Scientists investigate the role money and courts play in Brazilian elections
Elections in Brazil can be held either in one round—in proportional-representation elections for legislative seats and in elections for mayor in cities with up to 200,000 voters—or in two rounds—for Executive positions if no candidate wins an absolute majority of votes in the first round. But informally there is also what is known in Brazil as a third round, when election results are contested in court. In mayoral elections, successful candidates are nearly twice as likely (89.7%) to be sued by their opponents or by public prosecutors than unsuccessful candidates. The winners, in contrast, are far less likely to go to court: only one suit is brought by a successful candidate for every five brought by defeated ones (18.2%).
“After you’ve won the election you no longer want to think about disputes, much less legal ones. You’re looking forward to peacefully taking office,” says Wagner Pralon Mancuso, a political scientist from the School of Arts, Sciences, and Humanities at the University of São Paulo (EACH-USP). Mancuso co-authored a paper titled, “Um estudo da relação entre dinheiro e política a partir de processos da Justiça Eleitoral” (A study on the relationship between money and politics: insights from cases in the election courts), with fellow political scientists Vanessa Elias de Oliveira, of the Center for Applied Engineering, Modeling, and Social Sciences at the Federal University of ABC (UFABC), and Bruno Speck, a professor at the USP School of Philosophy, Languages and Literature, and Human Sciences (FFLCH). With funding from FAPESP and the German Research Foundation (DFG), the researchers investigated the 2008, 2012, and 2016 mayoral elections in Brazil in a collaboration with a team led by Markus Pohlmann and Elizângela Valarini from the Department of Sociology at Heidelberg University, in Germany. They focused their research on lawsuits alleging campaign finance violations as defined by the Electoral Justice Department, including abuse of economic power, illegal fundraising or illegal use of campaign funds, and corruption or fraud.
Of the 38,525 candidates they surveyed, 3,873—or 10.1%—had been sued. The data showed that both the likelihood of suing (293%) and the likelihood of being sued (228%) increased dramatically between the 2008 and 2012 elections for mayor. But in 2016 these numbers declined: the likelihood of being sued was 145% higher and the likelihood of suing was 70% higher than in 2008. The initial increase can be partly due to statistical reasons, including case file digitization and the increased availability of data, explains Mancuso. The subsequent decline could, in turn, be the result of a minor electoral reform in 2015 that banned corporate campaign contributions, resulting in lower campaign spending, including on lawsuits.
Judicialization of politics is neither exclusive to Brazil nor an entirely new phenomenon
The data suggests that recourse to the courts may indeed be being used to drag elections into a “third round.” “If the reason were to ensure election integrity, it wouldn’t matter if one candidate had 1% of votes and the other 99%. If the one with 1% has been implicated in vote buying, they’re wrong just the same,” says Mancuso. “But the targets of electoral litigation are typically the most competitive candidates. This could be because the justice system lacks the resources to entertain all cases, and focuses on the most contested ones; but it could also be that candidates are using lawsuits as a weapon against those ahead in the race,” he says, adding that further research is needed to demonstrate whether this indicates the courts are being weaponized.
Data on electoral cases cannot provide a measure of electoral corruption, as most cases are either dismissed or the candidates are ultimately absolved. But they can provide a measure of the “judicialization of politics,” or the extent to which the Judiciary is involved in election processes.
Judicialization, says Mancuso, can serve two purposes: “It can be used to ensure greater election integrity,” by preventing abuse and dishonest election strategies, or it can “allow bad losers to use the justice system as if it were a third round, trying their luck.” Mancuso refers to this as “strategic use of judicialization in the election process.” He believes an increasing reliance on the Judiciary can upset the political balance if it reflects an attempt by financially powerful candidates to smother weaker ones.
This phenomenon is neither exclusive to Brazil nor entirely new. In 1995, Swedish political scientist Torbjörn Vallinder reported what he described as a “global expansion of judicial power.” “Judicialization research became more prolific in Brazil early in this century. It initially explored how judicial institutions influenced the political process broadly, but not elections specifically,” says Vanessa Elias de Oliveira.
