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In São Paulo, Justice Gilmar Mendes talks about electoral reform

The President of the Superior Electoral Court (TSE), Justice Gilmar Mendes, was in the city of São Paulo in the morning of March 6th  to attend the #Reforma Brasil event, organized jointly by the São Paulo Trade Association (ACSP), the Federation of Trade Associations of the State of São Paulo (FACESP) and Panthéon Legal Institute, with the support of the Accounting Services Companies Union and the Consulting, Information and Research Companies in the State of São Paulo (SESCON-SP), of  Institute of Public Law (IDP) and São Paulo Trade Federation (Fecomercio-SP). Justice Gilmar Mendes tackled the subject of “Electoral Reform”. 

In his speech, he pointed out that, although electoral reform is desired by all, there has been little advance so far. According to him, the changes made have not been sufficient and were “have always been more or less cosmetic”.  Although initiatives such as the reduction of campaign costs were pointed out by Gilmar Mendes as positive advances, he emphasized that the essence of the current electoral-political system remains untouched.

“In its substance, the political-electoral system, as everyone recognizes, is extremely flawed. The number of parties has expanded significantly and, if there is not some caution, we will reach an extreme, because all that is needed is a number of signatures and a few requirements, and the parties are multiplying”, he said. “We see the lack of authenticity of the system, and how it becomes vulnerable to more diverse manipulations. This really needs to be discussed”, he added. 


The President of TSE presented a history of the evolution of the political-electoral system in Brazil, pointing out some of the reasons why a political reform has not yet been carried out as expected. According to him, in the process of re-democratization between 1985 and 1988, the political-electoral system in force since 1932 was maintained. Only a few innovations were implemented in the majority elections, such as the second round, but the electoral system for legislative house elections remained the proportional, open-list type.

"We did not make any changes. On the contrary, we made it worse, because we allowed coalitions in proportional elections. Therefore, this 'alphabet soup' that you see around here is used as a way of overcoming the so-called true barrier clause, which is the electoral quotient", explained. Gilmar Mendes demonstrated how the coalitions allow parties that have not reached the minimum electoral quotient, and therefore did not elect any deputy or councilman, uses the sum of votes to occupy seats in the federal, state and municipal parliamentary branches.

He recalled that the attempt to implement the barrier clause was suspended for 10 years by the Federal Supreme Court (STF), due to a Direct Action of Unconstitutionality (ADI) presented by political parties that opposed the law drafted by the National Congress in the 1990’s, which established the requirement of a minimum electoral performance. The preliminary decision granted this period of suspension of law enforcement so that these parties could achieve the necessary electoral performance. After this period, however, the constitutional court ended up deciding on the unconstitutionality of the law and preventing its implementation. “Those parties that were already preparing to merge or to appear in a new formation, because this was an inductive element, came back to their solo existence, in this model of coalition to which I referred, "said Gilmar Mendes.

The need for consensus to carry out an electoral reform was pointed out by Justice Mendes as one of the elements that delays its implementation. "There must be a moment, there needs to be conciliation, a concertation of interests. It is not enough to say 'I'm going to do the reform' and expect it to happen. There must be a combination of factors of a historical nature", he said. He pointed out that the issue of barrier clause had reached this consensus at the time of the preparation of the law by National Congress, but that the intervention of the Judiciary impaired its implementation. "At that time [in the 1990s] there was this atmosphere and it was done. But ten years later, because of this accident, we disturbed the reform", he recalled.

Electoral financing

Electoral financing was also addressed by Gilmar Mendes. According to him, the ban on donations by legal entities to electoral campaigns has not yet been the best solution. "Many advocate the public funding system. It's possible. But, in order to have that, we have to change the electoral system", he said. For Justice Mendes, the multiplicity of candidacies that is seen in each case makes it impossible to adopt electoral financing systems other than the private model. "In the past elections we had, just for you to have an idea, in [about] 5,600 municipalities, [about] 503 thousand candidates. By and large, [about] 40,000 candidates for mayor and [about] 460,000 candidates for councilman. How do I fund this with public funding? Think of a Party Fund to foot this bill ", he said.

The increase in Party Fund resources as a result of the ban on funding by legal entities was mentioned by Justice Mendes. "From the decision of the Federal Supreme Court to declare the unconstitutionality of the donation of legal entities, the Party Fund, which was around R$ 100 million at the beginning, has now reached R$ 900 million and is already discussed to be taken to R$ 5 billion”, he warned. For Gilmar Mendes, such a proposal does not align with the country's aspirations, given the lack of resources that often occurs in key areas such as health and education.

