Brazil’s Most Important Election Ever: What is at Stake and What Might Happen Next?

—Emílio Peluso Neder Meyer, Federal University of Minas Gerais, and Juliano Zaiden Benvindo, University of Brasília

Brazil’s next elections will be held on Sunday, October 2. More than any other political event since the country’s transition to democracy in 1985, these elections are an inflection point for Brazil’s near and long future. Depending on what comes out of the ballot box, it will define whether the country will strengthen its democracy or will move even further towards illiberalism. If Lula da Silva, who is leading the polls, wins, it will certainly be a relief: a pragmatist center-left politician and a former president (2003-2010), his government will be challenging after years of political crises, institutional disruption, and social divide, but it is a needed first step to reverse Brazil’s course against its democracy. On the other hand, if Jair Bolsonaro, the incumbent, wins, Brazil will be moving closer to that point where “he can hardly be removed by democratic means later.”^[1] This diagnosis is in accordance with what several scholars have sustained as serious markers of a democracy on the verge of collapse,^[2] and re-election of would-be autocrats, such as Bolsonaro, is normally depicted as a leading sign that, from that moment onwards, it is already too late to reverse democratic erosion. But what about the other variables that are less black and white in the scenario that Bolsonaro wins? And what about the challenges that Lula da Silva will face once in office?

The most likely scenario: Lula wins

Polls have shown that there is an increasing consolidation of the distance between Lula and Bolsonaro in the Brazilian presidential elections’ race. As elections approach, public figures that would supposedly support other candidates have migrated to Lula’s electorate, claiming that a strategic vote can bar Bolsonaro from attempting anything plainly unconstitutional after the voting results are released. The general feeling is that Brazil needs that Bolsonaro be defeated by a landslide victory in the first round to throw cold water in the likely scenario of Bolsonaro contesting the results, though he will most certainly do it. Still, even if the elections end in the second round, polls are still showing an even greater distance between both. Only a dramatic shift in people’s minds could thus alter such a scenario, which has been rather stable for over one year.

Therefore, it seems that Lula da Silva’s challenges are more related not to the elections themselves, but to his future government, which will take place in a significantly more problematic social and institutional environment. Inequality, the most damaging feature for Brazil’s rule of law,^[3] is now higher than before, and social welfare, which had greatly improved in the new constitutional order,^[4] has declined. Not only would Lula have to make the most of the recent economic growth, but he would also need to advance an agenda that goes beyond the traditional neoliberal repertoire. He was quite successful when he took office in 2003 to stabilize the economy and make it grow by strengthening some pillars of Brazil’s economic framework, while advancing a social agenda that gained momentum especially after the world’s 2008 economic crisis. Yet, the challenges are huge as labor has become more precarious, unemployment is still high after the pandemic, and inflation has escalated, with especially grave effects on the poor. The balance between fiscal constraints and social demands will be one such demanding tasks that will certainly place economic minds in several disputes.

Lula will face the challenge of the transition from a blatantly self-declared illiberal government to a political leadership with strong popular backing. That means reviewing decisions, executive orders, and even statutory legislation that aimed at creating the framework for Bolsonaro’s most authoritarian ambitions as well as feeding his base with a far-right agenda for even fiercer support. Such collection of measures would feature, among others: a) the revocation of executive orders that relaxed the access to guns in Brazil and allowed gun possession by ordinary people; b) a new environmental policy aimed at restricting illegal exploitation of lands and mining; c) the protection and recognition of the constitutional right to indigenous lands, bearing in mind that none of these lands received governmental accreditation during the current government; d) the enhancement of accountability and transparency of several institutions that were highly damaged during Bolsonaro’s administration as well as bringing to justice those who directly plotted against democratic institutions; e) the potential punishment of authorities, including Bolsonaro, for the deliberate mishandling of the COVID-19 crisis, f) a distinct relationship between civilian and military authorities in Brazil, a legacy that was left unresolved during the transition to democracy in 1985 and made Brazil pay a high price during Bolsonaro’s administration. 

