A Emenda Constitucional 97 e a Cláusula de Desempenho: A alteração no art. 17, §3o, da Constituição Federal, fere a liberdade partidária no Brasil?

Abstract

This monograph addresses the party performance clause, instituted in 2017 by Constitutional Amendment No. 97, which amended the wording of Article 17 of the CRFB/88, and thereby imposed on political parties the requirement to obtain minimum percentages of votes or elected representatives in the elections for federal deputies, so that the legends remain with access to resources from the party fund and the right to free electoral advertising on radio and television stations. This provision was contested, especially by smaller parties, who argued that the restrictions limited the activities of the associations to the point of making the party's survival unsustainable, thus violating the principle of party freedom. This discussion motivated the choice of the theme as an object of investigation in this work, especially because it affects institutions as relevant to democracy as the political parties. The present work is divided into three chapters of development, with the aim of examining sources, facts and thoughts that provide the necessary conditions for the construction of fundamental positions on the problem. In the first chapter, doctrinal concepts relevant to the theme are discussed and a retrospective evaluation of party legislation throughout the Brazilian republic is made, culminating in the 1988 Constitution's treatment of parties. The second chapter is dedicated to analyzing the context of Constitutional Amendment No. 97, from the previous initiatives aimed at creating the performance clause, through the circumstances that motivated the amendment, and also dealing with the regulatory standard of the Federal Supreme Court on the subject. In the third chapter, the consequences of the performance clause are analyzed, based on the results of the 2018 elections and the attitudes taken by the parties from these effects; besides the projection of future impacts and, finally, reflections on the compatibility of the device with the constitutional order. Regarding the methodology, the qualitative approach was adopted, with specialized literature review. The conclusion was that the clause of party performance instituted by Constitutional Amendment No. 97 does not offend party freedom, insofar as it does not advance on the performance of parties in parliament, nor attacks their prerogatives; representing an important defense against the exacerbated Brazilian party fragmentation and an instrument capable of leading Brazilian democracy to a stage of better representation of citizens and greater political maturity.