The new barrier clause and the survival of minorities

Abstract

The purpose of this article is to analyze the barrier clause approved In Constltutlonal Amendment 97/2017, whlch restricts the minority politicai parties's access to the public share funding and to the free politicai advertising time on radio and television, due failure to achieve a minimum percentage of votes in the proportional elections to the lower house, or alternatively, failure to elect a minimum of fífteen federal representatives distributed in one third ofthe States. This article also investigates the historical incidence ofthe electoral perfomance dause in Brazil, using classical bibliographical review on politicai parties, democracy and electoral law, in order to discuss its constitutionality. In sequence, this essay projects the Impact of the new constitutional amendment, on the basis of statlstical data provided by the Superior Electoral Court relating to the general elections of 2014, compared to the 2006 elections, when it comes to the ADI 1.351/DF, which ruled unconstitutional the original barrier clause insert in Law no. 9.096/95. The artlcle concludes that constltutional amendment 97/2017, In the part that amends the third paragraph of article 17 of the natlonal Constitution, represents a violation ofBrazilian democracy as far as this has elected the electoral system of proportional representation, politicai pluralism, multiparty system and equal opportunities as fundamental principies. Therefore, the amendment would be jeopardizing the survival of minority parties, premise of the Democratic Rule of Law in favour ofthe established power.