This last policy is certainly one of the most difficult. Military and civilian authorities have been in a tense relationship in politics at least since the outset of the twentieth century in Brazil. Both Presidents Temer (2016-2018) and Bolsonaro were responsible for bringing the military from barracks to the political scene. It is not by chance that former President Temer is now suggesting that the next president should conduct a “national pact” that can include an amnesty to former presidents, including Bolsonaro. This is no novelty and has already appeared before, such as the amnesty during the civilian-military dictatorship (1964-1985).^[5] The context is distinct, though, and there is a chance that, during Lula da Silva’s administration, some stricter constraints on the participation of the military in political affairs will be brought to deliberation in Congress, as well as the sought-after reform of the military police, the most violent of all law enforcement institutions.

All these broad reforms, however, will be extremely difficult to approve in a National Congress that counts on huge chances of reelection of its members. By reason of the growing control of Congress over the federal budget and increasing pork-barreling and clientelism through unaccountable mechanisms of sharing budgetary grants (the so-called secret budget) – a movement that gained momentum during Bolsonaro’s years -, much of the success of the future government will hinge on the turbulent executive-legislative relationship. In the informal co-optation semi-presidential system that Brazil has become, President Lula da Silva will need to count on his abilities to reshape such a system to make it a bit closer to what was once Brazil’s “coalition presidentialism.”^[6] It will be a tough call, especially because congresspeople will not innocently abdicate their aggrandized powers, so some serious bargains will need to be brought to the table. Congress will be less fragmented, though – the 2017 Electoral Reform raised electoral thresholds and brought some higher constraints to political parties^[7] -, thus the scenario of building stronger coalitions may gain some ground. Moreover, Lula da Silva has already proven to be a very skillful negotiator in his previous administrations, with one of the highest levels of party discipline and approval of the governmental agenda in Congress.^[8] Yet, Brazil of 2023 is not Brazil of 2003: more than at that time the risk of cohabitation^[9] and potential conflicts between the Speaker of the House and the President are real.

What if Bolsonaro wins?

Polls clearly indicate Bolsonaro’s defeat either in the first or the second round, but we need to consider the dramatic scenario of Bolsonaro being reelected. Brazil would be moving even further to consolidate an illiberal agenda and erode its democracy. The democratic erosion, which has been already serious, tend to increase significantly. This is normally what happens when would-be autocrats are reelected, even if such a route may be a bit bumpier than normally depicted.

Bolsonaro will probably have a National Congress that will be at least as sympathetic to his government as the current one. There is a high reelection rate in the legislature: 65% on average of sitting members may be reelected, while 88% of the 513 representatives are running for a new term. What is more, the adoption of the “secret budget” significantly fostered an unequal electoral competition since those congresspersons who sided with Bolsonaro and the Speaker of the House, Artur Lira, have received larger grants that tend to result in greater political dividends. This informal co-optation semi-presidentialism that gained momentum during Bolsonaro’s first term would thus be strengthened. It is a perverse symbiotic relationship that plays well for clientelism and corruption, and it only happens because Bolsonaro has clearly relinquished his capacity of coordinating political behavior towards good governance. It has proven his most successful autocratizing strategy so far, though it also means that Bolsonaro is strongly dependent on fostering clientelism and pork-barrel politics. With such bargains, Bolsonaro may advance his illiberal agenda, but it is doubtful that he will reach a solid majority for constitutional reform. Furthermore, there is  good chance that the Supreme Court finally rules on the unconstitutionality of the “secret budget”, which would radically disrupt such a troubling behavior.

A second term will mean that Bolsonaro will have the chance to appoint other two justices to the Federal Supreme Court. They could join efforts with Justices André Mendonça and Nunes Marques, who were appointed in his first term and have been very collaborative with his government. It would not mean a majority yet (the Federal Supreme Court features eleven justices), but it would be close. Bolsonaro would not be satisfied, though. He has already announced his plans to raise the number from 11 to 15 justices in the Court and there is a proposal for constitutional amendment in Congress with such a purpose. It would not pass in the current legislature, but a second term could lead to a distinct outcome, even though not an easy one as it would suffer fierce opposition.

