Brazil: Early elections instead?

Further regarding the impeachment and possible removal of Brazilian President Dilma Rousseff…

There is now a constitutional amendment being proposed by some senators that would result in an early election for president and vice president in October this year, rather than having the current VP take over in event of removal of the incumbent president.

In principle, I don’t like procedures that allow a VP to assume office following impeachment (resignation, death, etc.)–even less when it is common for the VP to be from a coalition partner (or former one, in current Brazilian case.) In fact, I’d say don’t even have a VP; I prefer early elections, although I can imagine that option creating some perverse incentives of its own. However, altering the constitution in the midst of an impeachment process doesn’t seem like a good idea.

The proposal is to have early presidential/VP elections this October. The sponsors have not decided whether this would be for would be for two years (the remainder of the current term) or a full four-year new term. If the latter, Brazil would go back to non concurrent elections, which would be an especially bad idea.

The possibility of early elections is already raised by the Brazilian constitution, however, although only in the unlikely event that the offices of both the president and the vice president are vacant:

Article 81. In the event of vacancy of the offices of President and Vice-President of the republic, elections shall be held ninety days after the occurrence of the last vacancy.

Paragraph 1. If the vacancy occurs during the last two years of the President’s term of office, the National Congress shall hold elections for both of ces thirty days after the last vacancy, as established by law.

Paragraph 2. In any of the cases, those elected shall complete the term of office of their predecessors.

Note that if this provision were ever in force, the president would be elected for only the remainder of the current term, thus restoring concurrent elections at the next election. However, the proposed constitutional amendment evidently could end up calling for four year terms, starting in 2016, whereas congress is elected every four years, with the next one being 2018.

I have no idea if the amendment stands any chance of passage. It takes just 3/5 votes of both chambers to amend the constitution. Ratification by states or voters is not required.

There is yet another way an early election could be called: by the Superior Electoral Court. In a separate (as far as I know) case, there is an investigation into election irregularities from the 2014 reelection of Rousseff.

Via Inter-Press Services:

If the 2014 elections outcome is challenged, new elections will be held. But experts believe that this ruling will not come until 2017, and in that case it would be Congress that would elect the new president and vice president who would complete the current term until 2018.

I find it quite extraordinary that the electoral tribunal could invalidate an election halfway–or even later–through the elected incumbent’s term.

17 thoughts on “Brazil: Early elections instead?

  1. I increasingly like the idea of including a possibility of early concurrent legislative + presidential elections in presidential systems, triggered by a legislative supermajority, without the need for any charges to be brought against the president. Could help provide a safety valve to counteract the Linzian ‘temporal rigidities’, allowing for a simpler resolution for the type of crisis Brazil now finds itself in, without the complications of bringing charges and convicting a president, as under impeachment.

  2. The US had a similar provision by Act of Congress from shortly after the founding until, I think, 1946 when it was repealed at the urging of President Truman. It would have allowed Congress by resolution to call a new election for Presidential Electors, who would then choose a new President and Vice-President for the remainder of the term.

    Curiously, it was also at Truman’s urging that Congress interposed the House Speaker and the Senate President pro tem after the Veep but before the Cabinet in the order of Presidential succession, something that constitutional scholars like Akhil Amar have argued is unconstitutional (since the presiding officers are not “officers” in the Constitutional sense that “Congress may specify”). Unfortunately you probably couldn’t get this tested in court until the Cylons have actually nuked the Capitol and Education Secretary Laura Roslin is fighting it out with House Speaker Nathan Templeton over who has the better claim.

    There’s a stringer claim for a fresh Presidential election if the current claimant to the Presidency is not the person who was popularly elected as either President or Vice-President at the last election. It seems a bit odd to have a Guy Scott-type rule that you elect a Vice-President along with the President but the former only serves as Acting President until a special Presidential by-election can be held. On the other hand, having a President who holds office (for as long as 47 months) only by virtue of having been confirmed by the Senate as Secretary of the Interior, seems to be stretching democratic legitimacy.

