By DOUGLAS CARVALHO RIBEIRO*

Bills approved with reservations: electoral legitimacy in check?

Efforts to legally regulate the financing of political parties and candidates, considered in many countries a kind of “never-ending legislation”, are based on a moralizing impetus for politics.

In other words, it is expected that the correct application of the limits and procedures established within the scope of the legislation will have the power to ward off the abuse of economic power in electoral competition, as well as guarantee, within the public sphere, a reserve of legitimacy for the parties. politicians and their agents through the transparency of their accounting books.

It should be noted that both aspects mentioned above become very sensitive in election years, as it is at this time that the attention of the general public turns to the competition around the various political positions in dispute.

From provision to judgment of electoral accounts

Specifically with regard to the judgment of electoral accounts of candidates for elected office and political parties, the procedure, which is regulated both by Law No. virtually by candidates through the Electoral Accountability System – SPCE. The scanned documents are then automatically included in the Electronic Judicial Process (PJe) and the digital records are sent to the body responsible for carrying out the technical-accounting analysis.

The information provided by the candidates is systematized and published after the deadline for submitting the electoral accounts, so that any candidate, party, coalition or the Public Prosecutor's Office can present an objection to the rendering of accounts within three days, counting from the publication of the notice. If there is no objection, the so-called preliminary report of accounts will be prepared, at which time the technical body of the Electoral Justice may determine specific steps to remedy any incompleteness or inconsistencies within the scope of the accounts provided by the candidate or political party.

The technical-accounting analysis ends with the preparation of the conclusive account rendering report, which will later be sent to the Public Prosecutor's Office for the issuance of an opinion within two days. After the position of the Public Ministry, the Electoral Justice manifests itself on the regularity of the rendered accounts, judging by the approval, approval with reservations, disapproval or non-rendering of the accounts.

In the absence of time...

Article 30, § 1 of Law nº 9.504/97 establishes that the decision that judges the accounts of the elected candidates must be published within three days before the graduation. This means that, in line with art. 29, § 2 of said law, there is no diploma without the respective judgment of the accounts. The rendering of accounts of the non-elected candidates will be appreciated at a later time.

In this respect, the 2020 municipal elections will represent a challenge to the technical capacity of the Electoral Justice. As highlighted Joao Andrade Neto, there was an increase of 45 candidates compared to the 2016 elections, which necessarily implies an increase in the volume of accounts to be analyzed and judged. This would add to the entire operational effort to maintain the electoral calendar amid the health chaos generated by the pandemic.

It is to be feared that, in the midst of the immense volume of work and the lack of time, the intermediate solution expressed by the approval of qualified accounts will become commonplace. Introduced in the legal system by Law nº 12.034/2009, the approval with reservations can occur even with the presence of material errors in the accounts provided by parties or candidates.

According to the case law of the TSE, small material values ​​or errors that do not prevent the affirmation in the sense of the fairness of the accounts rendered. Even in situations involving donations prohibited by electoral law, it has been decided to approve accounts with reservations. Taking advantage of this polyvalent clause – as STF Minister Marco Aurélio stated – the lack of time or insufficient personnel to analyze a large volume of accounts is no longer an impediment to meeting the deadlines established by the electoral legislation.

Despite the normative forecast and the jurisprudential settlement of such a practice, it remains to be seen whether the artifice created does not harm the purpose that justifies the legal regulation of the financing of the policy, that is, the guarantee of the fairness of the electoral process.

*Douglas Carvalho Ribeiro is a doctoral candidate in Law at the Universität Hamburg (Germany).

Originally published on 2020 Election Observatory Institute for Democracy and Democratization of Communication (INCT/IDDC)