Parties and Electoral Campaigns Financing in Brazil: A Review of Legislation
Cíntia Pinheiro Ribeiro de Souza
University Research Institute of Rio de Janeiro
[email protected]
This article reviews the evolution of the parties and electoral campaigns
financing legislation since 1995, with the Law of Political Parties. It also analyses its
advancement concerning the development in the international context. That is
especially relevant regarding the current debate on political reform in Brazil. This work
is an introductory effort to systematize the information about the Brazilian political
financing regulation, not only conforming the rules, but also the doctrine and the
political facts including the recent developments of the political history in Brazil which
have driven their advancement. The first part comprises a historical digression as to
comprehend the electoral governance model adopted in the country and the reasons
by which the political financing, over all of electoral campaigns, rests being a challenge
to this model. The second part of this work describes the recent legal dispositions of
political financing, specially with the adoption of the Law of Political Parties in 1995, as
mentioned above, and the Law of Elections in 1997. The third part locates the
discussion about the adoption of the exclusive public political financing in Brazil within
the political reform debate installed in the Congress, mainly as of 2003. Finally, some
information on the political financing regulation developments is brought to the fore,
particularly of electoral campaigns in the world and, more specifically, in Latin America.
Introduction
The first election in Brazil took place when the country was part of the
Portuguese Empire. In 1821, there were deputies elected to represent Brazil in the
Portuguese parliament. With the independence, in 1822, the first electoral rules started
to be enforced. Only in 1989, the suffrage left to be censitaire, nonetheless not more
democratic1. Already in 1916, the electoral process would be delivered to the Judiciary
Power as an initiative to halt the corruption and the frauds, once till then those who
managed the elections were the politicians themselves. Finally, in 1932, it was brought
forth the Electoral Justice which was extinguished with Estado Novo dictatorship in
1937 and having resumed its activities in 1945, with the end of this dictatorship. Since
this date, it was called Electoral Justice the set formed by the Supreme Electoral Court
(Tribunal Superior Eleitoral), the Regional Electoral Courts (Tribunais Regionais
Eleitorais), the local Judges and Electoral Juntas.
The model of electoral governance adopted in Brazil since 1916 is judicialized,
as above-seen. Its objective was to rule out the political interests of the electoral
process and to guarantee the electoral competition’s and its results’ fairness and
legitimacy. This model was spread worldwide more expressively as of the third
democratic wave (LEHOUCQ apud MARCHETTI, 2008:880).
The Supreme Electoral Court (SEC) is composed mainly of members
indicated by the ministers of the Supreme Federal Court (SFC); the latter designed to
be immune to the party-political interests and to moderate the majoritarian forces
(MARCHETTI, 2008:881). The rule making of the party-political competition, albeit a
Legislative competency, has suffered from a great sway of the Judiciary Power, due to
the adopted electoral governance model which concentrates the rule application and
1
The suffrage left to be censitaire with the Decree no. 6 in 1989, but it passed to be forbidden to illiterate
people. Brazil had on average 12 million inhabitants and merely two million of them were literate. Within
this latter group, one million were men and only 400 thousand were older than 25 years old, this being the
sex and age conditions which enabled voting. For more, see NICOLAU, 2002 and MENEZES FILHO,
2007.
adjudication functions within only one organism. The latter is strongly influenced by the
SFC and, therefore, conceived quite as a Constitutional Court in the electoral realm
(Ibidem:890). As it will be seen forward, there is an increase in number of legal
dispositions aiming at regulating the parties and political campaigns financing,
established by the SEC’s normative instructions, resolutions, complementary decisions
to the laws, summaries, among others, since 1992. Thereby Brazil follows the world
trend of an increasing regulation of electoral campaigns.
Despite the Electoral Justice warrant of the universal suffrage and example of
good electoral enrolment and votes counting with electronic voting machines, the
money influence and economic power abuse problems persist. Tereza Sadek (1995)
indicated that combating these problems represents one of the Electoral Justice
challenges, even more because of the difficulties to judge all the financial reports. Even
though the equality has been guaranteed among the voters (one citizen casts one
vote)2 through the universal suffrage and the legitimacy of electoral process, as well as
its results, the equality among the political competitors (each candidate with fair
possibilities of running the election) and other political financing problems alike are to
be resolved yet.
The model which rules increasingly has difficulties to inspect the reports and
enforce the rules about political financing more effectively to guarantee less plutocratic
elections. In short, extensive regulation is not very satisfactory inasmuch as it badly
regulates some aspects of the political financing.