    My own view on early elections (dissolutions) is that, if these are allowed (whether freely, as in Australia at federal level, or on various conditions of perceived deadlock, as in Germany, the UK, most Australian States, etc), the newly-elected chamber should serve until the later of the following:

    (a) the next normal expiry date (eg, “noon on the first day of February in each year following a year divisible by four in the Gregorian calendar” – 2017, 2021, etc) at least two years after the dissolution election, or

    (b) the first day of a calendar month starting after the second anniversary of the dissolution election.

    Ie, you don’t get a full new term, but you also don’t just serve out the remainder of the original term. The latter would mean that early elections ‘too close” to the expiry date either (#1) have to be banned, or (#2) [as in Scotland] allowed to nullify the regular election, or else (#3) you have two polls very close together. #1 means a deadlock could last for months longer than needed. #2 means the government can effectively pick an election date of its own choosing, which fixed terms were meant to avoid, and #3 could end up wearying the voters (Greece, 2015) and favouring the party with the biggest war chest (Australia, 1972-75).

    This way, the newly-elected house gets a term of reasonable length (as long as the US House of Representatives) but not a full term, and the regular election dates will eventually re-synchronise.

    Following JD’s proposal, here’s a thought experiment:

    I. President and lower house have a concurrent term, say 4 or 5 years. (Ideally with the above provision for re-synchronising terms).

    II. Either can call a new election at any time but there is some delay (eg 4 months) before the poll actually happens.

    III. President’s Cabinet require annual approval by the lower house except during the 4-month dissolution period.

    • Tom, the trouble with your provision II (Either can call a new election at any time) is that it makes the system ‘elected prime-ministerial’ unless the assembly requires a supermajority to make the decision.

  3. That’s a good idea, do all Presidentialist countries have fixed term elections for the legislative branch and presidency? It seems as it if Presidentialism equals to fixed terms (except countries like Venezuela and/or sub-national units using a recall procedure), and Parliamentarism is to unfixed terms (albeit Norway has fixed terms, Sweden has extra elections, and Germany has early elections only if parliament fakes it.) It seems as if most Presidentialist countries should experiment with early concurrent legislative + presidential elections using the Swedish method as having unfixed terms would be odd and unworkable with 2 terms for the President.

    Quoting Brazil’s Constitution;

    Subsection II: Amendments to the Constitution
    Art 60

    Constitution amendment procedure
    Constitutional amendments may be proposed by:
    I. at least one-third of the members of the Chamber of Deputies or the
    Federal Senate;
    II. the President of the Republic;
    III. more than one-half of the Legislative Assemblies of units of the Federation,
    each manifesting its decision by a simple majority of its members.
    §1°.The Constitution cannot be amended during federal intervention, state of
    defense or stage of siege.

    Emergency provisions
    §2°.A proposed amendment shall be debated and voted on in each Chamber of the
    National Congress, in two rounds, and shall be considered approved if it obtains
    three-fifths of the votes of the respective members in both rounds.
    §3°.A Constitutional amendment shall be promulgated by the Executive
    Committees of the Chamber of Deputies and Federal Senate, taking the next
    sequential number.

    Standing committees
    §4°.No proposed constitutional amendment shall be considered that is aimed at
    abolishing the following:

    Unamendable provisions
    I. the federalist form of the National Government;
    II. direct, secret, universal and periodic suffrage;
    III. separation of powers;
    IV. individual rights and guarantees.
    §5°.The subject of a defeated or prejudiced proposed Constitutional amendment
    may not be made the subject of another proposed amendment in the same
    legislative session.

    It seems odd that Brazil’s Constitution requires no referendum or ratification of the states once Congress passes a Constitution. That seems odd for a Federation, that makes me think that Federalism can be abolished, but there is an eternity clause of Federalism in the Constitution, that is not entrench and could be changed, of course, Brazilians would make a big stink if anyone would try to change this. It seems as if Brazil is one of the most centralized Federations in the world.

