by Eric Nogueira Andrade

Reviewed and translated by Matheus Lucas Hebling

 

Redemocratization, the 1988 Constitution, and the politics of electoral reform

            The democratic crisis that the country experienced during the 1960s culminated in a military coup in 1964, which would close the regime for a period of 21 years until its reopening in 1985. Even so, it is essential to highlight that the 1988 Constitution was reasonably prudent in choosing the institutions that would regulate democratic representation after a long period of military dictatorship. To a large extent, it has readopted what we can call the Brazilian republican tradition since 1934. The system of government remained presidential, with bicameralism and a proportional electoral system by open list. However, it was born with the promise of a review, scheduled for 1993, five years after its promulgation. In other words, the issue of reforming Brazilian political institutions was already born at the time of the enactment of the new Constitution and with a set date.

Thus, the country has been living under an institutional arrangement that has been subject to constant debates about possible reforms since its foundation. A relevant fact is that all legislatures since 1988 have been committed to the issue of political reform, creating special committees and suggesting and voting on bills and proposed constitutional amendments. In all, seven committees were set up in the Chamber of Deputies, four committees were set up in the Senate, and the Executive Branch submitted a reform proposal in 2009. On four occasions, the final projects of the committees were voted on in plenary. The judiciary, in turn, issued four decisions on the (un)constitutionality of electoral rules, directly affecting the debates of at least two special committees set up in the Chamber, and citizens were called to vote in a plebiscite in 1993.

Table 1 – Special commissions for political reform.

	Projects	Results	Caption	Voting
Constitution of 1988				1988
Constitutional review				1993
Special Committee of 1995	Bill 1670/1989	Law 9096/1995	Party law	1995
Special Committee 2001	PL 5268/2001	Rejected		2007
Special Committee 2003	Bill 1712/2003 Bill 2679/2003	Rejected Rejected		2007
Special Committee 2011	Obstructed
Special Committee 2015	Bill 5735/2013 PEC 182/2007	Law 13165/2015 EC 91/2016	party window reform	2015
Special Committee 2016	PL 8612/2017 PL 8703/2017 PEC 282/2016	Law 13488/2017 Law 13487/2017 EC 97/2017	mini reform                       mini-reform Coalition, Performance clause	2017
	PEC 77/2003	Rejected
Special Committee 2021	PEC 125/2011	EC 111/2021

 Source: Prepared by the author using data from the Chamber of Deputies.

Even so, only the most recent reforms concerning the prohibition of coalitions and the implementation of performance clauses for both candidates and parties can be considered significant from the point of view of the intra-party and inter-party dimensions. With regard to the rules that interest us, the electoral formula remained unchanged, and the same can be said about the structure of the ballot; both the district arrangement and the total size of the assembly changed only slightly between the promulgation of the 1988 constitution and the 1994 elections, with no significant effects. [1]; and, finally, it was only in relation to the method of distributing seats within parties that there were significant changes through the implementation of a performance clause for candidates and the prohibition of coalitions. The party performance clause also proved to be a relevant reform, but it only affected the distribution of resources from the party fund among parties.

Another relevant piece of information was the involvement of other actors – civil society organizations, the judiciary, and voters themselves – in addition to professional politicians in the issue of electoral reform. The table below provides a summary of the types of reforms that have been approved since the 1988 constitution. I adopt a typology of reforms initially developed by Renwick (2010) and slightly modified by this author in another work (ANDRADE, 2019).

Table 2 – Most relevant changes in electoral and party legislation, post-democratization until 2017.

Year	Changes	Type of Reform
1993	Introduction of campaign financing through donations from legal entities	Redistributive
1994	Presidential term from five to four years	Efficient
1995	Political Parties Law	Redistributive
1996	Introduction of electronic voting machines	Efficient
1996	Introduction of quotas for women of 20% and then 30%[2]	Efficient
1997	Introduction of re-election for executive positions	Efficient
1997	Blank and invalid votes are no longer counted in the calculation of the electoral quotient.	Efficient
1997	Final Election Law	Redistributive
2002	Verticalization rule	Court Decision
2006	Suspension of the verticalization rule	Efficient
2007	Suspension of the performance clause established by the party law	Court Decision
2007	Prohibition on changing subtitles	Court Decision
2010	Clean Record Law	Efficient
2015	Party Window Law	Efficient
2015	“Mini-reform” law	Redistributive
2015	Ban on campaign financing through donations from legal entities	Court Decision
2017	Second Law of the “mini-reform”	Redistributive
2017	Prohibition of Coalitions in Proportional Elections and Creation of a Party Performance Clause	Redistributive

Source: Own elaboration.