Recent developments of the legislation
Since the Electoral Justice resumed its activities in 1945, with the end of the
Estado Novo dictatorship, until the 1990s, the legislation about political financing
changed considerably. Through this time, financing left to be more liberal; initially, they
had been permitted private donations of single persons and corporations (except
foreigners) to electoral campaigns and it has been demanded only the obligatory party
accountability organization in order to verify the resources origins. Later, the regulation
veered to prohibiting donations of single persons and corporations, as the country went
in the Military Regime (1964-1985), while all the campaigns financing processes had to
be passed by the party apparatus. After the Federal Constitution of 1988, under the
redemocratization process, it returned a more liberal approach to the political financing,
although with some authoritarian vestiges (TRINDADE, 2004). An example is the fact
of the bans of unions and class institutions donations to political campaigns.
Since the 1990s, the party and electoral campaigns financing legislation in
Brazil has developed and maintained the mixed financing model, in which private and
public financing exist together in order to give more fairness to the political-electoral
competition. As of it, the legislation has been greatly adapted owing to scandals
involving politicians and their donors, in accordance with Bruno Speck (2005) and
Ernesto Araújo (2004). In the beginning of that decade, crises of this nature resulted in
President Fernando Collor de Melo impeachment and in the Budget Commission trial.
However, this dynamics is not Brazilian exclusively. The German political financing
regulation, enforced since 1994 under its recent form, is considered a model to be
followed as to empower the small donors as opposed to the big ones. Even so, it was
preceded by scandals involving illegal payments to parties in the 1980s, among other
plutocratic schemes (FOGG MOLUSTI and TJERNSTRÖM, 2003: 122).
Consequently, changes have happened to the legislation in order to modify
that scenario. From these events, it is to be asserted that two laws regulate mainly the
2
The equality among the voters (one citizen casts one vote) does not exist strictly. The electoral rule is
advantageous to the least populous states to the detriment of the most populous ones when transforming
votes into chairs in the Chamber of Deputies. That is an extra component of disproportionality of the
Brazilian federalism, beyond the Senate.
parties and electoral campaigns in Brazil: the Law of Parties of 1995 and the Law of
Elections of 1997. Besides these two laws, there are other legal dispositions touching
it:
•
the Electoral Code (Código Eleitoral, Law 4.737, 15 July 1965);
•
the Federal Constitution of 1988 itself bans foreign resources to be
received by parties; it establishes conditions to be fulfilled in order to guarantee the
access to the media (radio and television) and to the resources of the Parties Fund
(Fundo Partidário), as indirect and direct public financing forms respectively; one of
them is the disclosure of the financial reports to the Electoral Justice and;
•
the Ineligibility Law (Complementary Law 64, 18 May 1990) which also
regulates problems resulting of the money sway in politics.
The Law of Parties concerns about the parties organization and about the
demand of limiting their financial revenues and expenses on their own. It also bans
foreign, unions and class institutions, social and political institutions contributions, as
well as of any institution whose resources are in any part public. The unions and class
institutions are forbidden to donate because they receive public resources resulting
from a compulsory tax as well as because of the rule that all workers must be
represented by a single union, without regard to political or ideological convictions.
Thence, it is necessary to pursue a reform on this system to guarantee to these
organizations financial independency vis-à-vis the state and also the unions’ plurality in
order that there can be different unions, hence, permitting them to support different
parties accordingly to their interests.
Additionally, this law (of parties) regulates the distribution and the use of the
Parties Fund resources, which only can be received by the parties. This measure is an
initiative to balance the candidate’s relationship with the party and vice-versa,
empowering the latter one. It is specially important if the candidates are those who
receives the majority of the private donations while the personalismo grows rapidly in
present-day politics. Still, this law prohibits paid political propaganda on the radio and
on the television, but there are tax deductions to the channels because of the time
used freely by the parties and the provision of free use to public buildings for parties’
conventions as a way of indirect public funding.
The Law of Elections, conversely, intends to rule, in particular, the electoral
campaigns. This law holds the parties and the candidates responsible for the
campaigns’ expenses, considering the candidate co-responsible for reporting and
disclosure of the accounts together with the campaign controller. That kind of solidary
responsibility is clearly a result of the scandals that happened in 2006, involving the
Workers’ Party3 (Partido dos Trabalhadores) non declared funds (“caixa dois”), while
this party was the ruling one. President Luiz Inácio Lula da Silva claimed ignorance
about the party’s financing, having being seen relatively safe from that crisis. Alike the
Law of Parties, the Law of Elections ascribes to the parties that they ought to anticipate
their campaign spending in the electoral year and fines are foreseen to those who
spend over that pre-established limit. Moreover, the fines are determined accordingly to
the excess of this spending. Yet, the limit is a self-imposed one and it seems not to
make much sense in asking that the parties themselves set those electoral spending
limits. Regarding the parties and the candidates revenues, the law establishes who and
how much he/ she can donate while it punishes the use of non declared resources with
the cancellation of the candidate’s registration or the elected candidate’s diploma
annulment. Nevertheless, the adopted criterion to limit the amount of single persons
and corporate donations has perpetuated the inequality of conditions within the
3
See the Electoral Supreme Court resolutions 22.160 and, especially, 22.250, both of 2006. See also
Speck (2005) and Hunter (2007).
