PhD Thesis: The Brazilian Law of Democracy and Its Implications for Competition Law
Posted: 17 Nov 2020
Date Written: December 16, 2019
For many, including the majority of the Supreme Court in the ADI 4650 case, war chest and dependence corruption apparently occurred in Brazil. This thesis investigates, through case studies, whether the appearance of those types of political finance corruption impacted the confidence we should have in the democratic integrity of antitrust legislation and its enforcement; and concludes that this confidence has been impaired, at least partially.
Considering that, when it comes to political finance corruption, mere appearance is enough to justify regulatory reforms, the question that then arises is how the law of democracy should be framed to promote the appearance of electoral integrity. The thesis advances a proposal to foster the appearance that elections reflect a ‘free formation of public opinion’, and, in that sense, it argues that political finance and media regulation should adopt that as a paradigm. By arguing that legislation aimed to promote media access and impartiality of broadcast corporations during elections is not (and perhaps will never be) enough to satisfactorily diminish the influence of media economic power over elections in Brazil, the thesis proposes media regulation based on both democratic distribution and the power to impact public opinion. When it comes to the competition between political parties and their candidates, the thesis argues that vouchers could help to solve the controversy regarding the distribution of parties’ public resources but that, in any event, caps should be introduced to prevent predominant influence on public opinion. The paradigm also provides an answer to the dilemma faced by judges whenever they must determine what level of illegal spending is sufficient to distort an election: under a Rawlsian account of democracy, if the illegal practice allowed the candidate to have more than 30% of total electoral spending, there is a presumption that it distorted the election — under a Schumpeterian perspective of democracy, that threshold could be adjusted to 50%.
Keywords: Political Finance (Party Funding and Campaign Finance), Media Regulation, Competition Law, Antitrust Law, Brazil
JEL Classification: K21, D72, D73, L40, N46
Suggested Citation: Suggested Citation