Money in Electoral Campaigns: The Relationship between Money and Politics as a Cause of the Judicialization of Electoral Processes in Brazil

Abstract

The electoral court is a specialized branch of the Brazilian judiciary that not only organizes and regulates elections in the country but also resolves conflicts between political actors involved in the electoral process. The (mis)use of money in electoral campaigns is one of the causes of the judicialization of electoral processes in Brazil. In fact, among many other reasons, such judicialization can occur when actors in the electoral process (candidates, parties, and party coalitions) are accused, either by their opponents and/or by the Electoral Public Prosecutor’s Office, of irregularities such as abuse of economic power, illegal fundraising or expenditure of electoral resources, electoral corruption, or falsification of the campaign’s accounting records. Through the study of electoral lawsuits filed between 2008 and 2016 against mayoral candidates, this work has two objectives: (i) to dimension the importance of the relationship between money and politics as a cause of the judicialization of electoral processes in Brazilian local elections and (ii) to characterize the candidates that appear as defendants in electoral lawsuits filed by that cause.

1. Introduction

The unlawful relationship between money and politics—and, more specifically, the issue of illicit electoral financing—has been at the center of major corruption scandals that have recently occurred in Brazil and has brought to the fore a central institution in the democratic process whose task is to ensure the fairness of the political competition process: the electoral justice system.

The electoral justice system is a branch of the Brazilian judiciary that is formed by three levels: the electoral justices, the Regional Electoral Courts (TREs), and the Superior Electoral Court (TSE). Among several other attributions, it is the role of the electoral justice system to settle electoral litigations, including those generated by accusations of an illicit relationship between money and politics. Therefore, this branch of the judiciary is called to act in cases of “judicialization of electoral competition,” understood as the “mobilization of institutions of the justice system, especially the Electoral Public Prosecutor’s Office (MPE) and the Electoral Justice System (JE), to question the process and the results of the electoral dispute” (Mancuso et al. 2021).

The judicialization of electoral competition follows a global trend of institutional and political expansion of the judiciary (Ginsburg 2003; Hirschl 2007; Stone Sweet 2000; Tate and Vallinder 1997). While we know that “courts are often called upon to decide on issues such as political party funding, campaign financing, electoral advertising, redrawing electoral districts, approving or disqualifying political parties or candidates” (Hirschl 2011, p. 260), the literature discussing the topic, particularly from a comparative perspective (Kapiszewski and Taylor 2008; Nkansah 2016), is not extensive.

The present article aims to expand the knowledge about the judicialization of the electoral process, studying it with a focus on electoral lawsuits related to the financing of electoral campaigns. Our object of analysis is the judicialization of electoral competition in the 2008, 2012, and 2016 municipal elections. More specifically, we analyze the relationship between money and politics as a factor inducing the judicialization of electoral competition in Brazilian mayoral elections that were held in the years above. To analyze this object, we conducted quantitative research by surveying and analyzing electoral lawsuits related to those three elections and provoked by the relationship between money and politics. This data allowed us to analyze the use of the electoral justice system to contest the process and/or the outcome of the political game—i.e., the judicialization of electoral competition at the local level.

This article is structured in four parts, in addition to this introduction. In the next section, we discuss the topic of the judicialization of electoral competition, situating the debate within the literature. Next, we present our research questions, the procedures adopted to collect and organize our data, and the methods employed to analyze them. In the following section, we present and discuss the results. We conclude by summarizing the main findings and suggesting ways to further study this subject.

2. Litigation in Elections and the Judicialization of Politics in Brazil

2.1. From the Judicialization of Politics to Litigation in Elections

The theme of the judicialization of politics is widespread, both in academia and in public discussions, and has been intensively explored by political scientists. Not only has it become one of the great political phenomena of the late 20th and early 21st centuries, but it has also become more complex, according to Hirschl (2008, 2011), broadening the spectrum of issues affected by judicial interference. Within this broader theme, the discussion on the judicialization of political disputes, involving both the electoral process and political representation, has gained relevance due to authoritarian threats, accompanied by attacks on the electoral process.