    • Rob, the principle on which presidentialism may be said to be based is ‘separation of origin (ie election) and separation of survival (ie continuation in office) of the executive and legislative branches). Therefore, a system of government which allows one or more of the two to call new elections is arguably not presidential, at least not *pure* presidential. However, in practice, the naming conventions seem to centre on two specific aspects:
      1) Is the head of state or chief executive elected?
      2) Is the cabinet collectively responsible to the assembly?
      With a system where the answers are ‘yes’ and ‘no’, respectively, being labelled presidential. Collective responsibility means that the assembly can, by majority vote, remove the cabinet. If a supermajority is required, that doesn’t count. There is an executive type (which to my knowledge has only ever existed in Israel, from 1996 to 2002), which allows the assembly to remove both the *elected* chief executive and his cabinet, by majority vote, which automatically triggers an election – elected prime-ministerial. A system with an elected head where the assembly can call new concurrent legislative/executive elections is tantamount to elected prime-ministerial, as there is no practical difference between ‘removing and triggering new elections’ and ‘calling new elections’.

      There are countries that, under the above schema, are presidential, and yet also provide the president with the power to call early elections. Shugart and Carey 1992 said such countries may be considered ‘superpresidential’ due to the amount of power in the hands of the president, though I think that was meant as a descriptor, not as a term of art. Among these countries are Zambia, where calling an early election depends (since earlier this year) on agreement from the constitutional court, and early legislative elections are held alongside early an early legislative election, as well as Ecuador and Cameroon, which allow the president to call early legislative elections without the requirement for a concurrent early presidential election.

      You are right that the Brazilian Constitution is unusually flexible and its amendment procedure is unusually centralist for a federation. I do not know if Brazil is particularly centralised in practice, that is in terms of the distribution of competences or of sources of tax revenue.

      • “1) Is the head of state or chief executive elected?
        2) Is the cabinet collectively responsible to the assembly?”

        The point 1 is really relevant? Perhaps only to differentiate “presidentialism” from “constitutional charter monarchy” (a monarchy with an elected parliament but where the king retains the executive power).

        Why I doubt the relevance of the point 1? If we are talking about any kind of election, this is largely redundant – at least in republics, the head of state or the chief executive (one of them, at least) is always chosen by some kind of election; if we are talking only about direct elections, this will exclude from “presidentialism” many countries thar are usually considered presidential, like Brazil under the military governments, or the USA themselves.

      • Maybe Brazil could allow the President to call for snap Presidential elections to clarify a President’s mandate, and could continue to keep fixed Congressional terms. Would that be Presidentialist? That would be unusual though, but it would be interesting if that could be tried, would that be prime minister elected.

      • I suppose I should have been more specific… by ‘elected’ I meant ‘popularly elected’. By this I mean either:
        1)direct election; or
        2)election by an electoral college elected directly and only for the purpose of electing the office/s in question.
        By 2) I wish to exclude so-called ‘electoral colleges’ such as those that elect the Indian, German, Surinamese, Swiss or (originally) the French 5th Republic’s chief executive/head of state – these ‘electoral colleges’ are either not elected directly or consist of members also elected for a different role, such as local politician (Surinam), state legislator (India) or federal legislator (Switzerland).

        Electoral colleges that do count for ‘popular election’ include the US and those which formerly existed in Argentina and Finland. In elections to those electoral college, the only end which the electoral college served was to elect a new president (and vice-president). Therefore, that is the only thing which could form the basis of electoral competition to those bodies – the only thing candidates for elector could promise and differentiate themselves from other electors – hence voting behaviour may be expected to approximate behaviour in directly-elected contests.