But examining the election process is necessary, she says, to understand how money can shape politics. “This can involve election corruption or unlawful uses of public or private funds in the election process. Many of these cases are brought to and settled by the courts,” she says. To focus on the money factor, the researchers selected cases involving campaign spending and excluded “common” cases relating to slander or advertising irregularities, for example.
Oliveira believes the findings from the study are insufficient to show that judicialization is leading to a “third round” in the elections. “But they do show that the Justice System has become an integral part of the political and election process. Recourse to the courts has become a given. Political actors will use them both to influence election results and to stake out their position, symbolically, on different issues,” she says. “Being able to go to court to contest the election results is important in a democracy,” she adds.
The power of money The paper by the trio of political scientists is part of a body of research that seeks to shed light on a question that affects everyone’s lives: to what extent does financial power influence policy and political decisions, and the elections in particular? As noted by political scientist Rodrigo Horochovski from the Federal University of Paraná (UFPR), a classical theme in political research is the risk that democracies could be weakened by big money and become plutocracies, or societies governed by the wealthy.
Quantitative studies on the relationship between money and votes were pioneered in the US in the 1970s. In Brazil, the earliest research on how money influences the elections began in the late 1990s, says political scientist Ranulfo Paranhos, a professor at the Federal University of Alagoas (UFAL). “This is something we believe happens intuitively, but that needs to be demonstrated scientifically: does higher campaign spending mean more votes? The literature indicates that the answer is a definite yes,” says Paranhos. “The next question to ask is, to what extent does money affect election outcomes? Who benefits most from campaign spending? What type of campaign spending produces what effect?” Research on federal deputies in Brazil came to the same conclusions as political scientist Gary Jacobson did for candidates for Congress in the US: “Challengers are the ones that benefit most from campaign spending; it takes more money for an incumbent to convince voters.” In other words, in a hypothetical situation in which candidates receive the same number of votes, the incumbent will have spent more money to reach this result.
In a paper published last year, titled “Dinheiro e sucesso eleitoral em 2008, 2012 e 2016 no Brasil” (Money and election success in Brazil in 2008, 2012 and 2016), Horochovski explored the effects from electoral legislation introduced in 2015 to limit the weight of campaign spending in election outcomes. This goal, according to the study, was not achieved. “The top spenders are still winning the elections. While average campaign spend per vote fell in 2016 after rising from 2008 to 2012, the majority of votes were still garnered by the biggest spenders,” says the UFPR professor. The difference in average campaign spending between successful and unsuccessful candidates in local council elections was 629% in 2008, 685% in 2012 and 664% in 2016.
It has become increasingly difficult for candidates to win elections without a professional team of lawyers, accountants, and campaign managers
Horochovski is co-leading a working group on policy strategy and the influence of money on the political system, at the Brazilian Association of Graduate Studies in Political Science (ANPOCS). The first research published by the working group, created in 2011, was primarily on the subject of campaign funding. Gradually their research interests broadened to include lobbying and other ways that private interests influence political actors.
“More recent studies have explored issues surrounding judicialization and corruption. Most papers about campaign finance deal with lawful campaign contributions. But after the recent political scandals in Brazil, there has been an increased interest in studying illegal political contributions,” notes Horochovski. “But this is a more challenging field of research, as information about unlawful campaign spending is rarely publicly available.”
While limiting themselves to aboveboard campaign finance, these studies clearly demonstrate the power of money in election success. Using a network approach to study Brazil’s municipal elections since 2008, Horochovski and his team showed that the more central a candidate’s role in a party’s funding structure, the more likely that candidate is to be elected city councilor.