Bolsonaro will also deepen his neoliberal agenda. Several economic sectors and businesspeople have supported his government on the expectation that Bolsonaro will move forward with the privatization of public companies and services. This would probably include Petrobras, currently majority-owned by the state, and banks. He will also have to decide whether he will keep the social allowances and tax reductions he pushed for by reason of the presidential elections in 2022 or will, instead, adopt austerity measures. These would be tough years because, in the rush to secure his position in the electoral dispute, Bolsonaro created a snowballing amount of future debts whose effects will be felt already in 2023. He may move forward with his autocratizing strategy against democratic institutions, but, in the end, it may be the economy that will determine how far he can go with such a plan.

Other Variables

If it were a normal scenario, the upshot would be Lula da Silva will be most likely Brazil’s next president, with his inauguration taking place on January 1, 2023. But there are serious circumstances that may transform such elections, which in the past were mostly peaceful, reliable, and stable, into a dramatic event. Bolsonaro still counts on the sympathy of  law and enforcement members, who may not properly react against political violence from his supporters. Indeed, such aggressions have intensified during the electoral campaign, with cases of assault, battery and even murder. October2, when the first round takes place, will be an important thermometer of political violence and of authorities’ response to such attacks.

Moreover, the release of the election result will be a good testimony of Bolsonaro’s plans. Even if he attempts it, he cannot really count on a democratic collapse by traditional means. Although most of the military support him, the likelihood of a coup is slender. There is no environment for such an adventure in view of other institutions, economic elites, civil society, and international organizations. Still, it does not follow that Bolsonaro will not allege fraud and take legal measures, which are doomed to fail, in the Electoral Superior Court and the Supreme Court. In fact, everyone takes such a movement for granted.

The last months of the year will be disturbing, and it is extremely important that civil society and institutions work together to lay the groundwork for a peaceful presidential inauguration of Lula da Silva. Also, foreign leaders have an important role in recognizing the legitimacy of the results promptly. More than ever, this will be the time for testing the resilience of Brazilian democracy and its capacity to regain its strength for the years to come.

Suggested citation: Emílio Peluso Neder Meyer and Juliano Zaiden Benvindo, Brazil’s Most Important Election Ever: What is at Stake and What Might Happen Next? Int’l J. Const. L. Blog, Sept. 30, 2022, at: http://www.iconnectblog.com/2022/09/brazils-most-important-elections-ever-what-is-at-stake-and-what-might-happen-next/

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[1] Z Luo and A Przeworski, ‘Democracy and Its Vulnerabilities: Dynamics of Democratic Backsliding’ (2019) Social Science Research Network 11.

[2] See S Levitsky and D Ziblatt How Democracies Die, (Crown 2018); See A Huq and T Ginsburg, ‘How to Lose a Constitutional Democracy’ (2018) 65 UCLA Law Review 1, 1-78; D Landau, ‘Populist Constitutions’ (2018) 85 University of Chicago Law Review 521; J-W Müller What Is Populism?, (University of Pennsylvania Press 2016); KL Scheppele, ‘Autocratic Legalism’ (2018) 85 University of Chicago Law Review 545, 545-83; A Przeworski Crises of Democracy, (Cambridge University Press 2019)

[3] See JZ Benvindo The Rule of Law in Brazil: The Legal Construction of Inequality, (Hart Publishing 2022)

[4] See Marta Arretche, Parths of Inequality in Brazil: A Half-Century of Changes (Springer 2019).

[5] Lei n. 6.883, de 28 de agosto de 1979.

[6] See S Abranches Presidencialismo de Coalizão, (Companhia das Letras 2018) 440; S Abranches, ‘Presidencialismo de Coalizão: O Dilema Institucional Brasileiro’ (1988) 31 Dados – Revista de Ciências Sociais 5, 5-34.

[7] Lei n. 13.488, de 6 de outuro de 2017.

[8] AC Figueiredo and F Limongi, ’Instituições Políticas e Governabilidade: Desempenho do Governo e Apoio Legislativo na Democracia Brasileira’ in C Ranulfo (ed.), A Democracia Brasileira: Balanços e Perspectivas para o Século 21 (Editora UFMG 2007)

[9] See R Elgie Semi-Presidentialism: Sub-Types and Democratic Performance, (Oxford University Press 2011) 12.