Public Hearings convened by the Supreme Court to determine the constitutionality of electoral donations per legal person, the limit imposed on said donations, and use of donations during campaigning. The results had little obvious influence on the final vote in the legislature.
Problems and Purpose
Constitutional Courts are affected by the political environment that surrounds them (Friedman, 2009) and seek to be responsive to what circulates in the enlarged public sphere. In this context, the Public Hearings in the Federal Supreme Court (STF) emerge as an essential mechanism of socio-state interface aiming, on the one hand, that the members of the court widen their horizons of understanding, through the diverse perspectives exposed at the hearing; and, on the other, that society itself becomes more aware of the matter under discussion.
The 2013 Public Hearings on Campaign Financing were convoked by Minister Luiz Fux with the purpose of collecting information on the system of financing electoral campaigns and political parties then in force and, in this way, enabling the Constitutional Court's claim to democratic legitimacy and public representation.
Public input on three factors concerning campaign financing were to be addressed during the Public Hearings:
- the constitutionality of the donation per legal person,
- the limit imposed on the donation per individual, and
- the resources used by the candidates in their campaigns
The success of the Public Hearings can be threatened, in particular, by two factors: firstly, by the disinterest of the ministers in relation to the arguments presented at the hearing, which can be verified by the reading on their respective votes; secondly, the homogeneity of the positions of the participants, a fact that would not allow the ministers to have access to the different perspectives that exist in relation to the analyzed matter.
Background History and Context
The Public Hearing on the financing of electoral campaigns and political parties had as background the Direct Action of unconstitutionality (ADI) 4650 / DF filed by the Federal Council of the Brazilian Bar Association (OAB).
In summary, this action was proposed against some of the provisions of Law No. 9,504 / 97 (Law on Elections) and Law 9,096 / 95 (Organic Law on Political Parties) that: 1) allowed financial donations by legal entities to electoral campaigns and to political parties; 2) imposed on physical persons a limit of donation to electoral campaigns and political parties of 10% (ten percent) on the gross income received by the donor in the year prior to the election; 3) authorized the candidate to use his own resources in his campaign up to the limit of expenses envisaged by his political party.
Regarding donation by legal entity, it was argued that, in the first place, it generated political inequality, increasing the influence of the richest on the electoral result, that is, subjecting politics to economic power; secondly, that the fact that legal entities were not citizens implied their lack of legitimacy to participate in the electoral-political process.
Regarding the limit of donations by natural persons, it was alleged that this did not fulfill its role. In a word, the threshold based on a percentage of the donor's income in the year before the election was at the same time very tolerant of the richest and extremely strict with the poorest. For example, a citizen who earned 50 (fifty) million reais in the previous year could donate up to 5 (five) million reais, while another with a gross income of 15 (fifteen) thousand reais, could only donate 1,500 and five hundred) reais.
Finally, with regard to the use of own resources by the candidates in their electoral campaigns, it was suggested that the same reasoning applied against the ineffective limit of donation by individuals would be applied: the absence of nominal and modest limits would allow the richest advantage in the electoral contest.
Faced with these positions and understanding that the demarcation of the question demanded an interdisciplinary analysis of the matter, attentive to the economic, political and cultural factors, and not just legal, Minister Relator Luiz Fux called the Public Hearing, which was held on 17 and 24 of June 2013. Finally, we point out that this was the first and only public hearing convened to address this specific issue.
Organizing, Supporting, and Funding Entities
In general, there are three modalities of participation: (1) as part of the audience without any manifestation; (2) sending suggestions; and (3) as an exhibitor at the hearing, in which case prior registration and approval by the rapporteur is required. In the first case, the limit for participation is the capacity of the place of accomplishment  and the places are occupied in order of arrival, respecting the reservation to the exhibitors and the press. In the second case, it is accepted that any person or entity, regardless of registration, forward documents useful to clarify the issues to be discussed in the AP, either by print or electronic.  The third and most important case concerns the PA exhibitors, which are indicated by the parties to the process, by state bodies and entities and civil society entities or by interested parties that require their participation (qualified experts).
In total, 30 people participated as exhibitors of the Public Hearing on election campaign financing and political parties, among them, representatives of the Legislative Branch of the Union, social movements, professional associations, class entities and "experts", speaking in " own name ", based on their particular experiences.
Methods and Tools Used
The provision for the use of Public Hearings (PAs) by the Federal Supreme Court (STF) is stipulated under Law No. 9,868, of 1999 and Law 9882/99 - the first (law) regulates the Direct Unconstitutionality Action (ADI) and the Declaratory Action of Constitutionality (ADC) while the second deals with the Argument of Non-compliance of Basic Precept (ADPF). Thereby, the prevision of PAs realization was established in the scope of the exercise of focused constitutional control, by summoning of Court’s President or the process’s Rapporteur and with the participation of members of civil society, for the purpose of clarification of matter or circumstance in fact.