It is possible to identify six “redistributive” reforms, eight “efficient” reforms, and four “judicial decisions”. Redistributive and efficient reforms are those carried out solely by professional politicians and judicial decisions by the Supreme Court (RENWICK, 2010; ANDRADE, 2019). In addition to these reforms, there was a plebiscite on the system of government in 1993, but its origin dates back to the constituent assembly and is not a popular initiative since, according to the Brazilian Constitution, this form of direct democracy must be convened by the legislature.

The result of the reforms

All discussions on electoral reform in Brazil involve changes to three specific laws in addition to the Constitution itself: the Political Parties Law (Law No. 9,096/95), the Elections Law (Law No. 9,504/97), and the Electoral Code (Law No. 4,737/65).

The Law on political parties establishes some minimum requirements for party activity. If the party does not meet these requirements, it will not be able to register (Art. 7 and 8) or will not have access to party funds (Art. 41). In short, since the enactment of this Law, there has been no change in relation to the minimum requirements, with the exception of the declaration of unconstitutionality of the performance clause (Art. 13) and the revocation of party propaganda on radio and TV (Art. 49), by Law 13487/17.

The election law directly affects two dimensions of intra-party analysis. First, it determines that voters can vote for both candidates and party labels (Art. 5). This article indicates that voters have the possibility of interfering in the order of their preferred party’s candidates but does not say how many candidates they can vote for. Second, it determines the maximum number of candidates allowed per party, up to 150% of the number of seats available in the district, affecting the intra-party dimension by stipulating the degree to which voters can express preferences among candidates. In this case, the more candidates per party, the greater the degree of intra-party choice. Two other redistributive rules determine requirements for access to the special campaign financing fund, created in 2017, and for access to free electoral advertising. The reforms that have taken place since then have introduced minor changes to the requirements for access to free electoral advertising, reducing the advertising time and increasing the redistributive aspect of the Law by reducing the amount allocated equally to all parties since most of it is allocated proportionally to the number of representatives that the parties have. The prohibition of coalitions was also approved. [3].

Finally, the electoral code affects three intra-party dimensions. First, it determines that the ballot will contain only one name or number of the preferred candidate and their party acronym. In other words, the voter can vote for only one candidate. Second, it determines a limit of 10% of the electoral quotient for the exercise of pooling, an expression that indicates how much a candidate can benefit from the vote of other candidates from the same party (Art. 108). Third, it determines how the voter can affect the intra-party choice “according to the voting order,” according to Article 109. In other words, the voter has complete control over the intra-party choice (open list). Furthermore, article 105 allowed party coalitions, but it became unconstitutional since Constitutional Amendment No. 97/17, which prohibits coalitions in proportional elections. The reforms implemented only affected the pooling exercise, with the introduction of the individual performance clause (Art. 108) and the prohibition of coalitions, the first approved in 2015 ( Law 13165/15 ) and the second in 2017 ( EC 97/17 ).

In addition to changes to the three primary laws that form the basis of electoral legislation in Brazil, two constitutional amendments introduced significant reforms: the prohibition of coalitions and the implementation of a party performance clause.

The end of coalitions was suggested by the 2003 committee, which was not voted on in the plenary but was presented in the form of a bill and would be rejected in 2007. A new proposal to end coalitions was presented again in 2015, this time as a proposed constitutional amendment, but was also dismissed. Finally, in 2017, the same proposal was approved under the terms of EC 97/17.