electoral competition, insofar as these limits have been defined as a function of those
persons’ earnings. The calculation of the maximum allowed to be donated is done with
respect to those earnings percentage (10% of the single persons’ gross income and
2% of the corporations’ gross revenues), resulting in that the well-off can donate more
than the others. Summing up, this law’s innovation encompasses the donors’ sanctions
(particularly corporations) for those who donate over the limits, consisting of fines on
the donations excess and the prohibition to participate in public biddings and contracts
for five years long. That is a trend in all Latin America, that is, to punish not only the
parties but also the donors (Argentina, Colombia, Costa Rica, Ecuador, Honduras,
Mexico, Nicaragua, Paraguay and Venezuela) (ZOVATTO, 2003:110-111).
In addition to combat the abuse of economic power, it also bans the
candidates’ donations in electoral year, as a measure to avoid vote buying and,
consequently, money sway more generally.
Finally, it also rules how the revenues and spending must be reported and
disclosed, including how the campaigns remainders are to be used, with deadlines, and
it punishes those who do not accomplish with those procedures with the impossibility to
them to take office. In this sense, Brazil has been an example of good practice in
searching for political financing transparency, by demanding the disclosure of
campaign political financing reports on the Internet. Despite that, there is still the
challenge to inspect those reports effectively.
Below there is a figure with the evolution of the legal dispositions on the
political financing in Brazil:
Notes: Legal dispositions: Electoral Code; Federal Constitution of 1988;
Political Parties’ and Elections’ Laws; Complementary Laws and the Supreme Electoral
Court jurisprudence. As seen above in the graph, a lot of the dispositions were created
and modified within the legislation on political financing in the moments in which it
happened elections, specially the presidential ones (1990, 1994, 1998, 2002 and 2006).
It is important, thus, to remember the crises with plutocratic nature. In 1992, there was
the President Fernando Collor de Melo impeachment. In 2006, another scandal, on the
Partido dos Trabalhadores (the Workers’ Party) “caixa dois” non declared funds
occurred.
Sources: BRASIL. TRIBUNAL SUPERIOR ELEITORAL. (2008), Código
Eleitoral Anotado e Legislação Complementar. 8ª edição rev. e atual. Volume 1 e 2.
Brasília: TSE.
Bruno Speck (2005) classifies the Brazilian legislation on political financing in
accordance with three criteria: firstly, how much it promotes equality among
competitors; secondly, how much it guarantees the elected representatives integrity
before their donors and; thirdly, how much it assures transparency. These criteria are
relative to the corresponding three risks to be avoided with these measures. Regarding
equality, the legislation in Brazil has contributed in a still incipient manner, according to
the author. As seen above, it is demanded by law that the parties and the candidates
can establish themselves the limits to their campaign spending. By doing so, the law
does not prevent that some candidates spend over other candidates significantly,
ensuing from it greater chances of electoral success for the former. Likewise, on the
subject of integrity, the elected candidates are very vulnerable to the pressures of their
donors owing to a trend of increasing campaigns’ costs whereas the riches are allowed
to donate more relatively to the poor. The limits defined in reason of the donors’ income
enable the continuation of inequalities and encourage a greater dependence of the
candidates on a small number of donors who can donate great amounts of money.
Nevertheless, it must be recognized that the legislation actively pursues a more
transparent political financing, as it rules the ways in which it must be reported and
disclosed, with deadlines and the Internet as an obligatory means of making the
accounts public.
Political financing and political reform
This work reviews the recent legislation on parties and electoral campaigns
evolution in Brazil and adopts as a turning point the Law of Parties advent in 1995.
That is justified by this law being the most significant initiative in the redemocratization4
period and in the Post-Constitution of 1988, and organizing important aspects of the
party life that influenced the political competition and, in turn, the parties financing
rules. In general, this enterprise of managing and ruling the parties’ life and the
elections as a political reform agenda component was consolidated during the 1990s.
