 263 ad spots on ABS-CBN 2 and 214 on GMA 7.

Even with the Supreme Court TRO, Villar nearly breached the 120-minute airtime cap per station. She was just 4.25 minutes shy of going over the 120-minute cap for political ads on ABS-CBN 2. Another Team PNoy candidate, Grace Poe, was only 14.25 minutes from breaching the airtime cap on the same network. (Those ad placements certainly helped in the case of Poe, who would later claim the number one spot among winning senators in the polls.)

But candidates who are nominated by a political party, such as the likes of Cynthia Villar, enjoy an advantage over independent candidates such as Poe. According to the Fair Election Act, a political party can also place 120 minutes of political advertisements for and in behalf of its candidates, aside from having a P5 spending limit per registered voter, which the party can spend for any or all of the candidates it has nominated.

For the 2013 polls, NP fielded three senatorial candidates who all ran under Team PNoy: Villar, Trillanes, and Alan Peter Cayetano. Technically, each of the three NP senatorial candidates had an extra 40 ad minutes on TV that they could use. That is, if NP decided to use up its allowable airtime and campaign expenditure solely to promote the candidacy of its senatorial bets.


Extras from parties

Meantime, political parties may also spend up to P263,729,305, to be divided among the candidates on its slate, according to Republic Act No. 7166.

Such extra allowable airtime and campaign expenditure accorded political parties could turn out to be more advantageous if a candidate is the lone bet of the political party, as in the case of Team PNoy candidate Juan Edgardo 'Sonny' Angara, who officially ran under the Laban ng Demokratikong Pilipino (LDP). In fact, on March 26, halfway into the campaign, the LDP sent a letter to the Comelec En Banc seeking to clarify this very issue. Comelec, in its reply to LDP, said, "(T)he airtime minutes that LDP will use to promote the advocacies of its candidates will not be counted against the individual minutes of the said candidate as long as LDP indicates in its television and radio advertisements that the same was printed and aired for the benefit of LDP" (emphasis supplied).

As for the opposition coalition United Nationalist Alliance (UNA), Lim says that because it officially registered with Comelec, the poll body is treating it just like the other political parties. In other words, UNA was allotted its own political ad airtime and campaign spending limits.

But here’s where the attribution of airtime and campaign spending becomes tricky: aside from its eight candidates who officially listed UNA as their political party in their Certificates of Nomination and Acceptance (CONA), the coalition also carries on its slate a candidate from another political party: Juan ‘Jack’ Ponce Enrile Jr. of the Nationalist People's Coalition (NPC).

According to Lim though, only those candidates officially registered as UNA candidates stand to benefit from the extra airtime limits and campaign spending allotted for UNA. The coalition's ads paid for and by UNA featuring Enrile even for just a few seconds, would be considered as the coalition's donation to Enrile. As such, Comelec will compute the ad seconds in which Enrile appeared and the equivalent ad costs against Enrile's airtime and spending limits.

Only 3 LPs in LP

All these may already be making the heads of even Comelec's best auditors spin. But then they still have to deal with the more complex case of Team PNoy.

Because the administration coalition is not officially enrolled with the Comelec, only the registered political parties under its slate are allowed to place ads and spend for the campaign of its candidates. Team PNoy therefore, is not synonymous to the Liberal Party to which the coalition's principal endorser President Benigno Simeon C. Aquino III belongs – although in many of Team PNoy's ads, LP appeared in the "paid for" and "paid by" end tag.

Per Comelec's list though, only three of the coalition's 12 senatorial bets are officially registered as LP candidates: Paolo Benigno 'Bam' Aquino IV, Ana Consuelo 'Jamby' Madrigal, and Ramon 'Jun' Magsaysay Jr. The ad minutes and ad costs of Team PNoy's ads booked for and paid by LP will thus be counted against the airtime and spending limits of each of the nine other candidates on its slate.

Tiquia, however, believes that the ad spending for the last elections would have been much higher had not candidates taken a wait-and-see stance.

Data from Nielsen, for one, show that four candidates did not place any ads at all in the first weeks of the official campaign period. Oddly, Villar, who was one of the top ad spenders pre-campaign, did not place a single ad on TV in the first two weeks of the campaign period.

This might be because candidates were not sure whether the Supreme Court would issue a TRO on the aggregate airtime cap, says Tiquia. She thinks that many of them opted to be "very conservative with their ad placements."

Lim, for his part, says that the "aggregate time limit" rule "forced" candidates to "maximize the minutes allowed."

Prudent ad buyers

"It made candidates think and strategize how to bring out their ads," he says, noting that the ads toward the crucial last week of the campaign had already been booked way ahead by some candidates.

Lim also says that the rules issued by Comelec made candidates more careful with their political ad spending. For Lim, the LDP's letter seeking clarification from Comelec is indicative of this behavior. He remarks, “They have become more cautious. Previously, they didn’t even mention (campaign spending), but now they're concerned how it's going to happen.”

 "At least," Lim adds, "it went to (their) consciousness."

That the top two ad placers – Villar and Trillanes – did not place any ads at all during the initial weeks of the campaign period might also be an indication of a more prudent campaign spending behavior. Trillanes had no TV ads at all until midway into the campaign in April, while Villar had no TV ads in the first two weeks of the campaign.

Unlike Trillanes though, Villar had invested in TV ads long before the official campaign period had even begun last Feb. 12, 2013. In the three months preceding the official campaign period alone, Villar had placed 121 ads running for a total of 60.5 minutes from Nov. 11, 2012 to Feb. 11, 2013.

Pre-campaign top ad placer Nancy Binay, the political newbie daughter of Vice President Jejomar ‘Jojo’ Binay, was decidedly more prudent with her ad buys into the official campaign period, coming in at only 7th in terms of ad minutes logged. But because Binay, like Villar, chose to book all of her ads solely on the top two networks – 221 ad spots on GMA 7 and 154 on ABS-CBN 2 – Binay emerged fifth in terms of indicative ad spending.

Donors, not masses

Here’s the thing: Tiquia says that so long as the political advertising rates and packages offered by the TV networks remain high, only those who have lots of money to burn will be able to take full advantage of mass media campaigning.

Less moneyed candidates who are only able to buy ads "tingi-tingi" or piecemeal, will continue to be bumped off the prime commercial spots by candidates who have already booked and paid for ads in bulk.

"If this goes on,” says Tiquia, “we will find it more difficult to elect senators who will promote the interest of the masses. Most of them will promote the interest of those who can donate.”

She says a better option is for TV networks – being franchise holders – to lower the cost of ad spots for political ads, as these may be considered to be “for the public welfare.”

For now, Lim and the CFU have begun the campaign finance audit work following the June 13 deadline for the submission of the Statements of Election Contributions and Expenditures (SECEs). At the same time, they are awaiting the Supreme Court's final ruling on the TRO on the "aggregate time limit" rule. According to Lim, Comelec had already submitted its comments on the consolidated petitions filed before the Supreme Court.

The commissioner says the decision that the High Court will issue on the matter of airtime limits will become the basis for the campaign rules in the 2016 presidential elections.

"I have come to accept that (the) 2013 (elections) is experimental," says Lim. "You set a lot of policies that will be questioned by the High Court."

But he adds, "We hope they will rule based on the merits of the case, rather than dismiss it for being moot now that the elections are over." – PCIJ, June 2013