According to the president of TSE, Brazil lacks a culture of individual financing of electoral campaigns. He cited data from the 2014 presidential campaign, in which R$ 360 million was donated to Dilma Rousseff's campaign by legal entities, while only R$ 800,000 were donated by individuals.

As a result, Justice Mendes said he believes that Brazilian legislation on campaign financing is currently in a limbo. While individual financing does not materialize and financing by legal entities is outlawed, the public financing system is insufficient despite the recent readjustment.

Gilmar Mendes defends that the financing by legal entities be legalized, establishing, however, a ceiling according to the financial profile of each company. He believes that the ban on corporate financing will not inhibit the practice of slush fund, which defeats the purpose of the ban.

An airplane mid-flight

Gilmar Mendes recognized the difficulty of modifying the electoral system because, in his opinion, “we’re fixing an airplane mid-flight. Those who decide on the matter have arrived at Congress through the current system, so this is the election procedure they know. This is the fact; a new system is a leap into the unknown.

For Justice Mendes, the political parties’ disrepute in public opinion is another component that interfering in the alternative electoral models, such as the closed list, for example. “Into the current context of parties’ disrepute, which includes party leaders and “owners”, how will the voter choose amongst closed lists of candidates? On the list, so you can have an idea, if the party manages to elect five federal congressmen in the state of São Paulo, the top five will be elected. But how did the party arrive at the list? Was it established on a convention in which there was a real dispute? Or was it arbitrarily established by party leaders? It is highly likely that it will be the latter way. Therefore, some candidates will have automatic mandates, which make the system even less authentic”, he stressed.

This is one of the reasons why the possible alternatives have not yet been profoundly discussed by National Congress, on the Justice Mendes’s point of view. According to Gilmar Mendes, the approval of a system as the one with a closed list could represent a political suicide to congressmen who, given intraparty politics, would not be included on the list and, therefore, would not be able to renew their mandates. “It is a complex reform because it is a power given to Congress, in fact, a self-reform. Here is the Congress looking at itself, analyzing itself and defining its own destiny. It is the congressman saying: if I settle for the closed list, since I don’t have party control, I’ll be out of the list”, he affirmed.

The President of TSE defends that the system of public financing of the electoral campaigns matches with the electoral system of closed list. But, he completes, this could come to be a defective solution if the Party Fund is insufficient – which would be a propitious environment for slush funds.

Constitutional amendment

The “deconstitutionalization” of the electoral system - regulating it by means of complementary law instead of the Federal Constitution - is considered by Gilmar Mendes as a way out for an electoral reform. This idea, however, faces the population’s misgivings regarding this political class.  “Since there is distrust, any reform has to be done on the constitutional, even on the percentage details. No one wants to grant this to the legislator, being it a complementary or an ordinary law. So the issue remains paralyzed: it has to be made by a constitutional amendment – which ends up being made at the Senate and now depends on the Chamber of Deputies– or it will not be done. This is a problem because around the world there electoral reforms being made as a response to the crisis of democratic representation deficit. But we are stuck because of distrust.

The “deconstitutionalization” of the electoral system, for Gilmar Mendes, would leave it for the political party game and the majority formation themselves to make institutional experiences in search of an ideal system. Among these experiments, he suggests the adoption of the district vote at municipal elections; or the combination of the list vote for half the congressmen, and district vote for the other half, as it happens in the German model.

Justice Mendes highlighted that the deadline for the electoral reform, if it is to be valid to be valid at the 2018 Election, is September or October of the current year, because of the principle of annuality - in other words, within only six months only. Gilmar Mendes called upon the House of Representatives to soon vote on the electoral reform bill that was appreciated by the Federal Senate, which brings back the barrier clause and suppresses coalitions in proportional elections.

#Reforma Brasil

With the participation of politicians and jurists, #Reforma Brasil aims at debating and promoting a multidisciplinary reflection about the reform projects under discussion at the National Congress, with a view to helping resume economic growth. Besides electoral reform, proposals on educational, labor, political and tax reform, among others, were touched upon.

The event, which occurred at the SESCON headquarters, ended on Tuesday, March 7th.