2.2. The Focus on the Political Dispute

Several authors have systematized the literature on the judicialization of the political process in Latin America and Brazil. Kapiszewski and Taylor’s (2008) review of more than 200 publications on the judicialization of politics in Latin America shows the range of topics addressed, research questions, and methodological approaches employed. The thematic areas of the interaction between the judiciary and politics encompass the recognition of individual rights vis-à-vis the state, the influence of judicial decisions on public policies, and the influence of judicial decisions on the system of political representation. The discussion about courts as policymakers in the areas of education and health has received ample attention from researchers to the detriment of the role of the judiciary in the redesign of the polity, which comprises the basic rules of competition for political power. The judicialization of the polity focuses on judicial decisions in the electoral process, on the functioning of parliament, on the removal of parliamentarians and governors from office, and also on the legal accountability of governors and high officials for their actions. Our topic of the judicialization of electoral processes is situated in this thematic field. A review of the literature by Paranhos et al. (2014) shows the scarcity of papers on the topic. The authors found only 10 articles related to the theme of the judicialization of electoral processes in Brazil. Our contribution adds to these efforts to analyze the judicialization of electoral processes. But the topics covered by the judicialization of the electoral process are still quite diverse. Further clarification is necessary to narrow down where our contribution adds to the discussion.

The concept of “judicialization of the electoral process” encompasses three separate phenomena. The first dimension concerns electoral governance. Authors like Mozaffar and Schedler (2002) analyze and compare the institutional framework created to organize electoral competition. In many countries, especially pertaining to the third wave of democratization, the judiciary is in charge of organizing the electoral process, which represents one facet of the phenomenon of the judicialization of elections. While there has been significant contribution to the discussion from Latin America, covering the case of Mexico (Berruecos 2003) and Brazil (Marchetti 2008), our research covers the question of institutional arrangements to organize elections only indirectly. The second dimension encompasses the issue of judicial review of the system of political representation. It refers to the questioning of the constitutionality of laws or administrative acts that regulate elections, the functioning of the legislature, or the mandates of representatives and governors. The competence of the judiciary to review and eventually annul acts by the government or laws passed by the legislative in the name of conformity to the constitution constitutes one of the important dimensions of the judicialization of politics and has received extensive attention in the academic literature (Kapiszewski and Taylor 2008). In the case of Brazil, the judiciary’s decisions on issues of political representation have raised broad public debate about judicial activism in this area. Several authors have analyzed the important decisions of both the electoral courts and the Supreme Court in shaping the political dispute and, more specifically, the electoral process (Marchetti and Cortez 2009; Rodrigues 2019; Brandão 2013). Again, our research does not cover judicial review. The third dimension of judicialization concerns the phenomenon of the mobilization of the judiciary to settle litigations involving the different stages of political representation, beginning with elections up to the holding of mandates. A multiplication of cases of activation of the judiciary by different political actors to enforce their rights, but also to maximize the defense of their interests in all available channels, is observed. As the electoral justice system gains credibility, it is activated by different actors who demand the enforcement of the law. This latter phenomenon of the proliferation of electoral litigations has only recently begun to be explored in the literature. Our research contributes to this dimension of judicialization as electoral litigation.

2.3. Litigation in Electoral Processes

At the stage of enforcing the rules of electoral competition, it falls to the judiciary to arbitrate conflicts and define electoral results when there is a legal questioning of the electoral process. Litigation before the electoral courts to enforce rights, rules, or principles of the political contest is part of the judicialization of politics. The scarce works on the subject explore several directions. On the one hand, they analyze the relationship between judicial litigation and the use of violence in the electoral process. Research shows that the institutionalization of the electoral justice system transforms it into the main avenue for challenging illegalities, overcoming or lessening the use of violent strategies for conflict resolution. The decrease in the use of physical violence for dispute resolution was one of the aspects related to the improvement of democracy and the institutionalization of an electoral justice system in African countries that have undergone recent democratization processes (Nkansah 2016, p. 97). In this same vein, Eisenstadt (2002) demonstrated that there was a dramatic decrease in street protests and violent events in post-election conflicts starting in the second half of the 1990s in Mexico when opposition parties began to rely on electoral courts for the resolution of disputes over the poll results. Analyzing the case of Nigeria, Omotola (2010) suggests that the lack of independence and credibility of the administration of the electoral process explains the continued presence of violence in recent elections in the country.