Just as Leonardo Avritzer and Fátima Anastasia (2006:11) defend, in this period the
debate veered from a large agenda, which broadly comprised the political institutions
organization, to more defined points to be reformed: the political system rules
reorganization, including the political campaigns financing type; the creation of new
institutions capable of raise the participation and the different forms of interaction
among representative and participative institutions. In 2003, the debate grew up in
force within the Chamber of Deputies. A project of law created by a special commission
was approved as the reform proposals had been reviewed and had been rationalized
by that commission into a single suggestion. This project of the Special Political Reform
Commission is still in course and among its structural propositions, like party fidelity
and the closed list in proportional elections, is public exclusive electoral campaigns
financing. The latter had already been brought to the discussion within the project of
law 4.593/2001, which comprised ancient proposals from 1999 and were resumed in
2003 (SOARES and RENNÓ, 2006).
The central argument of the public exclusive financing supporters is that the
new rule shall encourage campaigns cheapening and greater transparency to the
spending accordingly to the limited received resources. There are those who are in
favor of this proposal following constitutional principles, as the Constitution of 1988
condemns not only the abuse of economic power but also any money sway in politics
more largely (DECOMAIN, 2006). However, the adoption of the public exclusive
financing does not solve, likely, the problem of illicit resources (e. g., non declared
funds) and corruption. The latter and its combat is one of the reasons to bolster this
new proposed system and if its adoption is not a satisfactory answer to that problem, it
4
From 1971 until the end of the authoritarian period, the private contributions were banned from political
financing.
has seemed to be problematic to expect a definitive solution from the public exclusive
financing system. In conclusion, it is relevant to remember a global trend which André
Krouwel (2006) identified as the political parties’ cartel trend. In this scenario, the
parties seem not to differentiate very much from each other concerning the most
essential public policies. They are more interested in office seeking and maintaining
their power as incumbents. They can survive, less responsive to society, due to their
administrative domain as they thwart new competitors to enter the party life. This would
be an additional argument against the public exclusive financing, as it encourages a
more inflexible party system and a more difficult renovation of it depending also on the
resources distribution criteria. Currently, in Brazil it has not been so easy to create new
political parties (NICOLAU, 2009).
In any case, there are those who doubt on the campaigns financing and even
about the campaigns themselves relevance to the electoral results in Brazil and,
consequently, to political reform. Following this approach, a country in which the
elected candidates are those who offer some kind of social assistance to their
constituencies as a type of institutional clientelism (GAY, 1999), would only count on
campaigns to have marginal effects. Additionally, there is a belief in which the
developments of the electoral legislation, as well as the reforms, only resulted to leave
things unchanged (MIRIAM apud MENEZES FILHO, 2007:87) accordingly to a more
paretian vision of Brazilian politics of some jurists in Brazil.
Conversely, through a more institutionalist perspective, there are those who
mind the importance of the campaigns in the Brazilian case (SPECK, 2005; SAMUELS,
2006 and HUNTER, 2007). David Samuels (2006) presents a study which shows that
the most voted candidates in Brazil were the ones who received a greater amount of
declared donations. According to this research, on average, the winners to Executive
positions spend the double of the spending mean of all other candidates. On the one
hand, one reason to explain that is two-round system (e. g. for presidential elections)
adoption for the most of Executive positions. This system contributes to spending
growth as it exceeds the campaign’s length over more one round. On the other hand,
the differences are even greater among the winners and losers to Legislative positions,
due to the electoral system which matches proportional representation and an open
list. This system makes the campaigns even more competitive because candidates are
also running against their own party candidates being likely to raise their campaign’s
costs. Furthermore, Bruno Speck (2005) states that there is a positive association
between donations and votes received by candidates competing for the 2002 federal
deputy position in Minas Gerais state in Brazil.
Nevertheless, those authors reveal something alarming: there are not but few
people and enterprises that donate each a great amount of money to candidates’
campaigns. Hence, the political market in Brazil is closed according to Samuels (2006)
and less than a dozen of people, generally relatives, and enterprises give money in
order to finance a candidate’s campaign. As affirmed above, that may also be a result
of the financing legislation which allows great donations by the richest ones when it
establishes the limits on donations with reference to the donor’s income. Besides,
when such donations are taken by sector, the research noted that banks concentrate
their donations to presidency’s and senate’s candidates whose prerogatives embrace
economy policy, while civil construction industry are more tied to governors, senators
and deputies that are more relevant in distributing the construction projects and the
oeuvres. Given that picture, the author reiterates that campaigns’ raising costs may
indicate greater electoral competition.
