DISSENTING OPINION

KAPUNAN, J.:

Two seemingly conflicting rights or interests, both integral to our democratic system, are involved in this case.

On the one hand are the freedoms of speech and of the press, which, as often stated, are accorded a preferred status in our constitutional hierarchy,[1] essential as they are to preservation and vitality of our civil and political institutions.[2] The primacy, the high estate of these freedoms is a fundamental postulate of our constitutional system.[3]

On the other hand, the Constitution requires the State to “guarantee equal access to opportunities for public service,”[4] and mandates Congress to “provide a system for securing the secrecy and sanctity of the ballot.”[5] The State’s interest in holding “free, orderly, honest, peaceful and credible elections”[6] cannot be denied.

At the heart of the controversy is Section 5.4 of Republic Act No. 9006,[7] otherwise known as the “Fair Election Act,”[8] which states that:

Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election.

“Surveys,” as used above, pertain to “election surveys,” which in Section 5 thereof-

xxx refer to the measurement of opinions and perceptions of the voters as regards a candidate’s popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters’ preference for candidates or publicly discussed issues during the campaign period. xxx

The Fair Election Act was signed into law by the President on February 12, 2001. Pursuant to its authority under Section 13 thereof, the Commission on Elections (COMELEC) on March 1, 2001 promulgated through Resolution No. 3636 the Implementing Rules and Regulations of the Fair Election Act. Section 24 of the implementing rules is a verbatim reproduction of Section 5.4.

Petitioners contend that the subject provisions violate the freedoms of speech and of the press enshrined in Section 4, Article III of the Constitution thus:

No law shall be passed abridging the freedom of speech, of expression, or of the press xxx.

As publisher of a newspaper, Kamahalan maintains that its right to freedom of the press is unduly infringed by section 5.4. Insofar as publication (of surveys) is a component of the freedom of speech, the freedom of SWS is also purportedly severely restricted.

Although among our most cherished rights, the freedoms of speech and of the press are not absolute or unlimited. In certain instances, this Court has allowed the regulation of the exercise of these freedoms vis-a-vis election-related laws. In Osmena vs. Commission on Elections[9] and National Press Club vs. Commission on Elections,[10] the law prohibiting newspapers, radio broadcasting and television station from selling or giving free of charge print space or air time for campaign or other political purposes was declared valid. In Badoy vs. Commission of Elections,[11] the prohibition on the publication of paid political advertisements outside the COMELEC space was likewise upheld. In Gonzales vs. Commission on Elections,[12] where the prohibition on the early nomination of candidates and the limitation on the period of election campaign or partisan political activity under Republic Act No. 4880 was assailed for being violative of the freedoms of speech, of the free press, of assembly and of association, the Court declared the law not unconstitutional.

Courts have employed certain tests to determine the validity of restrictions on the rights to free speech and free press. The “dangerous tendency” rule provided that the State has the power to proscribe and punish speech which “creates a dangerous tendency which the State has a right to prevent.”[13] This formulation, however, had long been abandoned in the United States as well as in this jurisdiction.

The “clear and present danger” rule postulates that “the question in every case is whether the words are used in such circumstances and are of such nature as to create a clear an present danger that they will bring about the substantive evils that Congress has the right to prevent.”[14] This rule has been applied in our jurisdiction in a number of cases.[15]

Nevertheless, Associate Justice Fred Ruiz Castro, Later Chief Justice, in his separate opinion in Gonzales vs. Commission on Elections,[16] expressed the view that in determining the constitutionality of Republic Act No. 4880 assailed therein, another approach, the so-called “balancing-of-interests” test, was more appropriate. He observed:

However useful the “clear and present danger” formulation was in the appraisal of a specific type of situation, there is fairly extensive recognition that it is not a rule of universal applicability and validity, not an automatic mechanism that relives a court of the need for careful scrutiny of the features of a given situation and evaluation of the competing interests involved.[17]

Justice Castro cited American Communications Association v. Douds,[18] where the “balancing-of-interests” test was supplied. In said case, the United States Supreme Court stated that “in suggesting that the substantive evil must be serious and substantial, it was never the intention of [the U.S. Supreme Court] to lay down an absolutist test measured in terms of danger to the Nation.”[19] Chief Justice Vinzons, expounded:

When a particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the particular circumstances presented. xxx In essence, the problem is one of weighing the probable effects of the statute upon the free exercise of the right of speech and assembly against the congressional determination xxx We must, therefore, undertake the delicate and difficult task xxx to weigh the circumstances and to appraise the substantiality of the reasons advance in support of the regulation of the free enjoyment of the rights.[20]