        Of course, some countries fall between the cracks even with such a definition. For instance, what of Bolivia, which had direct elections but where Congress decided if no candidate had an outright majority? Unlike Chile, these Congressional selections not only happened frequently but were real selection processes, with bargaining between parties. So de facto, for a long period, Bolivia essentially functioned as assembly-independent, only with nominations based on direct election.

        I don’t think military government in Brazil or any other country counts as democracy… so I exclude that from my considerations here.

      • It would seem odd to me to call Brazil “centralized”. The states are exceptionally autonomous policy units. They are dependent on fiscal transfers, but the central government typically has quite limited say in how state governments spend those funds.

      • “The South Korean presidential election of 1979 was an extraordinary election which took place on 6 December 1979 after the assassination of Park Chung Hee on 26 October. The electoral college, the National Council for Reunification, had been elected in May 1978, and voted by a margin of 2,465 to 84 to confirm former Prime Minister Choi Kyu-hah, who had been acting President since the assassination, as the President of the Republic of Korea without opposition. The 84 votes were declared invalid; a further 11 delegates were not present.” https://en.wikipedia.org/wiki/South_Korean_presidential_election,_1979
        South Korea had annual presidential election 1978-1981, it seems.

      • Tom, I had reason to look quite carefully into the issue of South Korea’s electoral colleges. Robert Elgie says that they were directly elected, as does an Electoral Studies paper (Hicken and Kasuya 2003). However, I assume that, if they did take place (and I haven’t been able to find any details on them) they were more ‘elections’ than elections.

  4. Then you get cases where an executive President is chosen by members of the legislature, but their membership or voting weights are different from the normal method for passing Bills into law — or indeed the normal method for electing the legislature’s own presiding officers.
    Two examples that come to mind:
    1. The USA’s default procedure if the Electoral College has no absolute majority on the first and only ballot. The President gets chosen by the House, with each State delegation having one vote (presumably decided by a majority of the CongressReps from each State). The Vice-President is elected by the Senate, with each State having two votes (ie, the normal one vote per Senator). I’m at a loss why the USA passed up two chances to define “election by Congress if the Electoral College is hung” as simply election by joint sitting, with each CongressRep and Senator having one vote each, with a limited number of balloting days requiring an absolute majority before a simple plurality decides by default.
    2. South Africa’s procedure under this second apartheid republic (1984-1994) where the State President was chosen by an Electoral College that included some of the members of each of the three racially-based chambers (White, Indian, Coloured). I’m not sure how each chamber chose which members sat as Presidential electors — I’d assume some kind of proportional basis otherwise there’d be little point.
    Of course, even election by absolute majority and/or simple plurality of a joint sitting of the two chambers departs from the normal procedure from passing a Bill or resolution… but as long as every member of the assembly and (if any) the Upper House gets a vote, and each has 1.000 vote, a joint sitting is *less* unlike that normal procedure than the above two arrangements are.

  5. I actually own or owned a copy of Brazil’s constitution. Its the size of a paperback novel but written in legalistic Portuguese (my copy had a bad translation), but its not as interesting and I have to admit I never got through the whole thing. My impression is that they used the US constitution for the overall concept, then looked for ways to make it worse.

    I’ve seen media reports (such as this: http://www.theguardian.com/commentisfree/2016/apr/21/dilma-rousseff-enemies-impeached-brazil) that the problem isn’t really any crimes that the President may have committed, but that most of the legislators as well as the Vice President are under investigation for corruption. The idea is to get rid of the current President, than have the new President fire the prosecutors and stop the investigation. If this is true, than the impeachment and removal would be similar to that of Governor William Sulzer of New York in 1913 (https://en.wikipedia.org/wiki/William_Sulzer), that the cause would be that the chief executive is not crooked.

    • At least Brazil’s Constitution is easier to amend than the U.S, but odd for a Federation not to require a nation-wide referendum or ratification by the states.