Additionally, Wendy Hunter (2007) reaffirms the electoral campaigns
importance in Brazil by means of its argument about the Workers’ Party efforts to
maximize its electoral success. Like Samuels, Hunter emphasize that left parties have
more difficulty to raise funds via private donations. Usually, left programmatic parties
are more dependent upon the public funding (e. g. Brazilian Parties Fund) and are
exclusive public political financing supporters too. Therefore, there is an incentive to do
not declare funds (“caixa dois”) and to ensue in vote-maximization. So, such strategy to
stress vote-maximization, enough attractive to make the Workers’ Party opt for it in
order to have the expected electoral success for presidency in 2002, also illustrated the
campaigns relevance, as well as its financing, to the candidate’s electoral success. The
very uncertainty on the electoral results and the campaigns effects promotes a spread
increase in spending by candidates insofar as they do not find significant limits to it.
International comparison, world developments
Karen Fogg, Patrick Molusti and Maja Tjernström (2003) noted some regional
trends on recent political financing regulation developments. Beyond a general trend to
regulate increasingly political campaigning and, thus, its financing, their study shows a
variety of alternatives which have been developing in different countries and regions,
specially under a context of regional integration, according to different levels of
democracy consolidation and electoral systems adopted. In countries whose
campaigns are more candidate than party-centered, like in Brazil, the open list under
proportional representation encourages campaigns cost raising as they become more
competitive and, also, results that candidates raise campaigns funds more
independently, regardless of their parties5.
This study divides the world in: Africa, Anglo-Saxon orbit, Asia, Latin America,
Continental Western Europe and, Central and Eastern Europe. There is a few common
efforts to regulate political financing in Asia and a lot of difficulties in Africa, because of
the latter’s multiparty politics is comparatively a recent phenomenon. However, there
has been a widespread worry about the need to promote a less corrupt politics. Within
the Anglo-Saxon orbit, Canada exemplifies that perception with great pressures in
order to avoid corporate money sway in politics, prohibiting donations made by
enterprises, unions and lobby groups to political parties. The Canadian model seeks to
prevent campaigns raising costs by limiting them. Also, it reimburses campaign
spending partly and it rewards small donations received by candidates and parties with
a tax credit, and still it demands revenues and disbursements transparency. Under this
model, an independent body is responsible for enforcing those rules.
Conversely, in Continental Western Europe, Germany has a broader public
financing model, by ensuring a more balanced financial support to the parties. Such
balance is achieved through matching private funds raised by the parties with public
funds given by the State6. The received public subsidies ceiling is defined regarding the
funds raised by parties from transparent private sources and in reference to the
absolute fixed amount of public subsidies that can be offered by the State. Concerning
distribution of those funds, German legislation establishes that 60% of the Treasury
funds are distributed matching small single donations and the membership fees
following the proportion of 2:1, respectively. The remaining 40% is distributed
according to the party’s most recent electoral success (number of votes received).
This model promoted a more democratic (and less plutocratic) campaigns financing in
Germany because the total amount of donations proceeding from donors whose
donations were small is relatively greater than the sum of big donations
(NASSMACHER, 2003). Something alike was adopted within the European Union
level, as the parties must raise by themselves at least 25% of their resources in order
to demonstrate their representation, as the International IDEA study says.
Complementary funds are distributed all through European Union in proportion to, most
5
Despite this expected effect of the candidate-centered campaign, Samuels (1997) showed that it is
possible for parties under these conditions to develop alternative strategies in order to pursue a more
party-centered campaign. This is the case of the Workers’ Party and its candidates, which had few
resources individually and have preferred to take a collective campaign strategy.
6
According to the International IDEA study, Germany has now a combination of the Canadian tax credits,
the U.S. matching funds and the Continental West Europe flat grants. See specially chapters 3 and 7 of
the IDEA Handbook on Funding of Political Parties and Election Campaigns.
of it (85%), its past electoral success and, the remaining (15%), to all qualified parties
equally7. With reference to the Americas, that study indicates a growing interest about
the parties and political campaigns financing in the last years, mobilizing even the
presidents and prime-ministers to sign a declaration on this theme in 20038. Such
declaration aimed at reinforcing political parties and assuring more effective,
transparent, egalitarian and participatory (regarding citizens in general) political
competition mainly. Besides, it was appointed the need to diminish corruption regarding
rule of law and enforcement challenges especially. Individually, there are countries that
have changed their legislations, like Chile and Peru appointed cases. However, that
study declares that Eastern European countries have found difficulties in dealing with
those problems despite Latin American advancements, as the latter has a more
independent private sector and its multiparty democracies are more stable.