The test is further explained thus:

The theory of balance of interests represents a wholly pragmatic approach to the problem of First Amendment freedom, indeed, to the whole problem of constitutional interpretation. It rests on the theory that it is the Court’s function in the case before it when it finds public interests served by legislation on the one hand, and First Amendment freedoms affected by it on the other, to balance the one against the other and to arrive at a judgment where the greater weight shall be place. If on balance it appears that public interest served by restrictive legislation is of such character that it outweighs the abridgment of freedom, then the court will find the legislation valid. In short, the balance-of-interests theory rests on the basis that constitutional freedoms are not absolute, not even those stated in the First Amendment, and that they may be abridged to some extent to serve appropriate and important public interests.[21]

In Zaldivar vs. Sandiganbayan,[22] this Court reiterated that the clear-and-present danger test was not a cure-all to freedom of speech controversies:

The “clear and present danger doctrine,” which test is invoked by respondent’s counsel is not a magic incantation which dissolves all problems and dispenses with analysis and judgment in the testing of the legitimacy of claims to free speech, and which compels a court to exonerate a defendant the moment the doctrine is invoked, absent proof of impending apocalypse. The “Clear and present danger” doctrine has been an accepted method for marking out the appropriate limits of freedom of speech and of assembly in certain contexts. It is not, however, the only test which has been recognized and applied by courts.[23]

Zaldivar cited the case of Lagunzad vs. Soto Vda. De Gonzales,[24] where the Court also referred to the shortcomings of the clear-and-present doctrine noted by Justice Castro in Gonzales. Justice Melencio-Herrera further wrote:

xxx Another criterion for permissible limitation on freedom of speech and of the press, which includes such vehicles of the mass media as radio, television and the movies, is the “balancing-of-interests test.” The principle “requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation.”[25] [Citations omitted.]

It is my considered opinion that given the apparent conflict between petitioners’ rights of speech and press – rights enshrined in the Constitution, and the inherent power of Congress to legislate on matters public interest and welfare, and in pursuance of the constitutional policy of ensuring of “free, orderly, honest, peaceful and credible elections,” it is ultimately this Court’s function and duty to undertake the delicate and difficult task of weighing and balancing the circumstances to determine whether public interest is served by the regulation of the free enjoyment of the rights.

I believe that Congress did not exceed constitutional limitations in enacting Section 5.4.

Indisputably, the State has a legitimate interest in fostering an informed electorate.[26] It has a compelling interest in protecting voters from confusion and undue influence[27] and, generally, in preserving the integrity of its election process.[28] In furtherance of these State interests, Congress is empowered to enact laws relative to the conduct of elections. It may not only regulate the time, manner and place of the holding of the elections but may likewise regulate the election campaigns and other activities relative thereto.[29]

In enacting the Fair Election Act, Congress declared that the State “shall, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of media of communication or information to guarantee or ensure equal opportunity for public service, including access to media time and space, and the equitable right to reply for public information campaigns and fora among candidates and assure free, orderly, honest, peaceful and credible elections.”[30] Further, said law aims to “ensure that bona fide candidates for any public office shall be free from any form of harassment and discrimination.”[31]

Towards these ends, Section 5.4 was incorporated specifically to prevent the evils brought about by election surveys published immediately before an election. The deliberations on the Senate Floor are revealing:

Adverting to the bill of Senator Tatad, Senator Defensor Santiago said that the country has no law regulating the conduct of surveys and the activities of survey stations and private groups particularly those relating to political opinions. She said that some Western countries prohibit political opinion polls or surveys for certain periods before elections to avoid last minute pressure on voters as politicians and political parties often cause the conduct and dissemination of surveys to advance their political interests.

She informed the body that the Internet reported on a worldwide survey on the publication of poll results prior to elections where 30 of the 78 countries surveyed apply legal restrictions on the publication of public opinion survey results comprising an embargo prior to general elections, which ranges from 24 hours to six weeks before an election. She said that among the reasons for the government restrictions cited by the Internet survey were protecting the integrity of the democratic process, the rights of privacy and national security considerations.

According to the report, she said, some countries in recent years have prolonged their embargo periods – for example, Italy, from seven to 28 days; Canada, from no ban to three days; and Chile, from one to seven days – while other countries have shortened or withdrawn their embargoes – for example, Croatia, from three days to 24 hours; Colombia, from 10 to seven days; and Argentina, from two weeks to no ban.

