Given the unique characteristics of the Brazilian political landscape, particularly the large number of political parties, it is necessary to consider the level of autonomy these groups possess and the possibilities for external oversight.

Thirty years ago, the Federal Constitution, through Article 17, § 1, expressed the need to grant autonomy to Brazilian political parties so that they could preserve their identity of thought and organization. 

Furthermore, the original constituent assembly guaranteed the requirement of affiliation with political parties for anyone wishing to run for political office. In other words, these groups were elevated to the status of legitimate conduits to power in a democratic state governed by the rule of law. 

In this sense, it is important to understand the structure and limits of this autonomy, in order to comprehend its legal nature and its practical application. 

Party Autonomy in a Constitutional Context

Ensuring the exercise of autonomy thus implies reducing or eliminating mechanisms of external control over the actions of certain individuals or entities. Party autonomy in Brazil refers to the set of rights and guarantees that political parties possess to organize and act freely in the political arena. 

When working with the concepts of party autonomy and freedom, it is necessary to make a distinction regarding the exercise of this prerogative. On the one hand, we have the autonomy of the national, state, and municipal directorates in relation to third parties, and, on the other hand, we have internal autonomy.

In other words, we can highlight the independence, to some extent, of regional and federal political groups in relation to each other regarding obligations undertaken with third parties, just as we can highlight this guarantee from an intra-party perspective.

The Structure and Internal Organization of Political Parties in the Constitution

According to Article 17, § 1, of the 1988 Constitution, the legislator guaranteed political parties the freedom to define their internal structures and determine the form and duration of their bodies, whether permanent or temporary. The aforementioned article addresses the topic as follows:

Article 17: The creation, merger, incorporation, and dissolution of political parties are free, provided that national sovereignty, the democratic regime, multi-party system, fundamental human rights, and the precepts of party loyalty are safeguarded, in addition to other principles established in the Constitution.

(...)

§ 1. Political parties are guaranteed autonomy to define their internal structure and establish rules regarding the selection, formation, and duration of their permanent and temporary bodies, as well as their organization and operation, and to adopt the criteria for selection and the regime of their coalitions in majority elections, with their formation prohibited in proportional elections, without mandatory linkage between candidacies at the national, state, district, or municipal levels, and their statutes must establish rules of discipline and party loyalty.

We can divide the aforementioned constitutional provision into several facets to be analyzed: (i) structure, organization and internal functioning; (ii) party loyalty; and (iii) strategic and political decisions linked to the choice of coalitions and alliances.

This guarantees the freedom of political parties to form, provided they pay attention to: preserving democracy, multi-party systems, and fundamental rights.

The Constitution mentions the issue of party loyalty, which was subsequently regulated, and is an important principle in the Brazilian electoral system. This party loyalty ensures that the mandate belonging to the party is not distorted by practices that lead the parliamentarian to change parties without legitimate justification, under penalty of losing their position.

Party autonomy, while guaranteed, is not absolute. Parties must respect the constitutional principles dictated in the aforementioned norm, such as (i) internal democracy, guaranteeing the participation of members in decisions; (ii) the non-use of paramilitary organizations, which could compromise the democratic regime; and (iii) transparency in the rendering of accounts to the Electoral Court.

In short, party autonomy is limited, to a certain extent, by entrenched clauses provided for in the Federal Constitution.

It is important to highlight that the Constitution introduced the novelty that political parties would now have private legal personality, since, " in Brazil, until the promulgation of the 1988 Constitution, political parties, according to Law 5.682/71, were considered public legal entities ."

One of the most emblematic rulings of the TSE (Superior Electoral Court) on this topic is Consultation No. 1.407/2007, authored by Minister Ayres Britto, which established the understanding that political parties are similar to associations. 

In a section of the summary, the following comparison is extracted, reinforcing the established thesis: " every public agent is a person before being an agent, a political party is an association before being a party ".

At the same time, the Minister applies the rules relating to associations to the functioning of political parties, especially freedom of association, minimal intervention, and the prohibition of meetings for activities of a military nature:

"As a form of association, every political party is constituted by a formal gathering of people from the world of being to compose another reality, abstract or ideal, called a 'legal person'. Legal person or plural person. Collective. Not according to the list found in items I to V of article 44 of the Brazilian Civil Code, but as an expression of the individual right that our Constitution vocalizes in this way: 'freedom of association for lawful purposes is absolute, except for those of a military nature' (item VII of article 5)."

