Organizational Campaign BanCase

(11-2 KCCR 614, 98Hun-Ma141, November 25, 1999)

A.Background of the Case

In this case, the Court upheld Article 87 of the Act on the Elec-tion of Public Officials and the Prevention of Election Malpracticesthat banned campaign activities to all organizations except laborunions.

The Constitutional Court had invalidated Article 36(1) of thePresidential Election Act that banned campaign activities to all peopleexcept 'political parties, candidates, campaign managers, campaignliaison officers, campaign staff, and campaign speakers.'1)The leg-islature consolidated various campaign-related statutes into the Acton the Election of Public Officials and the Prevention of ElectionMalpractices on march 16, 1994, and changed the basis of regulationfrom a comprehensive ban basis to individual bans. Now, whatevercampaign activity not expressly prohibited was allowed. Therefore,Article 58(2) of the above Act stated "everyone can freely engagein campaign activities." However, Article 87 of the Act still compre-hensively banned organizational campaign activities by stating, "all or-ganizations, regardless of the names such as associations and foun-dations, cannot support or oppose a particular party or candidate orsolicit such support or opposition." The Constitutional Court alreadyupheld Article 87 twice.2)However, the legislature added a provisoon April 30, 1998 that exceptionally allowed campaign activities oflabor unions in support of a particular party or candidate.

The complainant, a civic social organization, was founded in 1989 for the purpose of conducting a peaceful citizens' movement for eco- nomic justice and thereby building a foundation for a democratic wel- fare society. The complainant filed a constitutional complaint againstthe above ban on organizational campaign activities for making an ex-ception for labor unions and thereby violating the principle of equal campaign opportunity, equal election, and equality.

B.Summary of the Decision

The Constitutional Court upheld the Article 87 ban on organiza- tional campaign activities in the following majority opinion of seven justices:

The Court adopted the reasoning of its own decision3)upholdingthe comprehensive ban on organizational campaign activities as follows:

If an organization that is not a party recommends a candidateand support or oppose a particular party or candidate, the legislativeintent of the Political Parties Act is eviscerated as many organizationsnot meeting the qualifications of a party engage in the same acti-vities as political parties, regressing our political culture. If diverseand numerous organizations in a highly pluralistic and specialized so-ciety can support or oppose a particular party or candidate, regard-less of their founding missions, organizational sizes and forms, andregular activities, elections will be overheated and polluted withmoney and mudslinging. Such result is not only a big loss from asocio-economic perspective but also confuses voters' choices. It willwiden the inequality between a candidate supported by many organ-izations and another that is not, causing substantive inequality. Itwill make it more likely for candidates representing particular groupsand special interests to prevail over those representing national or regional interests, contradicting the purpose and ideal of elections.Especially, blood relatives, regional ties, school ties, and other organ-izations formed on the basis of a personal relationship may inter-vene and turn a healthy policy debate into a battle decided by per-sonal favors, personal proximity, and provincialism. Many para-government entities and outside opposition entities will crowd theelection with press statements issued to show off loyalty or accom-plishments or for a strategic purpose and thereby undermine a fairand clean election. Many organizations may be controlled by a few of their officers and state their support or opposition for a particular party or candidate regardless of their membership's will, misleadingthe public opinion. Therefore, the ban on organizational campaignactivities is not in itself unconstitutional.

The Court also reviewed whether the provision violates equality as follows:

Our Constitution guarantees all people freedom of association(Article 21) and extends special protection and restriction to oneform of association, namely labor unions (Article 33). Labor unionsare formed "by workers for the purpose of maintaining and improvingworking conditions and enhancing their economic and social statusthrough independent means" and have a structure necessary for suchpurpose (Article 33(1) of the Constitution, Articles 1 and 2 of theTrade Union and Labor Relations Adjustment Act). However, otherassociations covered by Article 21 of the Constitution are different intheir founding missions and are not of constitutional origins or re-quired to be formed by the Constitution. Therefore, the different pro-tections and restrictions

of 'labor unions' and 'other organizations'in their rights to engage in a campaign activity for or against a par-ticular party or candidate must have a rational basis of a constitu-tional origin. The ban on the non-union petitioner is not in itselfviolative of equal campaign opportunity or equality.

Justices Kim Moon-hee and Lee Jae-hwa criticized the majorityopinion from the perspectives of the openness and plurality of the po-litical will-formation process, the variability of the concept of publicinterest, and freedom of campaign activity. They pointed out that the fairness of election can be equally obtained by a restriction on'the method of campaign activities' instead of a ban on campaignactivities themselves. Therefore, the instant statute violates theprinciple of proportionality because it is excessively restrictive. Also,there is no essential difference between labor unions and other or-ganizations that may justify discrimination in campaign activities.Therefore, the instant statute discriminates against non-union organi-zations with no rational basis, violating equality.