The parliamentary performance clause, on the other hand, had already been established by the 1995 party law (Law No. 9,096/95), with the expectation that it would only be implemented starting with the 2007 elections. A reduction of the “barrier” from 5% to 2% was suggested by the 2003 committee, but it never made it to the plenary for a vote. A court decision in 2007, however, suspended Article 13, which provided for this rule. The decision was made in December 2006, and all legal procedures were completed in 2007, which was the time to prevent the “barrier” from operating for the 2006 elections. This verdict was given in response to direct unconstitutionality actions No. 1351 and No. 1354, filed by the Communist Party of Brazil (PCdoB) and the Christian Socialist Party (PSC), through which it was alleged a violation of the principle of equal conditions among political parties, as well as the democratic regime, the plurality of parties and the principle of proportionality. The provision of Law No. 9,096/1995, questioned in the ADIs, established a rule for the “parliamentary functioning” of political parties, according to which a political party could only act in Congress and have access to free electoral propaganda on radio and TV and resources from the Party Fund if it obtained at least 5% of the votes – excluding null and blank ballots – distributed in at least one-third of the states and at least 2% of the total votes in each of them. The term “parliamentary functioning” generated some controversy, but the prevailing understanding was that it was not a “barrier” stricto sensu since representatives elected by parties that did not meet this rule would not lose their mandate (NICOLAU, 2017: 144). A new proposal to establish the performance clause was presented in 2015, this time as a proposed constitutional amendment. Even so, it was not very rigid, stipulating that only parties that elected at least one representative in the Chamber or Senate would be entitled to the party fund. Finally, a new PEC, with rules similar to the 1995 proposal, was finally approved in 2016. According to the approved constitutional amendment, the following parties will have access to the party fund resources and free advertising on radio and television:

I – obtain, in the elections for the Chamber of Deputies, at least 1.5% (one and a half percent) of the valid votes, distributed in at least one-third of the units of the Federation, with a minimum of 1% (one percent) of the valid votes in each of them; or

II – have elected at least nine Federal Deputies distributed across at least one-third of the Federation units. (EC No. 97/2017, my emphasis).

For the 2026 elections:

I – obtain, in the elections for the Chamber of Deputies, at least 2% (two percent) of the valid votes, distributed in at least one-third of the units of the Federation, with a minimum of 1% (one percent) of the valid votes in each of them; or

II – have elected at least eleven Federal Deputies distributed across at least one-third of the Federation units. (EC No. 97/2017, my emphasis).

For the 2030 elections:

I – obtain, in the elections for the Chamber of Deputies, at least 2.5% (two and a half percent) of the valid votes, distributed in at least one-third of the units of the Federation, with a minimum of 1.5% (one and a half percent) of the valid votes in each of them; or

II – have elected at least thirteen Federal Deputies distributed across at least one-third of the Federation units. (EC No. 97/2017, my emphasis).

Final remarks

Therefore, it is possible to argue that electoral reforms in Brazil slightly affected the intra-party dimension by reducing the exercise of pooling through the individual performance clause and the inter-party dimension, prohibiting the use of coalitions in proportional elections, and establishing a party performance clause, reducing access to essential resources from the party fund and free advertising on radio and television.

 

Bibliographic references

ANDRADE, Eric N. Political Reform and Electoral System in Brazil: a comparative analysis with the German experience. Rio de Janeiro: Doctoral thesis in Political Science. Institute of Social and Political Studies – State University of Rio de Janeiro. 2019

______, (2020), “The 1988 constitution and political reform in Brazil: Lessons from four voting moments. Rio de Janeiro: Revista estudos políticas, v. 11, n. 22, p. 189-223.

CABRAL, João C. da Rocha. Electoral Code of the Republic of the United States of Brazil (Decree No. 21,076, of February 24, 1932). 3rd Ed. Rio de Janeiro: Freitas Bastos, 1934.

CHAMBER OF DEPUTIES. Annals of the Chamber of Deputies are available at https://www2.camara.leg.br

NICOLAU, Jairo. Electoral System. Rio de Janeiro: FGV. 2012.

______. Representatives of whom? The ( mis )routes of your vote from the ballot box to the Chamber of Deputies. Rio de Janeiro: Zahar, 2017.

RENWICK, Alan. The politics of electoral reform: Changing the rules of democracy. Cambridge: Cambridge University Press, 2010.

 

Notes:

[1]The total size of the assembly increased from 487 to 513, and the number of districts increased from 26 to 27. The average size of the districts increased from 18.73 to 19.

[2]The term “quota for women” was removed from the official website of the Chamber of Deputies when they discussed PEC 182/2007. Law No. 9,100/95 specifies that “ At least twenty percent of the vacancies of each party or coalition must be filled by female candidates.” In 1997, the quota was increased to thirty percent by Law 9,504, and “women” was replaced by “each sex” to designate the quota. This author intends to address this issue sparingly, limiting himself to using the term present on the Chamber’s website, although he recognizes the complexity of the subject.

[3]Before the coalition ban, the 2015 reform introduced a small change to Article 10 regarding the number of candidates allowed per party. The new wording added that coalitions would count as if they were a single party towards the limit on candidates. This rule, however, became obsolete with the 2017 coalition ban.