In this connection, Senator Defensor Santiago asked whether Senator Roco would consider an amendment providing for the criteria for the publication of opinion surveys as she expressed fear that an opinion survey firm might work diligently for some time in order to establish a reputation for credibility and then, at the ultimate hour, sell its services to the highest bidder.

Senator Roco recalled that earlier in the session, he had discussed with senator Defensor Santiago and some senators the idea of not just lifting the ban on election propaganda but also of giving fair protection to candidates, especially from the unfairness of reporting certain survey results during the campaign period. He added that the committee had been studying the rule in the United States where poll surveyors mention who authorized and paid for the survey, and what method was used, and furnish raw data to anybody who feels aggrieved by the poll results. He agreed that there must be a period when surveys should not be published because they influence elections through self-fulfilling predictions.

However, Senator Roco expressed concern that a full-blown debate on another issue might impede the approval of the bill, although he welcomed an amendment which would create a balance of fair reporting and fair opportunity for candidates.

Senator Defensor Santiago warned that the fate of the country’s leadership should not be left in the hands of survey firms which are not accountable to the people and possess no amount of sovereign power. Additionally, she expressed resentment that a public official like herself should be treated like a can of sardines because poll surveys have reduced political life to a mere matter of appearances.

Senator Roco commented that all professions which deal with communications are aware that the way a question is put can influence the answer; the more simplistic question can give rise to a host of interpretations. On the other hand, he said, it is a matter of public interest if there is an attempt to measure validity or acceptability of issues; still, full disclosure and transparency should apply to poll surveyors and to all who try to promote and protect public welfare.[32]

The original proposal was a 30-day restriction on the publication of surveys. Senator Flavier suggested the deletion of the restriction,[33] while Senator Osmeña was amenable to a shorter period of 3 days.[34] Senators Roco and Defensor-Santiago vigorously opposed the deletion. Senator Roco said that:

x x x the committee cannot accept the deletion of the prohibition as he observed that in the Philippines, the bandwagon effect is part of campaign planning. He recalled that in 1969, the influence of propaganda was so evident: every single pole or space was plastered with "Marcos-Lopez" posters and for the duration of the one-year campaign period, the newspapers kept on repeating that Marcos-Lopez was unbeatable that after a while, the people believed it. He explained that it is the publication and not the conduct of surveys that would be prohibited in this Act. However, he pointed out that the surveys would be useful to senatorial candidates, especially those who wish to land in the top six slots, because their names would be repeatedly mentioned on TV so that the voters might be influenced to vote for them. He said that candidates particularly those who do not have access to TV and radio have no money to influence publications should be given equal break during the 30-day period. He appealed the Members to support the committee's position.[35]

Senator Defensor-Santiago concurred with Senator Roco:

x x x She pointed out that at the start of the debate, the Body was of the consensus that the operating principles of the bill should be equality and impartiality. She opined that these principles would be violated if the Body would delete the prohibition. Moreover, she argued that a political neophyte who deserves exposure because of his honesty, competence and efficiency would probably not be in the winning circle until the crucial decisive few days before the election. She said that the publication of a survey at any point earlier than that would be detrimental to the candidate and to national interest. She expressed support for Senator Roco's appeal to maintain the present provision. She said that the freedom of expression in a constitutional dimension was not relevant to the discussion because a candidate who can afford it can ask any agency to conduct a survey; however, out of compelling national interest in the Philippine culture context, the State prohibits the publication of surveys within a certain period so as to avoid manipulating the minds of the electorate and to preserve the principle of equality and impartiality.[36]

Eventually, the position of Senators Roco and Defensor-Santiago prevailed[37] although, after the Bicameral Conference, the original 30-day limitation was reduced to 15 days with respect to surveys affecting national candidates.

Evidently, Congress found that the publication of surveys within the prohibited period inordinately works against candidates who are shown to be "losing.” The assailed provision thus seeks to avert the "bandwagon effect" supposedly caused by the publication of election surveys. The bandwagon effect results when a voter opts for a candidate or candidates whom the surveys reveal as the leading contender or contenders, the voter believing, rightly or wrongly, that the candidate or candidates whom the voter actually prefers would lose anyway, as indicated in the surveys. The bandwagon effect produces more votes for the "winning" candidate ordained as such by the surveys and less votes for the "losing" candidate. Surveys add to the prospects of the "winner" and lessen that of the "loser," who is thereby deprived of an equal opportunity to get elected. Hence, the surveys take the form of a self-fulfilling prophecy.