As a starting point, the paper by Mancuso, Oliveira, and Speck tested the hypothesis that candidates with more money are more likely to go to court because they are better able to afford the lawyers to do so. “In other words, the courts are an instrument that can be better leveraged by the wealthy,” summarizes Oliveira. “The same is true when it comes to the judicialization of public policy. If this hypothesis is confirmed, it will mean judicialization is an additional source of inequalities.”
What the data have shown for certain so far is a trend toward highly professionalized political campaigns. It has become increasingly difficult to win an election without a professional team of lawyers, accountants, and campaign managers. “Judicialization has created an important niche market for the legal profession. Politicians have discovered, and are increasingly exploiting, judicial avenues for political gain. This has led to the formation of armies of specialized lawyers,” says Oliveira.
But professionalization can lead to exclusion by making running for office a more complex process, especially for those who are lower in the party’s ranks and have less access to these professionals, notes Horochovski. “We found, among other things, that this leads to more candidates being disqualified by the electoral courts. Most of the time they are disqualified not because of fraud or corruption, but because of accounting, formal or clerical issues,” he says, adding that more female candidates are disqualified than men. “One reason is that Brazilian political parties are now required to fund a minimum quota of female candidates. But when we profiled female candidates who had been disqualified, most self-identified as housekeepers.” This suggests, says Horochovski, that parties are not selecting female candidates whom they believe to be truly competitive.
The growing professionalization of political campaigns was demonstrsted in a 2018 paper by Paranhos on the municipal elections between 2008 and 2016. The study divided campaign expenses into “overhead” and “strategic” costs—with campaign office rental, fuel and other expenses placed in the first category, and advertising and accounting expenses in the second. In the eight-year period across the three elections, strategic expenses significantly outgrew overheads. Overhead expenses went from being 52.31% higher than strategic costs in 2008 to being 14.68% lower in 2016. Advertising expenditure is especially significant, consuming more than twice as much campaign funding as transportation—an average of R$65,500 compared to R$29,000. “With greater professionalization comes higher campaign spending on strategy. And advertising is a big part of this. Candidates for mayor, in both small and large cities, typically believe they will reap good returns from spending on advertising,” says Paranhos.
Methods used As in other quantitative studies in the humanities, research on campaign spending has benefited from the advent of digitization, which has opened up a vast universe of data for scholars, and made it easier for those data to be collated and compared. A usable volume of digitized case files has been available only since 2008, says Mancuso. Reviewing physical case files from previous years would require an extraordinary effort, a huge team, and a generous budget.
Basic information on cases from the most recent elections is available in a Case Tracking System (SADP) with which all electoral courts are integrated. “But to get the details on a case you would need to review the Diário da Justiça, which is not the easiest way to compile information,” says Mancuso, referring to the official Justice System journal. “Fortunately, all the information we needed was readily available.” In 2016 the SADP system was superseded by an Electronic Case System (PJe) containing what Mancuso describes as “very complete” case files with all documents pertaining to a case.
But the team hit an unexpected snag when attempting to compile information: the PJe system uses captcha technology as a security feature to prevent the system from being crawled by bots, the very method the team used to “read” the case files, says Mancuso. This required the team to access each page manually. “Luckily, the election data in the PJe system were primarily for 2018 and onward, so this didn’t affect our research,” he says.
While the quality of available data and ease of access have improved in recent decades, there are still significant limitations. “One thing that became evident was that the longer the time series we use, the more the issues and the less reliable the information,” says Paranhos, citing problems such as gaps in data series, data entry errors, and a lack of standardization. On the positive side, Paranhos celebrates the newly launched electionsBR platform created by political scientists Denisson Silva, Fernando Meireles, and Beatriz Costa, which aggregates elections databases available at the High Electoral Court.
Project Corporate crime and systemic corruption in Brazil (no. 17/24464-7); Grant Mechanism Regular Research Grant; Principal Investigator Wagner Pralon Mancuso (EACH-USP); Investment R$239,547.14.
Book Oliveira, V. E. de. Judicialização de políticas públicas no Brasil. Rio de Janeiro: Ed. Fiocruz, 2019.
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