Do Corporate Campaign Donations Rig the Political Game? Brazilian and U.S. Courts Disagree


The Brazilian Supreme Court recently ruled that a statute allowing corporations to donate to political campaigns was unconstitutional. In so holding, the Brazilian Supreme Court in some ways mirrored the reasoning of Austin v. Michigan Chamber of Commerce, a United States Supreme Court decision overruled by Citizens United v. Federal Elections Commission.

Rosa Weber, one of the justices in the majority in the Brazilian decision, wrote: “The influence of economic power has ended up transforming the electoral process into a rigged political game, a despicable pantomime which makes the voter a puppet, simultaneously undermining citizenship, democracy and popular sovereignty.” Though stated a bit less colorfully, the decision in Austin used roughly the same reasoning. The Citizens United court described Austin as finding that the government had a compelling interest in preventing “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” The Citizens United court, however, went on to overrule Austin, holding that the “Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.

Both the Brazilian decision and Austin used rather strong language in discussing the problems created by corporate campaign funding; a quick look at the sums spent on recent elections in each country can partially explain why. In the 2014 Brazilian elections donors contributed $760 million (R$3 billion), over 75% of which came from corporations. In the United States individuals and, after the Citizens United decision, corporations are allowed to spend unlimited sums to support candidates as long as they do not coordinate with the candidate’s campaign. In the 2012 elections the top 20 political action committees in “independent expenditures” spent a combined $734 million. A total of $6 billion was spent on the presidential and congressional races.

Another issue that likely weighed on the Brazilian Justices’ minds as they deliberated is the recent Petrobas corruption scandal that has rocked the Brazilian government. Among the allegations stemming from the scandal is that the currently governing Workers Party has kept up to $200 million, which were supposedly contributed as campaign donations.

Given the Petrobas scandal, and the amount of money spent on campaigning, it is not surprising that in joining the majority to ban corporate donations, Justice Luiz Fux stated: “We have come to an absolutely chaotic situation in which economic power dominates political power in an illegal way.” United States citizens, for the time being, will have to be comforted by the Supreme Court’s determination that despite the vast sums spent on campaigns as independent expenditures, “[t]he absence of prearrangement and coordination . . . alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” Left unstated by articles discussing the Brazilian Supreme Court’s decision is whether such independent expenditures are allowed in Brazilian campaigns. If they are, then despite the rhetorical differences, the Brazilian decision and the Citizens United decision are not that far apart.

Leave a Reply

Your email address will not be published. Required fields are marked *