Ideally, a citizen ought to vote for a candidate based on the latter's personal qualifications and platform for governance. This is the ideal that the law aims to achieve; surveys published during the prescribed period before the elections have been deemed by Congress to frustrate this objective.

The prospect of misinformation magnifies the dangers of the bandwagon effect. There is nothing to prevent unscrupulous interests from procuring the services of an enterprise masquerading as a "credible" research institution to conduct "surveys" with predetermined results, and cause their publication. Worse, there is nothing to prevent the simple publication of entirely false results. The evil of the bandwagon effect caused by election surveys, whether absolutely accurate or utterly untrue, is further enhanced by the pervasiveness of media. Advances in technology have widened the electorate's access to both information and, regrettably, to misinformation.

It may be argued that propaganda portraying a candidate as possessing certain virtues or espousing certain causes, regardless of the truth of these claims, also influence the voter in making his or her choice. The distinction lies in that a survey lulls the voter into thinking that the election is over but the counting, and that his vote for a losing candidate would not matter in the end. While election propaganda expressly urge the voter to choose a candidate because of his qualifications and causes, the surveys, clothed with the mantle of statistics and couched in esoteric terminology, implicitly urge the voter to choose a candidate because of his popularity. This persuasive effect is unique to surveys; it is a feature absent in election propaganda.

This congressional concern regarding the bandwagon effect is supported by a study cited by the Solicitor General:

It is noteworthy that it is easier to translate voting intentions into potential seats in a two-party system than in a multi-party arrangement. The accuracy of election polls is also determined by actual voter turnout; pre-election surveys can sometimes be out of date by the time they are reported. x x x. Last, polls can present an opportunity for deliberate misrepresentation or connivance by those who publish survey results; many examples of this practice by political parties have been cited. Advocacy groups seeking to influence the public agenda can also commission polls for public release and may draft questions to support their case or point of view. In short, public opinion surveys are blunt instruments of prediction and are susceptible to many forms of error.

Opponents of political polling point to notable failures like the predicted victories of Landon over Roosevelt in 1936, of Dewey over Truman in 1948, and of Wilson over Heath in Britain in 1970. Most pollsters considered the outcome of the 1980 presidential election in the United States too close to call, yet Ronald Reagan won by a landslide. The 1992 surprise victory of the Conservatives over Labour in Britain is another similar example. x x x

THE IMPACT OF POLLING ON THE ELECTORAL PROCESS

A. Direct Effects

Because polls are generally perceived to be accurate and scientific, the debate on polling centres largely whether it undermines the democratic process by influencing electoral behaviour and election results. Some political strategists and observers argue that the publication of polls gives an unfair advantage to parties or candidates whose fortunes are seen to be improving. The so-called "bandwagon" effect assumes that knowledge of a popular "tide" will likely change voting intentions in favour of the frontrunner, that many electors feel more comfortable supporting a popular choice or that people accept the perceived collective wisdom of others as being enough reason for supporting a candidate.

The bandwagon phenomenon, however, is dismissed by those who argue that voters do not pay much attention to poll results in the first place, that not everyone believes them, and that it is not important for everyone to be on the winning side. Furthermore, while some voters may want to be on the victorious side, at least a few will rally to support the expected loser out of sympathy - the so-called "underdog" effect - which would cancel out or annul any shifts in preference.

Although academics in the United States have long been divided over the impact of published polls on the outcome of elections, recent research supports the proposition that their publication can influence a close election, with the most impact occurring late in a campaign. Recent studies in Canada also support the notion that polls published during political campaigns can create the "politics of expectations," a situation that stimulates the bandwagon effect and promotes "strategic voting," in which voting is influenced by the chances of winning. For example, citizens may cast ballots for their second-choice candidate who appears to have a better chance than the first choice of defeating a disliked candidate or party. Such behaviour is said to be increasing in Canada as close three-party races become more common. It is therefore argued that voters making such strategic choices have every right to expect that the results of opinion surveys are scientifically valid.[38]

The same study also pointed out other "indirect effects" of surveys published during the election period, that it detracts from the "real" issues of the election and affects a candidate's momentum:

B. Indirect Effects

The indirect effects of polls during elections may be as important as their possible direct influence. Because of the multiplicity of published surveys and the attention they receive from the media, some charge that polls detract from discussion of the "real" issues. Indeed, many describe news coverage of Canadian elections as being analogous to that of a sporting event or "horse-race," with serious analysis of the issues or investigation into areas of voter concern being largely ignored. The media's emphasis on who is winning and who is losing (as well as on the campaign "style" of leaders and their parties) may also result in so-called "leader-fixation." As one scholar explains:

