—Juliano Zaiden Benvindo, University of Brasilia
Supreme Court decisions on the limits and scope of electoral rules are normally controversial. One of the reasons is that the boundaries between law and politics are often blurred. The US Supreme Court, in Citizens United v. FEC[1] and then in McCutcheon v. FEC[2] paved the way for an expansion of non-profit and for-profit corporate campaign contributions based on free-speech rights as described in the First Amendment. The Brazilian Supreme Court, on the other hand, issued a contrary decision last September 17, based particularly on equal citizenship rights.[3] As in the United States, interesting reactions and discussions have since arisen in Brazil. Moreover, the Brazilian example is important for understanding how individuals and institutions strategically behave when faced with new constitutional decisions.
The whole plot of the Brazilian Supreme Court’s decision is quite unique. In September 2011, the Brazilian Bar Association filed a Direct Action of Unconstitutionality against some legal provisions of the laws on financing political parties and campaigns, based on the argument that corporate donations further inequality to the detriment of citizens.[4] In public hearings held in December 2013 and April 2014, the majority of the eleven Justices declared their opinion that those provisions were unconstitutional. Even so, the matter remained unresolved for almost one and a half years because Justice Gilmar Mendes requested more time to study the case, thus suspending the Court’s final decision. This curious move was, moreover, coordinated with other actions taking place in Congress. While the case was suspended, the Chamber of Deputies passed a constitutional amendment[5] explicitly allowing corporate campaign contributions. This amendment is now under consideration by the Senate. At the same time, the Chamber of Deputies passed a political reform as ordinary legislation which regulated the viability of corporate donations.[6] In the Senate, this legal provision was, by a small margin (36 to 31), rejected, but, since the bill was originally from the Chamber of Deputies, once it returned, this House reestablished the previous text.
The whole ordinary legislative process was about to come to an end, pending only an expected presidential signature. The strategy to preemptively reverse the Supreme Court’s expected decision thus seemed to succeed. However, something quite extraordinary happened in the meantime. Only a few days before President Dilma Roussef’s deadline to decide whether to sign or veto the bill’s provisions, Justice Gilmar Mendes brought the case back to the Supreme Court. Chief Justice Ricardo Lewandowski immediately scheduled a public hearing for September 16, when Justice Gilmar Mendes presented his opinion (against the unconstitutionality of the law) for about five hours. He attempted to convince the other Justices to change their opinions, but he could not. The following day, two of the three remaining Justices concurred with the majority, and the final result was an 8-3 decision holding that corporate contributions are unconstitutional, particularly because they violate equal citizenship rights.[7] Justice Gilmar Mendes attempted to push for an adjournment until the following week – when President Dilma Roussef’s deadline would be already over – in order to specifically discuss a possible modulation of the effects of that decision.[8] Nonetheless, in the end, Chief Justice Ricardo Lewandowski emphatically argued that the ruling must immediately go into force for the municipal elections of 2016.[9]This outcome changed the political landscape and naturally fostered a substantial political backlash, especially in the Chamber of Deputies.[10] Some argued that the decision interfered with Congress’s autonomy over political affairs.[11] Others stated that the old legal provisions were unconstitutional because of the Court’s ruling, but not the new ones under consideration by President Roussef. Still, the new bill’s provisions would be quite certainly struck down if President Dilma Roussef signed it into law. She vetoed it at any rate, arguing that she could not disregard the Supreme Court’s precedent.[12] Even though the Speaker of the Chamber of Deputies attempted to overcome that veto in Congress,[13] the decision changed the legal landscape and led to the development of a new strategy. A new strategy needed to be found.
The remaining hope for those seeking to allow corporate campaign-finance contributions is thus in the constitutional amendment which is now pending in the Senate. The central argument is that the Supreme Court’s decision can be effectively reversed by a constitutional amendment specifically allowing corporate contributions to political campaigns. Nonetheless, it is unclear whether even this route can be used. Some argue that the Supreme Court’s decision was based on the equal citizenship clause of the Brazilian constitution, which is a petrified or unamendable clause. Any proposal for constitutional amendment which violates an unamendable clause is itself unconstitutional and can be struck down by the Supreme Court as an unconstitutional constitutional amendment. Moreover, it appears that the Senate, unlike the Chamber of Deputies, is not sympathetic to corporate donations, especially after that Supreme Court’s decision. The Senate President, Renan Calheiros, has already mentioned that an attempted constitutional amendment would disturb the harmony between Congress and the Supreme Court.[15]
These conflicting movements show that justices and politicians can adopt distinct strategies to defend their interests, sometimes manipulating the pace and timing of the constitutional agenda and sometimes using the constitutional tools to strengthen their very positions. A major purpose of constitutional design is to help prevent institutions and individuals from continuously disrupting – or abusing[16] – the rules of the game for their own benefit and to instead engender a coordination of behavior that will strengthen rather than weaken constitutionalism in the end.