  6. On the other points, Amar makes a good argument over the President Succession Act. However, for much if not most of the early history of the US, it was the President Pro Tem of the Senate who was to become acting president if both the Presidency and Vice Presidency became vacant at the same time (this is now really unlikely anyway after the passage of the 25th Amendment). So there is a strong presumption that this is constitutional. In 1946 they just returned to the earlier pattern, but switched out the President Pro Tem of the Senate, a post which for some reason usually goes to the oldest Senator, with the more important and more visible Speaker of the House. Its the House that elects the President in the event of an Electoral College deadlock anyway, which also makes the change appropriate.

    One relevant point that Amar also makes is that it took the 25th Amendment to codify directly that the Vice President becomes the new President in the event of a vacancy. Before it was left unclear if the Vice President would be President or just acting President, or even just acting President until new elections could be organized. Practice settled on the Vice President becoming President in the event of a vacancy, despite the administrations of the first three Vice Presidents to become Presidents this way being failures, in two cases because of the practice, since abandoned, though evidently not in Brazil, of making the Vice Presidential candidate a politician from a different party than the Presidential candidate. In the fourth instance, the Vice President was from a different faction in the same party as the President he succeeded, and failed to get nominated for the last election, though the administration was at least successful in policy terms.

    The provisions of the Presidential Succession Act have not been used and there are some questions that should be clarified. It would be better if a joint Congressional resolution addressed them before they come up, but I’m pretty sure this will not happen. It appears that the Speaker or President Pro Tem would be acting Presidents if they filled a vacancy, as people thought initially would be the case with the Vice President. What I think should happen, based on the text of the 25th Amendment, is that any official becoming acting President would keep the job and salary they had beforehand, but take a leave of absence from the position. I don’t see any authority to hold a new presidential election. The duties of acting president would attach to the position, usually of Speaker, so if there was a mid-term Congressional election before the next scheduled Presidential election, the new House could elect a different Speaker, who would become Acting President. The House would have to come up with an acting Speaker. Otherwise the powers of the acting President would be the same as that of the real President. The same would apply if one of the other officials became Acting President. Note that the Speaker of the House does not have to be a Congressman.

    The provisions for an Electoral College and for a Vice President are redundant. With Electors having already been selected to chose a President, in the event of a vacancy they could just choose another President a couple of weeks later, with a Cabinet officer serving as acting President in the interim. The Electoral College does not assemble as a body or deliberate, which complicates things, but it didn’t have to work this way. In general, it seems better to use interim executive then new election as means of filling executive vacancies than to create an official who is designated to fill a vacancy but has no other job.

  7. In the Constitution that exists in my head, legislative terms would be set by ordinary (non-Constitutional) legislation. This is the case with the UK, and this is one of those things that if a legislature can get away with staying in office forever -and you still mandate by elections to fulfill vacancies, so the legislature still renews itself through death- they can probably get away with violating all sorts of other constitutional provisions, so a check in the Constitution is pointless. It would be left up to the legislation whether the chief executive could call for legislative elections, or they would be held on a fixed schedule, or the majority party leadership from the lower House could effectively call them as in parliamentary systems.

    The President would be elected concurrently with every other election to lower House of the legislature. The upper house of the legislature, if elected at all, would be elected when there is an election to the lower house, not coinciding with an election of the President. With this model, there would be ways for the President and lower House to overcome upper House obstruction to a program they disagreed on, avoiding the need for a President to call for something like a double dissolution.

    A new election for the President would also happen a month after a vacancy, with someone like the chief presiding officer of the upper House filling in as an interim during that month. In this case a concurrent election to the lower House would also be held. Then the cycle would resume as normal.

    With these provisions, you could make it fairly easy for the legislature to remove a President they agreed with, but the process would have to start in the lower House, whose members themselves would then face an election. Even if the removed President is barred from running in that election, a popular President in these circumstances could get a supporter elected. This would be a check on frivolous removals, and actually a better one than language requiring the legislature to convict the President of some sort of crime.

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