Law-breaking candidates

Advertisements are now placed not only on traditional broadcast channels but on online platforms like YouTube. Campaign paraphernalia are now being purchased or freely distributed.

These activities are done no longer with the fear of being accused of premature campaigning. The Supreme Court has effectively expunged premature campaigning from possible election offenses when it ruled in Rosalinda A. Penera v. Commission on Elections and Edgar T. Andanar that “a candidate is only liable for election offenses only upon the start of the election period.”

The court, in this landmark decision penned by retired Senior Associate Justice Antonio Carpio, based its ruling on Section 15 of Republic Act 8436, as amended by Section 13 of RA 9369, which provides that “[a]ny person who files his certificate of candidacy within [the period for filing] shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy.”

Thus, all these activities would not be considered as part of campaigning, while all funds used to finance them would not be considered as election-related spending. Consequently, these are not counted in the accounting to determine whether a candidate is overspending beyond the limits allowed by election laws.

While we end up having a ridiculous scenario that enables candidates to get away with excessive spending, the hands of the court are tied by the law that was passed. The window for those running for office and have filed their certificates of candidacy (CoC) to go on a spending spree on pre-campaign period campaigning without accountability vis-à-vis election laws, and cannot be held liable for committing election offenses, has even widened with election automation, where the period between the filing of the CoC and the start of the campaign period is longer. Certainly, the solution here is to legislate a remedy, but it is not at all certain that Congress will want to fix the problem as it is something that is actually beneficial to them.

There is one caveat here, however, particularly for these incumbent legislators and even those holding executive positions who are running as reelectionists or for other positions. While they may not be treated as candidates, and cannot be held liable for election offenses, they are technically public servants and would be subject to applicable laws relating to their conduct while in public office. This is particularly significant in relation to how they raise money to fund their pre-campaign period campaigning activities.

At the outset, using public funds to finance campaign-related activities is technically prohibited by law and would constitute corruption. However, it is here that incumbents get away with spending public funds in aid of their election by listing these as legitimate expenses that can easily slip through unnoticed because they could appear in projects which their offices would normally be engaged in anyway, from infrastructure to scholarships to relief operations.

There are two other main sources of funds that can be used in aid of elections. One can use one’s own money or depend on donations and contributions. Using private money is not problematic if you have lots of it, except that this will be checked by the requirement that people in government have to divest some of their investments, and are allowed only a limited practice of their profession. And any private wealth would have to be declared in the Statement of Assets, Liabilities and Net Worth (SALN) for which failure to declare is considered an actionable offense. Taxes will also have to be paid on private wealth.

Public officials running for public office can rely on donations during the precampaign period. Since they are not yet technically candidates, however, there are applicable rules governing public servants. RA 6713. or the “Code of Conduct and Ethical Standards for Public Officials and Employees,” regulates the act of receiving gifts and donations. Section 7d governing solicitation or acceptance of gifts states that, “Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office.”

Clearly, a public official who is not yet technically a candidate and who receives donations from volunteers and private parties may not be regulated under election laws but can be prosecuted under RA 6713. A public official receiving donations to finance his or her precampaign period campaigning is technically violating Section 7d because something of value is received in the course of their official duties. They cannot make a plea that their campaign activities are not in the course of their duties, simply because they are not yet candidates according to the Penera doctrine. Hence, everything they do is in the ambit of their being public servants performing their official duties.

They also may not make a plea on technicality when the donors are not connected with any operation which they regulated, or are engaged in any transaction which may be affected by the functions of their office. This is because of the word “or” that renders this element as merely an alternative to the more general acts of government officials in the course of their official duties.

There is a need to raise this issue of campaign donations, even if it comes from volunteers, as a possible violation of RA 6713. We cannot countenance incumbent public officials who take advantage of the Penera ruling to violate the rules governing gifts and donations. The ruling cannot be a shelter for public officials who are not yet official candidates but are already spending huge amounts of money sourced from donations coming from private parties.