Latin America campaigns raising costs is not but a global trend. In Brazil, such
is verified mostly because of television propaganda spending and of the electoral
system itself which enables candidate-centered campaigns in general, with greater
competition to proportional elections due to the open list and to majority elections
thanks to two-round system. In order to match that spending, candidates and parties
receive donations from different and sometimes conflicting ideological sources, friends
and relatives in its major part, along with Samuels (2006:146).
Though the limited public financing impact at the continent, oscillating from
country to country, the Brazilian case is quite different in this regard. As the free radio
and television electoral propaganda have been broadcast by private channels, this
indirect public financing has had great impact on the political competition. It results
more egalitarian – although not perfectly, as the distribution is done concerning past
electoral results, as Speck says (2005) – respecting the main objective of the
proportional representation system. Brazil could be called an outlier in this case
because the most of other countries in Latin America does not precisely regulate the
access and distribution of this kind of indirect political financing while candidates and
parties spending with media reach from 40 to 70% of all other campaign costs
(ZOVATTO, 2003:99).
Another emergent trend is, including Brazil, limiting spending regarding those
proceeding from public funds (e. g., demanding that part of those funds to be used with
research and political formation). Nonetheless, some gaps still remain with reference to
the system of sanctions. It lacks enforcement to make those sanctions effective, not
only to punish but also to dissuade likely transgressors, working in a more preventive
manner.
Comparatively, the Brazilian legislation is one of the more recent ones (1995)
in Latin America whereas some countries keep their oldest legislation, like in Uruguay
(1928). That exemplifies that the legislation is changing and is being reformed in Brazil.
Still, changes frequently happen right after scandals in Brazil and by being so such
rules have been little preventive on their effects.
Brazil follows most of the other Latin American countries trend of permitting
the use of public resources to match their parties’ daily costs as well as campaigns
costs, however establishing a minimum amount (20%) which must be spent with
research, training and political formation. This kind of spending is also foreseen in
Argentina, Bolivia, among others, as asserted by Daniel Zovatto (Idem). Concerning
these public resources distribution, Brazil allocates a little part of them (5%9 of the
Party Fund and 1/3 of the radio and television time) by an egalitarian manner among
the qualified parties to receive those funds and the remaining is distributed according to
the parties’ last electoral results in the Chamber of Deputies. That could be called a
7
European Commission, 19 February 2003 and European Parliament, 19 June 2003.
Council of Presidents and Prime Ministers of the Americas, Carter Center, 19 March 2003.
9
Before 2007 that proportion was of 1% (egalitarian) and 99% (electoral results), now it is of 5%
(egalitarian) and 95% (electoral results), as the former was considered unconstitutional and substituted by
the latter according to the 11.459/2007 Law.
8
mixed form with regard to the fact that most of Latin American countries only use the
latter criterion. In Brazil, the qualified parties to receive funds and free time on radio
and on television are the ones whose statutes are registered in the Supreme Electoral
Court, despite of most of other countries establishing some more specific threshold to
make parties eligible for those forms of public financing. Another element to be
considered is the moment by which those funds are handed in to the political parties. In
Brazil, the distribution is made through a very particular manner, as the National
Treasury hands in 1/12 resources of a special account in a monthly basis to the parties.
The most common forms of resources distribution in Latin America are those that
happen before the elections or both, before and after the elections (combined type). All
the factors which regulate the distribution and the eligibility for the public funds interfere
in the easiness to creating new parties as well as they help to promote or not a more
egalitarian competition, as the public funds compensate the private ones depending on
the moment in which the distribution is made and, also, the rules that define each party
part on it. In Brazil, the public indirect financing, consisting of free time on radio and
television, is probably more egalitarian than in other countries, owing to the prohibition
of paid propaganda on radio and on television and to the broadcasting of the free time
be scheduled also during the “noble time” (“horário nobre”, between 20 p.m. and 22
p.m.). On the contrary, in other countries is more common to have a State broadcasting
and to permit paid propaganda (e. g., Argentina, Bolivia, Costa Rica, Ecuador,
Guatemala, Honduras, Venezuela), even though some of them limit private channels
propaganda (Ibidem).
With reference to private financing, two questions are raised with more
emphasis on Latin America. Illegal donations and money sway threat equality of
conditions to compete electorally. In relation to the first factor, there are bans of some
kind of donations generally, e. g. anonymous and illicit donations (from drug traffic),
and also rules that promote transparency, specially, reporting and disclosure. The latter
initiative is especially seen in Brazil as all the donations received must be deposited in
a specific bank account for the campaign and its whole campaign period report
(including all detailed bank statements) must be presented to the Electoral Justice,
even if no transaction exists. Moreover, every donation must have a receipt with the
donors’ identification. Regarding economic power influence and abuse, the ceilings for
contributions and for spending are developed having the former in mind.
