Corporate Campaign Contributions in Brazil: Of Courts, Congresses, and the Agendas of Individual Justices

—Juliano Zaiden Benvindo, University of Brasilia

Debates over the relationship between Congress and the Judiciary are quite common in the comparative constitutional literature, especially in the current scenario of rising activism of constitutional courts worldwide. Particularly interesting is to observe how Supreme Courts and Parliaments negotiate the pace of their decisions, sometimes in a symbiotic manner, in order to obtain mutual advantages.[1] However, the literature has mostly focused on institutions rather than on the people behind those institutions. By shifting focus to these people, those interactions become even more complex.

Brazil offers a fascinating recent example. On May 27, 2015, the Chamber of Deputies in Brazil, after a maneuver led by its President, Deputy Eduardo Cunha, approved, in first reading, a controversial proposal for constitutional amendment. This amendment, if approved in a second reading of the Chamber of Deputies and two readings in the Senate, would alter the constitutional text to explicitly authorize corporate donations to fund political campaigns.[2] The unusual element of the proposed amendment is that it is an attempt not to reverse a completed judicial decision, but to anticipate and overturn a decision before it has even been issued.

In September 2011, the Brazilian Bar Association filed a Direct Action of Unconstitutionality against some articles of the laws on financing political parties and campaigns, based on the argument that corporate donations further inequality to the detriment of the citizens.[3] The case, due to its relevance, was subject to an ample discussion in public hearings with scholars, political parties, civil society organizations, among other amici curiae.[4] In the public hearings held in December 2013 and April 2014, a majority of the eleven justices declared their opinion that those articles were unconstitutional, thus seemingly dooming them.[5] However, in a rather unusual move in the public hearing of April 2, 2014, the case was suspended after one of its Justices, Gilmar Mendes, requested more time to study the case.[6] Notwithstanding that the majority of the Court had already held corporate donations unconstitutional, once Justice Gilmar Mendes requested an adjournment, the Court could not deliver its opinion, and the matter has remained unresolved.

In the meantime, after the new legislature initiated its activities last February and in the middle of a so-called “political reform,” the matter reappeared, but now as a movement of the Chamber of Deputies aimed at blocking that Supreme Court’s foreseeable decision. The proposed constitutional amendment introduced on May 27, 2015[7] seemed to be a clear reaction against the Supreme Court’s ongoing deliberations and will possibly push the Justices to reconsider their opinions. Their arguments, after all, were based on the previous constitutional framework. Justice Mendes has acknowledged this point by stating that if Congress passes the constitutional amendment, “the prohibition on private financing under discussion will be affected.”[8] Similarly, Justice Dias Toffoli mentioned that “it is prudent to await deliberation on this subject by Congress.”[9]

But all of this raises an important problem: in this case, a single justice is manipulating the pace of the constitutional agenda and the “timing” of constitutional change. Indeed, Justice Gilmar Mendes has already, in different opportunities, suggested that he does not agree with the majority of the Court. In a conference in São Paulo, he stated that “this is a complex subject, and maybe we are giving a very simple answer. We have to know what Congress has been discussing, which electoral model that is, in order to know the adequate model for financing it.”[10] He also mentioned that his colleagues’ opinions could change.[11] In an interview for the newspaper Estado de S. Paulo, he clarified his purpose in requesting the suspension: “To have requested time to examine this matter was important, because now we have better knowledge of it than we had at that time…. We were maybe making a decision in such a symbolic and emotional way…. We will have [now] a much more qualified debate over this matter”[12].

It is no surprise that Justice Gilmar Mendes’ strategy was harshly criticized by different sectors of society. Some have called him “the guardian of the corporate campaign donation[13]” rather than the constitution, while others have claimed that he “disrespects his peers and Brazilian society” by having delayed the case for over one year.[14] Indeed, Justice Gilmar Mendes’ own words suggest that his suspension was designed to manipulate the constitutional landscape rather than to study the issue more carefully. In his view, his colleagues were making a “symbolic and emotional” decision without full knowledge of all the circumstances. If he could not win the case by playing the rules of the game, that is, by expressing his dissenting opinion, the only remaining solution was to call for an adjournment and await the proposed congressional action.

The Brazilian example demonstrates that not only courts but also their individual justices can adopt different strategies to determine the pace of the constitutional agenda and the “timing” of constitutional change. These interactions go both ways, however. The example also shows how parliaments can adopt distinct strategies to influence judicial behavior. The possibility of amending the constitution to influence and alter an ongoing Supreme Court decision is an extreme but interesting manifestation of the various ways in which legislatures can impact judicial decision-making.