The Federal Supreme Court’s Internal Regiment (RISTF) in its art.13, subsections XVII and XVIII, predicts the possibility of convoke public audiences, by the Court’s President, to “listen the testimony of persons with experience and authority in particular matter, whenever he deem it necessary to clarify matters or circumstances in fact, with general public interest repercussion discussed in the court’’. It also disposes, in the sole paragraph, subsections II and III of art. 154, on the competence of the Minister-Rapporteur to convene a PA, stating that the participation of the different currents of opinion should be ensured and that the decision on the selection of persons to be heard should be on in response, disclosure of the list of qualified persons, determination of order of business, and the determination of the time that each will have to express himself. Finally, also by regulatory order (article 154, sole paragraph, IV to VII), it is expected that the public hearings will be transmitted by TV Justiça and Rádio Justiça, that the work of the public hearing will be registered and added to the records of the case, or filed under the Presidency, and that the missing cases will be resolved by the Minister who convenes the hearing.
Deliberation, Decisions, and Public Interaction
The format of the hearings makes them more like an argument than a proper debate. The public hearing under analysis followed this line, and no direct dialogue between the participants was observed.Nevertheless, there is some indirect exchange of ideas and exchange of information, since the participants involved already knew the main arguments of each other and seek to reinforce or question them with the presentation of other arguments and evidences. As an example, we quote Professor Daniel Sarmento who in his speech advanced some possible objections to his thesis, which were, in fact, raised by the following exhibitors; or the exhibitors Raimundo Cezar Brito Aragão, Eduardo Mendonça, Fernando Borges Mânica, among others, who made explicit statements to the statements of the other participants.
Influence, Outcomes, and Effects
In relation to the diversity of positions of the exhibitors of the Public Hearing, it is verified that this objective was satisfied. The subject under consideration generally allowed two opposing positions: (1) In favor of the constitutionality of the donation per legal person, the limit imposed on the donation per individual and the resources used by the candidates in their campaigns, that is to say, against ADI; 2) In favor of the unconstitutionality of the donation per legal entity, the limit imposed on the donation per individual and the resources used by the candidates in their campaigns, ie in ADI favor.
Analyzing the arguments presented by the exhibitors, it is noted that 8 (eight) defended the first position and 10 (ten) argued in favor of the second, so that it can be recognized that there was a reasonable balance between the positions. In addition, it was still possible to observe exhibitors defending exclusive public funding or, even simply exposing some data without explicitly positioning itself in favor or against ADI.
On the other hand, analyzed the Judgment of ADI 4650 it is noticed that the arguments presented by the exhibitors in the Public Hearing had little influence on the vote of the ministers. The only one to refer explicitly and to use the arguments presented at the hearing was Deputy Minister Luiz Fux, who also presided over it. Perhaps in part this is a consequence of the fact that this minister was the only one who attended the hearing.
However, although the Minister has used some of the arguments raised at the Public Hearing, it is questionable to what extent they have effectively influenced his vote or have served only as a way of legitimizing a "pre-decision", ie a decision already taken beforehand.
Regarding the (in) constitutionality of the donation to electoral campaigns and political parties by legal entities, Minister Luiz Fux cited only the statements of the exhibitors Daniel Sarmento and Geraldo Tadeu, both of which supported his decision to declare the practice unconstitutional. However, he was silent regarding the arguments of the other exhibitors that contradicted his position.
In addition, as regards (in) the constitutionality of limits on donations made by individuals or the use of own resources by the candidates in their campaigns, Minister Luiz Fux did not use any arguments from the Public Hearing, even those cited Daniel Sarmento and Geraldo Tadeu.
Analysis and Lessons Learned
The purpose of the Public Hearing, as stated above, could be threatened by two factors: first, by the disinterest of the ministers in relation to the arguments presented at the hearing; second, by the homogeneity of the participants' positions. However, despite the plurality of positions presented at the Public Hearing, it was observed that the ministers, in general, did not use the arguments presented by the exhibitors. As already mentioned, in the first place, only the Rapporteur Minister, in fact, made use of a few arguments presented at the hearing. Secondly, it should be noted that the minister limited itself into only using the arguments that supported his thesis, silencing in relation to the others that conflicted with his position. In view of the foregoing, it can be concluded that the objective of the Public Hearing of Campaign Financing to promote an informational gain to the ministers, guaranteeing a better informed and more legitimate judicial decision, was not reached in its entirety.