Argentina and Brazil are the most prohibiting systems, banning contributions
of foreigners, social and political organizations, government contractors and non
identified people. Differently, Colombia and Nicaragua do not prohibit donations of
foreigners and many countries do not ban contributions of social and public
organizations, as unions, class organizations, autarchies and others. Less than a half
of the Latin American countries limit the amount of private donations received by
parties and candidates. In spite of Brazil limit, its criteria are questionable, as they are
established touching the donors’ income, and by that they galvanize the inequality of
conditions to continue, as aforementioned. Argentina and Guatemala define,
conversely, contributions ceiling of each donor vis-à-vis campaign spending. Still,
Bolivia and Mexico limit the private contributions regarding parties’ budget and received
public financing, respectively. Costa Rica and Paraguay define high ceilings according
to the minimum wage without differentiating between single person and corporate
donations. That implies disadvantage for single people, as the high ceilings are more
likely to favor the corporate donations, and in turn, those who can donate big amounts
of money. El Salvador, Guatemala, Panama, Peru and Uruguay have the most
permissive systems, in which there is no prohibition regarding the private resources
source or to their amounts. To sum up, there are great challenges to regulate
plutocratic donations within Latin America, even more due to the fact that parties may
count on membership dues very limitedly. To this point, the German matching funds
that reward those parties which raise more resources from small opposed to big donors
could be an alternative to be regarded, albeit with limited potential of application in
Latin America10.
Final considerations
Although there is a discontentment with the current mixed system, the debate
on political reform in Brazil ought to be long, given that there are controversial aspects
about the exclusive public financing advantages. Yet, the political financing legislation
adjustments can be made in order to reduce corruption, which is one of the most
conspicuous problems within this framework. Concerning the latter, Brazil has
searched to promote more transparency in the parties and electoral campaigns
financing regulation, by demanding detailed reporting and disclosure on the Internet.
Among the most likely effects of exclusive public financing, it is not the end of
corruption. Alternatively, an improvement of the mixed system can give more legitimacy
to the political process and approximate the politicians to the society, taking the
example of Germany and its matching funds scheme, in which the small donors donate
more resources than the big ones as a whole. Under this set, a political process less
plutocratic may start developing insofar as there are effective limits to political spending
and private donations to the political financing.
Acknowledgments
I must thank Marcelo Raimundo da Silva for reviewing my translation of this
article from Portuguese to English. Nevertheless, all mistakes that are left are of my
own responsibility.
I would also like to thank the support of the University Research Institute of
Rio de Janeiro (IUPERJ), as well as the funding provided by the Brazilian Committee
for Postgraduate Courses in Higher Education (Capes).
References
ARAÚJO, Ernesto Caetano Pereira de. (2004), “Financiamento de campanhas
eleitorais”. Revista de Informação Legislativa, 41(161):59-66.
ARTERO, Davi. (2005), “Limite de Gastos dos Candidatos” in Paraná
Eleitoral, 58.
AVRITZER, Leonardo e ANASTASIA, Fátima (2006), “Introdução” in L.
Avritzer e F. Anastasia (orgs.). Reforma política no Brasil. Belo Horizonte: Editora
UFMG. 11-14.
BEZERRA, Sandro Roberto de O. (2007), “A Lei 11.300/2006 – Aspectos
Relevantes”. Revista Jurídica da Escola Judiciária Eleitoral, 1(1):99-112.
BRASIL. (2006), Constituição da República Federativa do Brasil de 1988. 24ª
edição. Brasília: Câmara dos Deputados, Coordenação de Publicações.
BRASIL. TRIBUNAL SUPERIOR ELEITORAL. (2008), Código Eleitoral
Anotado e Legislação Complementar. 8ª edição rev. e atual. Volume 1 e 2. Brasília:
TSE.
D’ALMEIDA, Noely Manfredini. (2005), “Financiamento Político de
Campanhas e Partidos: a Experiência Mundial sobre Prestação de Contas” in Paraná
Eleitoral, 57.
DECOMAIN, Pedro Roberto. (2006), “Influência do poder econômico e
financiamento público de campanhas eleitorais”. Resenha Eleitoral, 13.
10
According to Jairo Nicolau (2009),”9,6% of Brazilian voters are formally enrolled with one of the parties”
in Brazil.