In the case of Brazil, contributions to the analysis of electoral litigation are still sparse. Besides the fact that Brazil faces the increasing use of violence in the electoral process,1 it is not the principal aspect that litigation before electoral courts is dealing with. Thus, other issues are a more common target of worry. The main themes range from the registration of candidacies to the diplomation of the elected to the questioning of the fairness of the electoral process. A paper by Marchetti (2014) analyzes the process of candidacy registration by the electoral courts in Brazil and the decisions to annul candidacies. They originate from decisions of the electoral courts themselves, from the Electoral Prosecutor’s Office, or from complaints from competing candidates. The author analyzes the frequency of candidates’ disqualifications along several dimensions. He does not identify a bias in the regional distribution (which validates the impartiality of the institution), but he perceives an overrepresentation of mayoral candidacies among those that were impugned and a high rate of reversal of the impugnations in the decisions by the TREs (35%) and TSE (44%). Shirado (2009) discusses the same issue of candidate registration from the point of view of legal dogmatics.

Once the electoral dispute begins, an important issue of litigation concerns the use of free allocated time on radio and TV for political parties during electoral campaigns. Because of the importance of this resource, the actors defend their interests by resorting to the established rules. One possibility is the activation of electoral courts to suspend abusive content (for example: offenses and fake news) and/or to obtain the right of reply. Steibel (2007) analyzes the right of reply, highlighting the peculiarity of the Brazilian case, which attributes to the electoral court the power to identify and correct abusive content, and the tradition of the United States that does not recognize limits to freedom of expression. However, the text does not empirically analyze the use of this resource by candidates in elections. Another theme of electoral litigation involves the issue of campaign financing. Barboza (2015) analyzes the strategic use of lawsuits filed against candidates who abuse their economic power in municipal elections in Brazil. As regards the litigation directed at political representation, we should mention Zauli’s study on the role of the judiciary in relation to the operation of parliamentary committees of inquiry (Zauli 2011) or even the issue of the entitlement to the elective mandate in the case of parliamentarians who have left their party (Shirado 2007). Also fitting in this same category are not only papers on litigation involving elected representatives, such as cases against members of the political elite but also works on the judicial cassation of mayors (Pessoa 2019; Silva 2016; Zalamena 2013).

The central theme of our research is the adjudication of existing laws and norms by the electoral justice system, provoked by the initiative of different actors, namely the electoral prosecutor’s office or the parties and coalitions involved. We focus on cases involving the relationship between money and politics as a cause of the judicialization of electoral processes. We have not identified similar studies covering electoral litigation on this topic in the current literature.

3. Research Questions, Data, and Methods

The two central questions of this paper are the following:

(i)

How many mayoral candidates were sued in the electoral justice system because of the relationship between money and politics in the 2008, 2012, and 2016 municipal elections?

(ii)

What is the profile of these candidates?

Our database is made up of electoral lawsuits filed against candidates for mayor in these three elections.2 These lawsuits may have been filed by the MPE or by opponents (candidates, parties, and/or party coalitions). The database covers two classes of lawsuits (actions of electoral judicial investigation—AIJEs and representations—REPs)3 that were motivated by one or more of the following issues concerning the relationship between money and politics, namely:4

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Abuse of economic power in elections:

The Brazilian Constitution establishes that the normality and legitimacy of elections must be protected against the influence of economic power (art. 14 § 9). The “Brazilian Electoral Glossary”, available on the TSE website, defines abuse of economic power as the “excessive use, before or during the election campaign, of material or human resources that have an economic value, seeking to benefit a candidate, party, or party coalition, thus affecting the normality and legitimacy of the elections”.5 In line with the national legal system, authors such as Salgado (2009) and Agra (2013) conceptualize the abuse of economic power, in electoral matters, as the exacerbated use of economic power, exceeding what is allowed by law, damaging the normality and legitimacy of the election.

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Illegal fundraising or expenditure of campaign funds:

This involves irregularities in the collection or application of electoral resources. With regard to fundraising, the irregularity consists of obtaining resources from prohibited sources (Article 24 of Law N. 9.504/1997—the Elections Law) or obtaining them in an improper manner (for example, without duly declaring them to the electoral justice system), even if the source is permitted. As for the illegal expenditure of funds, the irregularity consists in disregarding the rules governing the use of funds raised for electoral campaigns, for example, making expenditures prohibited by the electoral legislation6 (Barcelos 2015; Nogueira 2019).

