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Brazil’s electoral reform: The more things change, the more they stay the same

Liz McKenna, Ph.D. Candidate, Sociology | December 16, 2017

This blog was originally published by Nexo and cross-posted by CLAS Berkeley.

In the stream of sensationalist stories coming out of Brazil, electoral reform seems among the least newsworthy. The updated rules of the political game, however, reveal exactly how the deck gets stacked against democracy—and how incumbent elites tinker with institutions to consolidate power over the long term.

Late in the afternoon on Friday, October 6, Brazil’s Senate ratified Projeto de Lei da Câmara nº 110. PL 110 was a ticking time bomb: to take effect before voters next go to the polls, both chambers of Congress and the president had to sanction the reforms at least a year in advance of next October’s presidential election.

Among the many changes to existing electoral rules are: the time window in which candidates who are victims of online hate speech or fake news must be allowed to post their rebuttal on the offending outlet (48 hours), the date at which fundraising can begin (May 15), the exact volume permitted for campaign sound cars (80 decibels), the number of minutes TV stations must reserve for daily campaign commercials in the event of a runoff election (30 minutes), and the maximum size of campaign stickers (half a meter squared).

Far more revealing of Brazil’s underlying political power structures are Articles 16 and 23, which regulate campaign finance. In contrast to the United States—whose Supreme Court authorized corporate political giving in their infamous “money is speech” ruling—Brazil’s Supreme Court outlawed business donations in a 2015 decision. Given the taken-for-granted nature of the aptly named second cash register (caixa dois), Brazilians have no reason to believe this de jure ruling will be respected de facto. Nevertheless, at a time of heightened scrutiny toward corruption, Congress needed an above-board alternative to corporate giving. As a result, PL 110 established a nearly BRL$ 2 billion public fund, the Fundo Especial de Financiamento de Campanha (FEFC), known colloquially as the Fundão.

The law specifies that monies from this public fund will be allocated as follows:

  • 2 percent will be divided equally among each of Brazil’s 35 formally registered political parties;
  • 37 percent will be distributed in proportion of the number of votes each elected congressman earned in the last election;
  • 48 percent in accordance with the size of the party caucuses (as declared at the close of the last parliamentary session); and
  • The remaining 15 percent apportioned by party representation in the senate.

The house (almost) always wins

Simple math shows who benefits from this arrangement (Figure 1).[i] Color coding in the graph indicates how each party voted in two recent, pivotal votes. Blue indicates that the majority of party members voted in favor of the impeachment of Workers Party president Dilma Rousseff and last April’s labor reform—unpopular among the working masses and favored by business elite and international investors. Purple shows the opposite, and grey denotes internal inconsistency on these votes. The preponderance of grey on the long tail of the graph accentuates how Brazil’s party system encourages opportunism (fisiologismo), whereby elected officials offer votes in quid pro quo exchanges rather than as a result of a coherent political ideology.

Figure 1: Estimated Distribution of the FEFC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As political scientist André Singer observed, the fund distribution is ironic, given that it was intended to correct the distortions of corporate giving. In effect, the law privileges exactly those candidates and parties who benefited from such giving in previous elections. Moreover, as the number and size of blue bars indicate, all but two of the ten parties who will receive the greatest windfall from the Fundão in the next election voted in favor of Rousseff’s impeachment and the labor reforms, further indication of the once-and-future ideological composition of the most important deliberative body in the country.

The devil is in the details

Publicly funded elections are an attempt to mitigate undue private influence on politicians, replacing individual campaign contributions with government money. Further clauses in the law that open the door for self-financing mean that the law fails spectacularly in this regard. Michel Temer’s last-minute veto on a cap intended to limit the amount of money candidates can spend from their own pocket undermines the very purpose of establishing the FEFC. Independently wealthy candidates will rely on their own privately amassed fortunes, public fund be damned.

Although Temer abolished self-financing limits, the law retained language on campaign spending caps. The limit of BRL$70 million in spending for each presidential candidate (and an additional BRL$35 million in the event of a run-off) is a surprisingly austere figure for an electoral terrain that is continental in size. According to Brazil’s elections court, in 2014, Dilma Rousseff’s campaign spent BRL$ 350.5 million reais on both rounds, and Aécio Neves BRL$ 223.4 million. Adjusting for inflation, the new decree means that presidential hopefuls will have to officially declare that they spent, at most, 25 percent of what was spent by the winning campaign in the last election. Will this regulation be enforced or will it only apply selectively?

A new way of doing politics?

If the campaign spending cap has teeth, candidates may need to look for alternate way of persuading voters. As Adam Sheingate documents in his book on the business of politics, the only way to rein in the pernicious effects of money-in-politics is to impose supply-side restrictions: that is, limit the amount of money that campaigns can spend. As a result of the restrictions imposed by PL 110, Brazil’s presidential hopefuls may be forced to look to other approaches to campaigning, as for example, Barack Obama and Bernie Sanders did in the US and Emmanuel Macron did in France. In contrast to Brazil’s traditional model of relying solely on marketeiros, who treat voters as passive recipients of electoral propaganda, an ancillary benefit to the volunteer-centric method of campaigning is that newly built grassroots capacity can outlast a 45-day election cycle.

The invisible machinations of power

Volumes of research demonstrates that those who control procedures—what Bachrach and Bartz call the rules of the game—are able to systematically benefit certain groups at the expense of others. Therefore, opponents of PMDB-style politics would do well to take this less obvious view of political power to examine just how the kingmaker party achieved so much capillarity. For example, PMDB boasts 817,657 more party affiliates than its nearest competitor, PT. A simple univariate regression shows the relationship between the number of party affiliates and the size of the party’s congressional caucus (Figure 2). In other words, it is not only money that makes the political machine whir—base-building work also matters.

Figure 2: Number of party affiliates in relation to party representation in Brazil’s congress, 2014

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Power operates in subterranean ways, frequently through unobservable decisions and non-decisions. In other words, it is often in the quieter, behind-the-scenes fights like those that led to PL 110 that reveal how the party of Eduardo Cunha and Michel Temer—a president with one of the lowest approval ratings in Brazil’s history—will likely continue to wield power for many years to come.

[i] Technical notes: Although the math is simple, disentangling the denominators—the units of Brazil’s party system—is not. Figure 1 makes five assumptions:

  • The value of the FEFC is 1.7 billion reais, as discussed in senate proceedings and as reported by most news outlets. The variable costs written into the law may well mean that the value of the fund will be greater;
  • As one long-time political reporter remarked in a personal interview, “Brazilian politicians change parties like they change underpants.” Indeed, in the past six weeks alone, five congressmen have switched parties. To calculate the third allocation clause (48 percent distributed to the party caucuses as of August 28, 2017), I used the Internet Wayback machine, which captures webpages no longer online for certain dates, for July 18, 2017. Politicians who switched parties in this window are therefore not reflected in this calculation;
  • In the time since the 2014 election on which the second allocation clause is based, several parties have changed names (PTdoB, for example, rebranded to become AVANTE, and PODE became PTN). Because each of these parties were formerly part of a parliamentary bloc and their membership has morphed, the estimated amount they are to receive from the fund are also subject to change;
  • PL 110 specifies that the fund calculations only take into account elected members of congress. This estimate does not discount for suplentes and other sitting representatives who are unelected;
  • Two senators do not have a party affiliation and one (Aécio Neves) was suspended at the time I collected this data. As a result, the fourth allocation clause only takes into account 78, rather than 81, senators.

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