The example discussed above is just one among many in Brazil, and the strategies adopted by both Justice Mendes and the Brazilian Congress are also just several options in a much larger toolkit.[15] There is too little work examining these different strategies and their implications for institutional design. In particular, the question of individual justices manipulating the constitutional agenda raises troubling questions.  After all, we cannot be naïve to the point of believing that Supreme Courts act merely as an institution rather than to advance individual political agendas.

Suggested citation: 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/

[1] One well-known example is where parliament transfers an issue to the supreme court in order to avoid the burden on politicians of a genuine political disagreement which could affect them in the following elections, while increasing the political power of constitutional courts.

[2] According to article 60, paragraph 2, of the Brazilian Federal Constitution: “The proposal shall be discussed and voted upon in each House of the National Congress, in two readings, and it shall be considered approved if it obtains, in both readings, three-fifths of the votes of the respective members.”

[3] The Direct Action of Unconstitutionality is an action directly filed before the Supreme Court in the system of centralized judicial review (Brazil has also the diffuse system of judicial review, which has some similarity to the one in United States). The case is ADI 4650 and the laws whose constitutionality are under review are Laws n. 9096/1995 and n. 9504/1997.

[4] The public hearings with these amici curiae were held in June 2013.

[5] In Brazil, all Supreme Court processes are public and can be accessed while the deliberation is still taking place. In fact, many of the Supreme Court’s deliberations are broadcast nationwide by a TV channel.

[6] According to the internal rules of the Brazilian Supreme Court, after a request for adjournment in such circumstances, the Justice has 10 days to bring the case back to the Court. There is an automatic adjournment of 10 more days, after which any additional adjournments must be specially justified. The maximum authorized period is one month. However, this deadline has been commonly disobeyed. For more information on the practice, see the excellent research Supremo em Números., available at: http://www.fgv.br/supremoemnumeros/ (Last Accessed: June 15, 2015).

[7] Agglutinative Amendment n. 28 to the Proposal for Constitutional Amendment n. 182/2007.

[8] Gilmar Mendes. Entrevista Gilmar Mendes. Estado de S. Paulo. June 1, 2015, available at: http://politica.estadao.com.br/noticias/geral,reforma-nao-pode-institucionalizar-o-caixa-2-diz-gilmar-imp-,1697901 (Last Accessed: June 13, 2015).

[9] Toffoli recomenda aguardar decisão sobre financiamento de campanhas. Valor Econômico June 1, 2015, available at: http://www.valor.com.br/politica/4076494/toffoli-recomenda-cautela-ao-stf-sobre-financiamento-de-campanha.(Last Accessed: June 13, 2015).

[10] Fernanda Cruz. Gilmar Mendes diz que só vota financiamento privado após reforma política. EBC, available at: http://www.ebc.com.br/noticias/politica/2015/04/gilmar-mendes-diz-que-so-vota-financiamento-privado-apos-reforma-politica(Last Accessed: June 14, 2015).

[11] Id.

[12] Gilmar Mendes. Entrevista Gilmar Mendes. Estado de S. Paulo. June 1, 2015, available at: http://politica.estadao.com.br/noticias/geral,reforma-nao-pode-institucionalizar-o-caixa-2-diz-gilmar-imp-,1697901 (Last Accessed: June 14, 2015).

[13] Deputy Ivan Valente . Gilmar Mendes: o guardião das doações empresariais de campanha, available at: http://www.ivanvalente.com.br/gilmar-mendes-o-guardiao-das-doacoes-empresariais-de-campanha/(last accessed: June 13, 2015).

[14] Deputy Wadith Damous. See Eduardo Maretti’Gilmar Mendes fala muito, desrespeita seus pares e a sociedade’, afirma deputado RBA, available at: http://www.redebrasilatual.com.br/politica/2015/06/201cgilmar-mendes-fala-muito-desrespeita-seus-pares-e-a-sociedade201d-afirma-deputado-1107.html (Last Accessed: June 14, 2015).

[15] In Brazil, the rapporteur determines when a case will be decided by the Court; the Chief Justice can also determine when a case will be decided by the Court; and every Justice has the right to call for an adjournment in order to study a case more carefully, as has happened in this example.