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Electoral corruption:

Electoral corruption is prohibited by Article 299 of Law N. 4.737/1965—the Electoral Code. This article establishes as an electoral crime the behavior of “giving, offering, promising, soliciting or receiving, for oneself or another, money, gift, or any other advantage, to obtain or give a vote and to obtain or promise electoral abstention, even if the offer is not accepted”.

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Electoral fraud:

Electoral fraud encompasses a varied set of irregular conducts, including receiving “slush funds”, which occurs when the political agent (candidate, party, or party coalition) presents a false statement to the electoral justice system with regard to the rendering of campaign accounts, omitting any collected resources.

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Illegal obtaining of votes:

This practice is defined by Article 41-A of Law N. 9.504/97: “to donate, offer, promise, or deliver, to the voter, in order to obtain his vote, goods or personal advantage of any nature, including employment or public function, from the registration of the candidacy until the election day”.

We propose a logistic regression model whose dependent variable is whether or not the candidate is a defendant in an electoral lawsuit motivated by the relationship between money and politics. It is, therefore, a binary dependent variable, which will assume the value 1 if the mayoral candidate is a defendant in any lawsuit of this type, and the value 0 otherwise.

Table 1. Explanatory variables.

EXPLANATORY VARIABLES	INDICATORS	OPERATIONALIZATION
ELECTORAL PERFORMANCE—REAL OR EXPECTED (TSE)	Running for re-election?	Dummy (1 = yes; 0 = no)
	Proportion of votes obtained in the first round	Continuous, from 0 to 100
	Did the candidate win the election?	Dummy (1 = yes; 0 = no)
PARTY IDEOLOGY (PLB)	Right	Dummy (1 = yes; 0 = no) Reference category.
	Center	Dummy (1 = yes; 0 = no)
	Left	Dummy (1 = yes; 0 = no)
CAMPAIGN FINANCE (TSE)	Amount of campaign funds raised by the candidate	Continuous, from 0 to the maximum
ASSETS (TSE)	Candidate’s personal wealth	Continuous, from 0 to the maximum
CHARACTERISTICS OF THE MUNICIPALITY (FIRJAN AND TSE)	FIRJAN’s Index of Municipal Development	Continuous, from 0 to 1
	Electorate size	Continuous, from the minimum to the maximum
YEAR OF THE ELECTION	Year in which the election took place	Three dummies. 2008 is the reference category.

Sources: TSE, PLB, and FIRJAN.

below presents the explanatory variables included in the model:

The explanatory variables cover six elements: first, the candidates’ electoral performance. To measure this variable, we will use three indicators: whether the mayoral candidate is running for reelection (dummy variable with the value 1 if they are, and 0 if they are not), the proportion of votes received by the candidate in the first round (continuous variable between 0 and 100), and whether the candidate was elected (dummy variable with value 1 if they won the election, and 0 otherwise). Our first hypothesis is that candidates with better electoral performance, or at least with better expectations of electoral performance (in the case of candidates running for reelection), are more likely to be sued. This does not necessarily mean that more competitive candidates are more likely to be involved in irregularities regarding money and politics. Rather, it suggests that these candidates tend to be more targeted by the actors capable of filing electoral lawsuits, such as their opponents and the MPE.

The second explanatory variable of the model is the ideology of the candidate’s party. The classification of parties into ideological groups is based on information from the Brazilian Legislative Survey (PLB) conducted by political scientists Timothy Power and Cesar Zucco Jr. with Brazilian congresspersons.7 We always use the surveys conducted on the date closest to each of the three elections. From the researchers’ estimates for each party, we conducted a cluster analysis and identified three groups of parties, which we classified as left, center, and right. We created three dummy variables, one for each ideological block. Right-wing candidates form the reference group. Our second hypothesis is that right-wing candidates are more likely to be sued, probably because of the larger number of political parties and candidates with this ideological profile in Brazil.8

The third explanatory variable is the total campaign revenue reported by candidates, a continuous variable ranging from 0 to the maximum amount reported. Our third hypothesis is that there is a positive and significant correlation between the amount of campaign funds raised by a candidate and the chance of being sued for reasons related to the relationship between money and politics.