Polls conducted throughout the campaign . . . focus on leadership in an attempt to predict the outcome of the election and to explain it in terms of leader appeal. The polls are presented as measures to gauge how the leaders' campaigns are fairing. In this sense the media coverage misrepresents the political system, narrows the focus of public debate, and denigrates political leaders and institutions.[39]

The deliberations during the Bicameral Conference also intimate another purpose in passing the challenged provisions, that is, to prevent the nefarious election scheme known as "dagdag-bawas." Dagdag-bawas, a phenomenon peculiar to Philippine elections, takes place when votes cast in favor of one candidate are deducted then credited to another. Senator Roco also observed that last-minute surveys generate "junking" of candidates at the tail end of the surveys by their very own party-mates or supporters.

CHAIRMAN ROCO. I do not want to say it that way. I only said, that if you will target people to campaign against, you will target people who are outside 1 to 6 because it is a waste of time to try to drag No. 6 down to 13. Legitimate campaign.

Mapababa mo man ang No.1, umabot ng no. 6, he or she still occupies one post. Hindi nawawala. Ang tatargetin mo, 9, 10, 11, parang junking doon sa sample ballots mawawala yong mga mabababa because yon ang puedeng mawala. Yong 1 to 6 or 1 to 8, ang hirap-hirap nang tanggalin.

So, in your sample ballots you don't care. Sa sample ballots, kung sa surveys 10, 11, 12, eh, lalo kung 12, naku, candidate 'yon for disappearance. Yon ang mga napapalitan ang mga favorite. Hindi ba? Sa Bicol tanggal yon. Ang lalabas doon Bicolano lang. Di ba? Kung mahina-hina ang No.12, tanggal na yon. Mahina-hina ang No.11, tanggal na yon sa mga regions. Every region has its own favorite. Papasok na sa sample ballots. Walang dayaan yon. But you will not try to eliminate somebody who is impossible to eliminate. What is your interest? Loren is No.1, so, she becomes No.3. Who cares! Maybe, she's a bit unhappy. But she is still senator, you see![40]

Senator Legarda-Leviste also expressed that "it is the fear of some of the other senators that because they are perceived to be the last three or four slot occupants and they could be the target of a 'dagdag-bawas.'”[41]

That the law, in Sections 5.2 and 5.3, prescribes certain requirements in the publication of surveys and allows the inspection thereof do not suffice to thwart the dangers sought to be avoided by Section 5.4. Election surveys are more in demand as the elections draw closer. The reason is obvious. The public rating of the candidates shifts from time to time over the months. But a survey taken very close to the election might be taken as indicative of a firm and final tally of the results, giving more motive to fly-by-night pollsters or survey groups controlled by vested interests to manipulate the survey results. It is conceded that Sections 5.2 and 5.3 affords interested parties an opportunity to examine and analyze the published surveys and to refute or confirm their accuracy. However, these regulations lose their efficacy during the period contemplated by Section 5.4 because said interested parties would no longer have adequate time to test the veracity of said surveys, especially if they are published, say, a day before the elections.[42]

Viewed in the light of the legitimate and significant objectives of Section 5.4, it may be seen that its limiting impact on the rights of free speech and of the press is not unduly repressive or unreasonable. Indeed, it is a mere restriction, not an absolute prohibition, on the publication of election surveys. It is limited in duration; it applies only during the period when the voters are presumably contemplating whom they should elect and when they are most susceptible to such unwarranted persuasion. These surveys may be published thereafter.

Our electoral system and processes are not necessarily of the same level of political maturity that countries like the United States and other more developed countries have attained. It is noteworthy that numerous other countries recognized the deleterious effects on the electoral process by the publication of surveys immediately before the elections. Accordingly, they impose similar restrictions, although varying as to the periods: Turkey and Luxembourg, 30 days; South Africa, 42 days; Italy, 28 days; Indonesia, 21 days; Peru, Venezuela and Uruguay, 15 days; Poland, 12 days; France, Hungary, Portugal, Switzerland, Chile, Columbia and Mexico, 7 days; Spain, 5 days; Russia, Australia and Bolivia, 2 days; Fiji, New Zealand, Armenia, Belarus, Bulgaria, Croatia, Khazakstan and Lithuania, 1 day.[43]

The reasons advanced in support of Section 5.4, far from being matters of mere legislative preferences or beliefs regarding the evils sought to be remedied, sufficiently justify the restriction on such vital rights as the freedoms of speech and of the press. It bears stressing that it is Congress, not this Court, which his primarily charged with the determination of the need for regulation of such activities. Thus, insofar as the need for regulation of the publication of election surveys within the periods laid down in Section 5.4 is concerned, this Court is in no position to substitute its judgment as to the necessity or desirability of the same for that of Congress.[44]

IN VIEW OF THE FOREGOING, I vote to DISMISS the petition.