Thus, the question of whether the Supreme Court or Congress should have the final word may be something of a distraction rather than the fundamental issue. Beneath this debate, there is the more central question of how different players (both individual and institutional) behave and coordinate their activities. Moreover, some features of institutional design, such as the existence of petrified clauses, can help to coordinate strategy in order to achieve a more desirable end. It is of course deeply controversial whether petrified clauses cut off or instead strengthen constitutional dialogue, but the example here shows that they can sometimes be a useful resource for nudging parties towards the recognition of constitutional values.
The outcome of the Brazilian example could easily have been the opposite under slightly different conditions. Nonetheless, the design of the Brazilian constitutional system helped to create some protection against certain disruptive and abusive individual and institutional moves. The game is not over, though. After all, the proposal for constitutional amendment is still under discussion in the Senate and the scope of the Supreme Court`s ruling has not yet been settled. Let`s see what the future holds, but for now, Brazilian constitutionalism may be winning the game.
Suggested citation: Juliano Zaiden Benvindo, Constitutional Design, Institutional Strategy, and Corporate Campaign Contributions in Brazil, Int’l J. Const. L. Blog, Oct. 30, 2015, at: http://www.iconnectblog.com/2015/10/constitutional-design-institutional-strategy-and-corporate-campaign-contributions-in-brazil/
[1] Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
[2] McCutcheon v. Federal Election Commission, 572 U.S. _ (2014).
[3] STF, ADI No. 4650, Relator: Min. Luiz Fux, 17.09.2015, Diário do Judiciário Eletrônico [D.J.e], 25.09.2015, 192 (Braz.).
[4]See Juliano Zaiden Benvindo, Corporate Campaign Contributions in Brazil: Of Courts, Congresses, and the Agendas of Individual Justices, Int’l J. Const. L. Blog, July 3, 2015, at: http://www.iconnectblog.com/2015/07/corporate-campaign-contributions-in-brazil-of-courts-congresses-and-the-agendas-of-individual-justices/.
[5] Proposta de Emenda à Constituição No. 182, de 23 de Outubro de 2007, Diário da Câmara dos Deputados [D.C.D] (Braz.).
[6] Lei No. 13.165, de 29 de Setembro de 2015, Diário Oficial da União [D.O.U.] de 29.09.2015 (Braz.).
[7] See Márcio Falcão, STF proíbe doações de empresas para campanhas eleitorais e partidos, Folha de S. Paulo (Sep. 17, 2015, 5:33 PM), http://www1.folha.uol.com.br/poder/2015/09/1683012-stf-proibe-doacoes-de-empresas-para-campanhas-eleitorais-e-partidos.shtml.
[8] See Carolina Gonçalves, Gilmar Mendes quer reabrir julgamento sobre financiamento de campanha até dia 2, EBC (Sep. 23, 2015, 1:41 PM), http://www.ebc.com.br/noticias/politica/2015/09/gilmar-mendes-quer-reabrir-julgamento-sobre-financiamento-de-campanha-ate.
[9] See André Richter, Decisão sobre o fim de doações de empresas vale para a próxima eleição municipal, EBC (Sep. 17, 2015, 7:33 PM), http://agenciabrasil.ebc.com.br/politica/noticia/2015-09/decisao-sobre-fim-de-doacoes-de-empresas-vale-para-proxima-eleicao.
[10] See Isabel Braga et al., Partidos estão atônitos com a decisão do STF sobre financiamento de campanha, O Globo (Sep. 19, 2015, 6:00 AM), http://oglobo.globo.com/brasil/partidos-estao-atonitos-com-decisao-do-stf-sobre-financiamento-de-campanha-17542928.
[11] See Gustavo Uribe et al., Dilma veta financiamento privado a campanhas aprovadas no Congresso, Folha de S. Paulo (Sep. 24, 2015, 10:01 PM), http://www1.folha.uol.com.br/poder/2015/09/1686258-dilma-veta-financiamento-privado-a-campanhas-aprovado-no-congresso.shtml.
[12] See Mensagem No. 358, de 29 de Setembro de 2015, Diário Oficial da União [D.O.U.], Edição Extra, de 29.09.2015 (Braz.).
[13] See Thiago Resende, Cunha defende derrubada de veto a financiamento privado de campanha, Valor (Sep. 25, 2015, 6:37 PM), http://www.valor.com.br/politica/4243064/cunha-defende-derrubada-de-veto-financiamento-privado-de-campanha.
[14] See Mariana Schreiber, STF decide que doação de empresas a campanhas é inconstitucional; Veja em que países isso já é proibido, BBC (Sep. 17, 2015), http://www.bbc.com/portuguese/noticias/2015/09/150917_financiamento_campanha_stf_pai_ms.
[15] See Renan diz que veto ao financiamento privado de campanha não será votado nesta semana, Senado Federal (Sep. 29, 2015, 6:55 PM), http://www12.senado.gov.br/institucional/presidencia/noticia/renan-calheiros/renan-diz-que-veto-ao-financiamento-privado-de-campanha-nao-sera-votado-nesta-semana.
[16] See David Landau, Abusive Constitutionalism, 47 U.C. Davis L. Rev. 189 (2013).
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