The fourth explanatory variable is the value of assets declared by the candidates at the time of registering their candidacies, a continuous variable ranging from 0 to the maximum value declared. Our fourth hypothesis is that wealthier candidates are more likely to be sued for the reasons analyzed in this paper.

The fifth explanatory variable consists of characteristics of the municipality where the mayoral election took place. The first indicator is the FIRJAN’s Index of Municipal Development (IFDM), a continuous index situated between 0 and 1 that measures the socioeconomic development of Brazilian municipalities based on official public statistics in the areas of education, health, employment, and income.9 Municipalities with an SDMI closer to 1 are more developed. The second indicator is the size of the electorate in each municipality in the three elections, according to information made available by the TSE. Our fifth hypothesis is that the incidence of electoral lawsuits motivated by the relationship between money and politics tends to be higher against mayoral candidates from smaller and less developed municipalities. Finally, the last variable indicates the year in which the election took place. Three dummies were created, one for each election year. The 2008 election is the comparative reference election in the model. Our sixth hypothesis is that the incidence of electoral lawsuits against mayoral candidates over money–politics issues tends to be higher in more recent elections, because of the increased attention to such issues in local elections.

The results are presented and analyzed in the following section.

4. Results and Discussion

In the three municipal elections held in Brazil between 2008 and 2016, there were a total of 48,087 mayoral candidacies, distributed among the 5568 municipalities that hold elections for the head of the local executive branch every four years. Of this total, 4331 (9%) were sued at least once for one of the reasons mentioned in the previous section, linked to the relationship between money and politics. For comparison, in the same period there were a total of 1,263,438 candidacies for city councilor, and, of this total, only 3595 candidacies (0.3%) were sued at least once for one of the same reasons. That is, the chance of a mayoral candidate being sued is 32.1 times greater than that of a councilor candidate.

Table 2. Chance of being sued in the mayoral election (2008–2016).10

	B	SE	Hypothesis Test			Exp (B)
			Wald’s Chi-Square	DF	Sig.
Running for re-election?	0.458	0.043	112.247	1	0.000	1.581
% votes—first round	0.012	0.001	98.801	1	0.000	1.012
Elected?	0.640	0.047	182.970	1	0.000	1.897
Center	0.043	0.046	0.903	1	0.342	1.044
Left	−0.120	0.056	4.523	1	0.033	0.887
Campaign finance (by 100,000 reais)	0.031	0.004	61.415	1	0.000	1.031
Assets (by 10,000,000 reais)	0.000	0.000	3.409	1	0.065	1.000
IFDM	−0.233	0.161	2.090	1	0.148	0.792
Electorate (by 10,000 voters)	−0.003	0.001	6.484	1	0.011	0.997
2012	1.369	0.056	586.898	1	0.000	3.930
2016	0.896	0.059	228.822	1	0.000	2.450
Constant	−3.858	0.119	1046.097	1	0.000	0.021

Chi-square test: 1988.706, degrees of freedom: 11, and Sig.: 0.000. Sources: TSE, PLB, and FIRJAN. Bold and italics are used to indicate statistically significant associations.

contains the results of the logistic regression. Statistically significant associations (p-value ≤ 0.1) appear in bold and slanted font. Our model includes only 38,525 mayoral candidates, of whom 3873 (10.1%) were sued. The total number of candidates, as well as the number of sued ones, is lower than that presented in the paragraph above because the sources we searched for information, according to Table 1, do not provide this information for some of the 48,087 candidacies, thus generating 9562 missing cases (19.9%).

All three indicators of electoral performance (expected or real) are positively and significantly associated with the dependent variable. The chance of a re-election candidate being sued is, on average, 58.1% greater than that of the others. The winning candidate has, on average, an 89.7% greater chance than the defeated ones of being sued. Moreover, for every percentage point of valid votes received in the first round by a mayoral candidate, the average chance of being sued increases by 1.2%. Thus, there is empirical evidence in favor of our first hypothesis: more competitive candidates (or at least candidates most likely to be competitive) tend to be more targeted by political actors (MPE, candidates, parties, and party coalitions) capable of filing electoral lawsuits. The ideology of the candidates’ parties also matters, as supported by our second hypothesis. In fact, the average chance of a mayoral candidate launched by a left-wing party being sued corresponds to only 88.7% of the average chance of a right-wing candidate receiving such a lawsuit. There are no statistically significant differences between center- and right-wing candidates. Further studies should look into the cause of this finding, which at first glance could be linked to the fact that there are more right-wing parties and candidates in Brazil.