FARRELL, David. M. (1996), “Campaign Strategies and Tatics” in L. LeDuc,
R. G. Niemi and P. Norris (eds.), Comparing Democracies: Elections and Voting in
Global Perspectives. London, Sage. 160-183.
FOGG, Karen; MOLUSTI, Patrick and TJERNSTRÖM, Maja. (2003),
“Conclusion” in R. Austin and M. Tjernström (eds.), Funding of political parties and
Election Campaigns Handbook. Stockholm: International IDEA. 169-180.
GAY, Robert. (1999). “Entre el clientelismo y el universalismo: reflexiones
sobre la política popular en el Brasil urbano” in J. Auyero (comp.). Favores por votos?
Estudios sobre clientelismo político contemporáneo. Buenos Aires: Editorial Losada.
65-92.
HIRSCHFELD, Raphael Montenegro. (2007), “Abuso do Poder Econômico e
uso da Máquina Político-Administrativa em Campanhas Eleitorais e Controle das
Prestações de Contas” in Paraná Eleitoral, 63.
HUNTER, Wendy. (2007), “Corrupção no Partido dos Trabalhadores: o dilema
do “sistema” in J. Nicolau e T. J. Power (orgs.). Instituições representativas no Brasil:
balanço e reforma. Belo Horizonte: Editora UFMG. 155-168.
INSTITUTO ETHOS DE EMPRESAS E RESPONSABILIDADE SOCIAL.
(2002), “O financiamento de campanhas e as empresas”. Informativo Eleitoral, 15:3442.
KROUWEL, André. (2006), “Party models” in R. S. Katz and W. J. Grotty
(eds.), Handbook of Party Politics. London, Sage. 249-269.
MARCHETTI, Vitor. (2008), “Governança Eleitoral: O Modelo Brasileiro de
Justiça Eleitoral”. DADOS - Revista de Ciências Sociais, 51(4):865-893.
MENEZES FILHO, Anastácio Lima de. (2007), “Evolução Histórica do Direito
Eleitoral no Brasil”. Revista Jurídica da Escola Judiciária Eleitoral, 1(1):85-98.
NASSMACHER, Karl-Heinz. (2003), “Party Funding in Continental Western
Europe” in R. Austin and M. Tjernström (eds.), Funding of political parties and Election
Campaigns Handbook. Stockholm: International IDEA. 117-137.
NICOLAU, Jairo. (2009), Partidos e Democracia no Brasil (1985-2006).
Mimeo.
RIBEIRO, Renato Janine. (2006), “Financiamento de Campanha (público
versus privado)” in L. Avritzer e F. Anastasia (orgs.). Reforma política no Brasil. Belo
Horizonte: Editora UFMG. 77-81.
SADEK, Maria Tereza Aina. (1995), A Justiça Eleitoral e a Consolidação da
Democracia no Brasil (Série Pesquisas nº4). São Paulo: Konrad Adenauer Stiftung.
SAMUELS, David. (2006), “Financiamento de campanhas no Brasil e
propostas de reforma” in G. A. D. Soares e L. R. Rennó (orgs.), Reforma política:
lições da história recente. Rio de Janeiro: Editora FGV. 133-156.
SOARES, Gláucio Ary Dillon e RENNÓ, Lucio R. (2006), “Projetos de reforma
política na Câmara dos Deputados” in G. A. D. Soares e L. R. Rennó (orgs.), Reforma
política: lições da história recente. Rio de Janeiro: Editora FGV. 9-22.
SPECK, Bruno Wilhelm. (2005) “Reagir a escândalos ou perseguir ideais? A
regulação do financiamento político no Brasil”. Cadernos Adenauer, 6(2):123-159.
___________. (2006), “O Financiamento de Campanhas Eleitorais” in L.
Avritzer e F. Anastasia (orgs.). Reforma política no Brasil. Belo Horizonte: Editora
UFMG. 153-158.
TAYLOR, Matthew. (2006), “Justiça Eleitoral” in L. Avritzer e F. Anastasia
(orgs.). Reforma política no Brasil. Belo Horizonte: Editora UFMG. 147-152.
TRINDADE, Fernando. (2004), “Financiamento eleitoral e pluralismo político”.
Revista de Informação Legislativa, 41(161):47-58.
ZOVATTO, Daniel. (2003), “The legal and practical characteristics of the
funding of political parties and elections campaigns in Latin America” in R. Austin and
M. Tjernström (eds.), Funding of political parties and Election Campaigns Handbook.
Stockholm: International IDEA. 95-116.
___________. (2005), “Financiamento dos partidos e campanhas eleitorais na
América Latina: uma análise comparada”. Opinião Pública, 11(2):287-336.