Opinion: Brazil’s Electoral Reform, Part IV

Opinion, by Michael Royster

RIO DE JANEIRO, BRAZIL – Another controversial measure about to be introduced into the “political reform” bill is the “barrier clause” or, as its proponents prefer, the “performance clause”. Its purpose is to reduce the number of political parties in Congress.

The proposed constitutional amendment just approved by a committee in the Chamber of Deputies requires at least 1.5 percent of the total vote, although the proposal has it rising to three percent by 2030.

Moreover, the clause does not prohibit representation for parties not reaching the threshold, it simply cuts off financing for “minnow” political parties. Nevertheless, the threshold eventually enacted will probably be sufficiently low to ensure that there are at least a dozen parties represented in Congress—too many, but much better than the 26 now there, so not to be complained of.

Together with the performance clause, the bill will, finally, outlaw the forming of electoral “coalitions”, where several parties join together to have all their votes counted in the allocation of seats. These coalitions vary cynically from state to state, with sworn political enemies becoming bedfellows for one election only. One of the functions of the coalitions has been to permit the election of politicians from the “minnow” parties, and these will presumably disappear.

But of course, the many political parties that now depend upon coalitions and the absence of a barrier clause to ensure representation in Congress and access to public funding, will be seeking to undermine these provisions as well. These minnow parties include some ideologically left-wing parties such as PSOL, PCdoB and PV. They all resist being drawn into the maw of PT, the only mass party with leftward leanings and enough votes to pass the barrier.

The proposed amendment includes a clause which permits parties to form “federations”, which are similar to coalitions but are supposed to be ideologically coherent, and valid nationwide rather than locally.

In other words, “federation” ABCD made up of 4 parties cannot, in certain state elections, become “federation” ACDE. It remains to be seen whether the full Chamber will pass this measure without further diluting the requirements for election.

Additionally, there is a similar Amendment now before the Brazilian Senate. It calls for a two percent barrier clause in 2018, rising to three percent in 2026. In order for a proposed Amendment to be passed, it must receive sixty percent of the total number of Deputies and Senators, with two votes in both houses.

At the moment no one knows whether agreement by both houses will be possible by the first week of October deadline, one year before the first round of the 2018 federal and state elections.

And, finally, just to complicate things a little, the Brazilian Supreme Court, in 2006, declared unconstitutional a “barrier” clause enacted by a federal statute, as it limited the freedom of parties to organize and compete in elections.

Since the new clause will be included in a constitutional amendment, not a mere statute, it seems likely the STF will approve it. But one never knows.