Letter to Brazilian women, electoral observation and public money

August 11, 2022 went down in history, when the Letter to Brazilians with the slogan “Always Democracy!” was read, organized by the Board of the USP Law School, professors Celso Campilongo and Ana Elisa Bechara, who already has about 1.1 million signatures. This act was performed in the Arcadas, in Largo São Francisco, in São Paulo, and replicated throughout Brazil. And now, what are the next steps?

I think it is to closely observe the elections, as established by the Public Call Notice of TSE 01/22, through which eight institutions were accredited to carry out Electoral Observation Missions, including the University of São Paulo (USP).

It is the first time that the TSE regulates National Electoral Observation Missions (Resolution 23,678/21), which will play a very important role in monitoring and analyzing the electoral dispute. The Observation Missions have the duty to monitor the elections and, at the end, present a report that will support the decision-making for future elections, based on the mistakes and successes that are identified in the current event. It is true that the reports, opinions and conclusions of election observers cannot have legal effects on the validity of the ongoing electoral process and its results (Article 27 of Resolution 23678/21). What is sought is a look to the future from the current dispute, seeking to improve Brazilian democracy.

It should be noted that for the TSE to “observe” is not to “inspect and audit the electronic voting system”, an activity regulated by another rule (Resolution 23,673/21), which is incumbent on political parties, OAB, Armed Forces and other actors equally (article 6), with an active role in all stages of the lawsuit.

The redoubled care with which the TSE has been conducting the 2022 elections is praised, reinforcing “inspection and auditing” and expanding “observation”, which shows special concern for the transparency of the process and respect for the will of the population. Congratulations to the TSE team, represented by Ministers Roberto Barroso and Edson Fachin, for the careful management of all this activity until the present moment, which will certainly be maintained by Ministers Alexandre de Moraes and Ricardo Lewandowski who assume the Presidency.

In the scope of the Observation Missions, there is a lot to be done, including the voting day (queues, violence, organization, electronic voting machines, etc.) until the monitoring of the appeals that are brought before the TSE, putting in check the dispute that took place.

As Lucas S. Grosman put it precisely: “The electoral process is the archetype of competition: it is organized around the idea of ​​winners and losers, and the resource it shares is nothing less than political power, the power to lead the State”.[1] After all, whoever has political power has power over the rights and money to be distributed to the population through public policies, that is, to decide who should receive the goods and rights distributed by the State and who should pay for them, and with what priority.

In the legal sphere, the principle of legality is idolized and it is emphasized that it is necessary to obey the law, but it is not analyzed with due attention how people have access to the Legislative Power, which produces the law. As a rule, oligarchic laws come from oligarchic legislators; and this demonstrates the relevance of electoral law, essential to democracy, in which everyone is formally entitled to only one vote per head.

For my part, I am particularly concerned about the financing of the electoral process.

In present-day Brazil, the following are permitted: (1) private funding of candidacies, provided that (1.a) they are donated by individuals; (1.b) through funding by the candidates themselves (1.c) or through the sale of goods (T-shirts, brooches, etc.) and holding of events. As a rule, (2) the funding comes from public money, (2.a) either through the Party Fund, through which they receive funds from the National Treasury to fund their party activities; (2.b) or as a result of the Special Fund for Campaign Financing (FEFC), through which the National Treasury contributes amounts to finance candidacies. Funding by legal entities is expressly prohibited. In any case, there are spending limits for each campaign.

This concern with what I call Electoral Financial Law is very important and part of the Principle of Parity of Arms (republican isonomy), because, as stated by the STF Minister, Dias Toffoli, in the judgment of ADI 4,650: “Without the census vote, without the halter vote, it was left to the economic forces of the country to act in the financing of the campaigns”. Or, in the summary then proclaimed by the retired Minister of the STF, Marco Aurélio: “Money takes the place of the voter”.

In this sense, the role that the Observation Missions have transcends the current election, as they aim to collaborate with Brazilian democracy in several aspects, including the correct and adequate use of public resources for the result of the election.

[1] GROSMAN, Lucas S. Escasez and Equality – Social Derechos en la Constitución. Buenos Aires: Libraria, 2008. p. 85. 3

Fernando Facury Scaff is a professor of Financial Law at the University of São Paulo (USP), a lawyer and partner at Silveira, Athias, Soriano de Mello, Bentes, Lobato & Scaff Advogados.

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