During the hearing regarding Political Party Registration 2978239/DF, Minister Tarcísio Carvalho highlighted that the understanding that party autonomy is absolute has long been superseded; on the contrary, it must be guided by the values ​​and rules stemming from the democratic regime and the representative system, as well as by observance of the fundamental rights guaranteed by the Constitution.

Autonomy of associations in relation to third parties.

Regarding the autonomy of party directorates in relation to third parties, it is important to provide a legislative overview of the topic.

Anticipating the possibility that suppliers might not receive the amounts agreed upon with a candidate's election campaign, in 2008, Article 15-A was included in the Political Parties Law (Law No. 9.096/95), which stipulated that the party organ that caused the debt was exclusively responsible for settling it. 

In 2009, with the enactment of Law No. 12.034/09, labor debts were included in the wording of Article 15-A of said Law. 

At the same time, Law No. 12.034/09 amended the text of the Elections Law (Law No. 9.504/97), including paragraphs 3 and 4 in its article 29, which transfer the responsibility for campaign debts of a party's candidates to the party leadership to which they are linked.

Paragraph 2 of the aforementioned legal provision establishes the penalty to be imposed on the board that fails to receive the submitted financial statements, which are eventually considered not submitted/submitted with reservations, thus preventing the elected candidates from receiving their diplomas.

Although the wording of Article 29 and its paragraphs is clear, the issue was brought before the Supreme Federal Court in Declaratory Action of Constitutionality (ADC) No. 31-DF to analyze the constitutionality of Article 15-A of the Law of Political Parties, as amended by the 2009 Electoral Mini-Reform.

Supreme Court decision on the autonomy of party directorates.

On September 22, 2021, the aforementioned action was deemed admissible, recognizing the constitutionality of dividing responsibilities among the municipal, state, and national directorates of each party, in order to prevent party leadership bodies with no direct link to the aforementioned expense from being unduly held liable. 

At the time, the Public Prosecutor's Office, represented by Attorney General Augusto Aras, understood that the party directorates are not subordinate to each other in matters of an internal nature, since all units of parties duly organized and registered with the TSE (Superior Electoral Court), with legal and electoral capacity, enjoy the constitutional autonomy conferred by article 17. 

According to Aras, extending responsibility for the conduct of municipal or state bodies to the national body would encourage reckless management.

In this sense, the Supreme Court recognized the constitutionality of article 15-A of the Law of Political Parties, making it impossible for a debt to affect other party organs, different from the one that incurred the obligation.

It is worth noting that other cases concerning this topic have already been judged by the panel of the First and Second Chambers of the Supreme Federal Court, this time in concrete constitutional review. 

As can be seen, party autonomy is an essential pillar of the Brazilian democratic system, as it guarantees the free creation and operation of political parties without state interference, while maintaining mechanisms of control, transparency, and oversight to prevent abuses. 

The Constitution, in guaranteeing this autonomy, seeks to balance the freedom of political parties with the need to preserve the democratic regime and fundamental rights.

Conclusion

When we discuss political parties, we are dealing with the exercise of democracy in a collective way, based on the association between individuals who align themselves on issues of a political nature.

In this sense, any external intervention that is inconsistent with intra-party norms has been considered a violation of party autonomy.

As established by federal legislation on electoral matters and the jurisprudence of the Supreme Federal Court and the Superior Electoral Court, it is evident that party autonomy has, as one of its limits—and this is the main one—the impossibility of violating the federal pact and the entrenched clauses of the Federal Constitution.

You may also be interested in the article: The influence of the Supreme Federal Court on the agenda of the National Congress.

BIBLIOGRAPHIC REFERENCES

ALVIM, Frederico Franco. Course on Electoral Law. 2nd ed. Curitiba: Juruá, 2016, p. 216.

BARROS, Francisco Dirceu. Course on electoral procedure. 3rd ed., Rio de Janeiro: Elsevier, 2014, p. 40.

BRAZIL. Superior Electoral Court. Political Party Registration 2978239/DF, Rapporteur Justice Tarcisio Vieira De Carvalho Neto, Judgment of 10/15/2020, Published in the Electronic Official Gazette 221, dated 11/03/2020.