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[1] Blo Umpar Adiong vs. Commission on Elections, 207 SCRA 712 (1992); Mutuc vs. Commision on Elections, 36 SCRA 228 (1970).

[2] Philippine Blooming Mills Employees Organization vs. Philippine Blooming Mills, 51 SCRA 189 (1973).

[3] Gonzales vs. Commission of Elections, 27 SCRA 835 (1969).

[4] Article II, Section 26.

[5] Article V, Section 2.

[6] Article IX-C, Section 4 reads:

Sec. 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for 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 forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.

[7] An Act to enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections Through Fair Election Practices.

[8] R.A. No. 9006, Section 1.

[9] 288 SCRA 447 (1998).

[10] 207 SCRA 1 (1992).

[11] 35 SCRA 285 (1970).

[12] Supra.

[13] Gitlow v. New York, 268 U.S. 652, 69 L Ed 1138.

[14] Schenck v. Untied states, 249 U.S. 47, 63 L Ed 470, 473-474.

[15] ABS-CBN Broadcasting Corp. vs. Commission on Elections, 323 SCRA 811 (2000); Blo Umpar adiong vs. Commission on Elections, supra; Imbong vs. Ferrer, 35 SCRA 28 (1970).

[16] Supra.

[17] Id., at 898.

[18] 339 U.S. 383, 94 L Ed 925.

[19] Id., at 944.

[20] Id., at 943.

[21] KAUPER, CIVIL LIBERTIES AND THE CONSTITUTION, p. 113 cited in Separate Opinion, Castro, J., in Gonzales vs. Commission on Elections, supra.

[22] 170 SCRA 1 (1989).

[23] Id., at 8.

[24] 92 SCRA 476 (1979).

[25] Id., at 488.

[26] Eu v. San Francisco Democratic Com., 489 US 214, 103 L Ed 2d 271, 109 S Ct. 1013.

[27] Burson v. Freeman, 119 L Ed 2d 5.

[28] Id.; ABS-CBN Broadcasting Corp vs. Commission on Elections, 323 SCRA 811 (2000).

[29] Gonzales vs. Commission on Elections, 27 SCRA 835 (1969).

[30] Republic Act No. 9006, Section 2.

[31] Ibid.

[32] Senate Journal, Session No. 13, August 21, 2000, pp. 189-190.

[33] Senate Journal, Session No. 22, October 2, 2000, p. 266.

[34] Ibid.

[35] Id., at 267.

[36] Id., at 267-268.

[37] Id., at 268.

[38] Comment of the Solicitor General, pp. 8-11, citing Public Polling in Canada by Claude Emery, at http://www.parl.gc.ca/information/library/PRBpubs.

[39] Id.

[40] Transcript of Committee Meetings, Bicameral Conference Committee on the Disagreeing Provisions of Senate Bill No. 1742 and House Bill No. 9000, November 23, 2000, p. 32.

[41] Id., at 36.

[42] Alvin Capino, in his column “counterpoint” (today, April 21, 2001) had this to say:

One more reason why survey results for senators should be taken with a grain of salt is the explanation of Felipe Miranda of Pulse Asia about the adjustment pollsters make because of the so-called command votes.

Command votes are the block votes of religious groups like Iglesia ni Cristo and El Shaddai. Members of these groups vote according to the instructions of their leaders.

According to those who attended a recent briefing of Miranda, the head of Pulse Asia places minor weight on the so-called command votes. Pulse Asia places the command votes at a low 1.5 million votes. The number, the say, would have no major impact on the election results.

The problem of pollsters is that members of the Iglesia ni Cristo with a voting strength of at least three million do not participate in surveys. The fact that INC members are not covered by surveys could distort survey results.

A senatorial candidate, for example, who thinks that he safe in, say, his ranking of 8^th or 9^th might suddenly find himself outside the Magic 13 simply because the senatorial candidates below him were supported by the INC and he was not.

[43] Senate Journal , Session No. 22, October 2, 2000, p. 267.

[44] See American Communications Association vs. Douds, supra.