Another variable with a significant effect is the amount of funds raised for the electoral campaign. Candidates with wealthier campaigns tend to be sued more for the issues investigated in our research, as supported by our third hypothesis. For every 100,000 Brazilian Reais of electoral revenue, the chance of a candidate being sued increases, on average, by 3.1%.

The candidate’s wealth also appears to be associated with the chance of being sued, but the effect of this variable is relatively weak. For every 10 million reais declared by candidates to the electoral courts, the chance of being sued increases by only 0.4%. Therefore, the empirical evidence in favor of our fourth hypothesis does not seem to be very strong.

As for the effect of the characteristics of the municipalities, no correlation was found between the level of socioeconomic development and the candidate’s chance of being sued for irregularities in the relationship between money and politics. On the other hand, this chance decreases somewhat as the size of the electorate increases: on average, the reduction is 0.3% per 10,000 voters. Thus, the confirmation of our fifth hypothesis is only partial: electoral lawsuits are comparatively rarer in larger municipalities but not in more developed municipalities.

Finally, as we hypothesized, the chance of a mayoral candidate being sued increased in the most recent elections of the studied period. This chance is 3.9 times higher in the 2012 election and 2.4 times higher in the 2016 election, when compared to the 2008 election. Further investigation is needed to find out whether this increase is due to the greater practice of irregularities in the most recent elections, whether (and why) in these elections political actors were more willing to judicialize their political competition, or whether the TSE records were simply more complete for the most recent elections.

In short, the mayoral candidate most likely to be sued for irregularities in the relationship between money and politics is the most competitive candidate (especially the victorious one), launched by a right-wing party, with a wealthier campaign, very rich, from smaller municipalities, and who has appeared on the ballot in the most recent elections.

5. Concluding Remarks

In this article, we sought to offer an original contribution to the study of the judicialization of the electoral process in Brazil, with an emphasis on lawsuits stemming from accusations of irregularities in the relationship between money and politics, by situating the problem in light of the available literature and analyzing it empirically in local elections, with a view to measuring its incidence and defining the profile of the most targeted candidates.

New research can contribute in several ways to the accumulation of knowledge about the phenomenon studied:

First, there is room for research that addresses elections for other positions, either at the state (state deputy, federal deputy, senator, and governor) or federal (president) level.

Second, our database covers elections held up until 2018. It is important to analyze the incidence of the phenomenon in more recent local (2020) and national (2022) elections. Perhaps the attention to the judicialization of the electoral process in Brazil will be encouraged by the importance recently acquired by the phenomenon: Jair Bolsonaro, former president of Brazil, defeated by Lula in the 2022 presidential election, was declared by the TSE as ineligible for 8 years (until 2030) as a result of an AIJE filed against him by his opponents on charges of abuse of political power and misuse of the media.

Third, we welcome new efforts to improve our explanatory model of the type of candidate who tends to be most targeted by electoral lawsuits.

Fourth, further studies could better investigate the role of the Electoral Public Prosecutor’s Office as an actor empowered to file electoral lawsuits. As the MEP is a public agent, is its mode of action something different from that of other actors (candidates, parties, and party coalitions) who are essentially political actors?

Fifth, the judicialization of the electoral process may be triggered by a myriad of issues beyond the one we chose to prioritize in this work (the relationship between money and politics). The understanding of the phenomenon will be more complete the more we know about the relative contribution of each issue to its existence.

Sixth, it is important to study not only the inputs, that is, the electoral lawsuits filed as a result of the most diverse issues but also the outputs, that is, the decisions that were made by the electoral justice system about the lawsuits. This will allow us to better understand if and to what extent the judicialization of the electoral process has been an instrument used to make Brazilian elections better and cleaner, or if it has been predominantly one more strategic instrument to be used by defeated candidates who are discontent with the outcome of the polls.

The research agenda on the judicialization of electoral processes is vast and fascinating. We hope to have made a relevant contribution in this direction.