Submitted by Pedro Marques Neto (marquesnetop@gmail.com) on 2018-06-15T16:59:07Z No. of bitstreams: 1 Dissertação FGV - Pedro Marques Neto - Depósito Final.pdf: 903571 bytes, checksum: 72ae2bf4560cbdf52da5d6aaade0039b (MD5) / Approved for entry into archive by Katia Menezes de Souza (katia.menezes@fgv.br) on 2018-06-15T18:30:23Z (GMT) No. of bitstreams: 1 Dissertação FGV - Pedro Marques Neto - Depósito Final.pdf: 903571 bytes, checksum: 72ae2bf4560cbdf52da5d6aaade0039b (MD5) / Approved for entry into archive by Isabele Garcia (isabele.garcia@fgv.br) on 2018-06-15T21:15:20Z (GMT) No. of bitstreams: 1 Dissertação FGV - Pedro Marques Neto - Depósito Final.pdf: 903571 bytes, checksum: 72ae2bf4560cbdf52da5d6aaade0039b (MD5) / Made available in DSpace on 2018-06-15T21:15:20Z (GMT). No. of bitstreams: 1 Dissertação FGV - Pedro Marques Neto - Depósito Final.pdf: 903571 bytes, checksum: 72ae2bf4560cbdf52da5d6aaade0039b (MD5) Previous issue date: 2018-05-23 / Esta pesquisa analisa e compara os argumentos empregados pelas supremas cortes de Brasil e Estados Unidos a respeito da constitucionalidade de medidas legislativas que permitem, limitam ou vedam o financiamento privado de campanha eleitoral. A judicialização do tema coloca problemas de duas ordens: (a) determinar quais circunstâncias legitimam a intervenção das supremas cortes na organização do processo político-eleitoral; e (b) estabelecer como as supremas cortes deveriam raciocinar e como elas têm raciocinado ao supervisionarem a organização do sistema democrático. No cerne dessas questões encontram-se os contornos da relação entre jurisdição constitucional e política em termos do papel a ser desempenhado pelo Poder Judiciário no desenho institucional da democracia. Este trabalho sustenta que cortes constitucionais estão legitimadas a intervir na organização da democracia para minimizar danos democráticos causados por desenhos institucionais que promovam a dominação na esfera político-eleitoral, conforme modelo proposto por Yasmin Dawood. O argumento é de que cortes constitucionais devem raciocinar a partir de uma concepção estrutural dos direitos democráticos focada na minimização de danos democráticos, em contraposição a concepções individuais dos direitos democráticos ou concepções estruturais focadas na maximização de bens democráticos. Assim, contrasto a abordagem proposta pelo modelo antidominação com as práticas das supremas cortes de Brasil e Estados Unidos. Enquanto a Suprema Corte dos Estados Unidos raciocina na linha da abordagem proposta pelo modelo de proteção de direitos individuais, sustento que o Supremo Tribunal Federal raciocina na linha da abordagem proposta pelo modelo de maximização de bens democráticos. Argumento que, em ambos os casos, os modelos adotados produzem equívocos nas decisões das cortes sobre a constitucionalidade do financiamento privado de campanhas eleitorais, sugerindo, então, respostas alternativas com base no modelo antidominação, mais deferentes, embora não submissas, às escolhas políticas do Poder Legislativo. / This research analyses and contrasts the arguments employed by the Brazilian and American constitutional courts on the constitutionality of campaign finance regulation. The judicialization of campaign finance disputes poses two issues: (i) first, to determine under which circumstances judicial intervention on the organization of electoral politics is legitimate; (ii) second, to lay down how constitutional courts should reason when - and how they have been reasoning about - they oversee the organization of democratic politics. These issues have at their core the relationship between constitutional jurisdiction and democratic politics in terms of the role displayed by the Judiciary in the (institutional) design of democracy. This research claims that constitutional courts can legitimately intervene in the organization of democracy in order to minimize democratic harms caused by institutional designs that promote domination in the electoral sphere, in accordance with the antidomination model of judicial oversight of democracy proposed by Yasmin Dawood. My argument is that constitutional courts should develop a structural conception of democratic rights focused on the minimization of democratic harms, in contrast with individual conception of such rights or structural conceptions focused on the maximization of democratic goods. Thus, I contrast the antidomination model with the concrete experience of the Brazilian and American constitutional courts. While the Supreme Court of the United States’ approach focuses on the protection of individual rights, I claim that the Supreme Federal Court of Brazil’s approach focuses on the maximization of democratic goods. I claim that both approaches distort the judicial oversight of campaign finance regulation by the Brazilian and the American constitutional courts and so I propose alternative answers based on the antidomination model, according to which courts are more deferential, though not submissive, to the political choices of the legislative body.

No description available.

This thesis is an examination of whether the “egalitarian model” for political finance that has been established by the Supreme Court of Canada, other Canadian courts and legal scholars and commentators is actually egalitarian and has been applied consistently (in Chapter 2), and whether Canada’s political finance system measures up to the Court’s model (in Chapters 3 and 4), and how it could be changed to comply with a more egalitarian model that would also be ethical in terms of preventing even the appearance of a conflict of interest (in Chapters 6 and 7). Chapter 1 sets out a general theoretical framework for evaluating the Supreme Court’s egalitarian model, and I develop and set out a more egalitarian model in Chapter 5. In the Chapter 8 conclusion, I summarize the findings and propose structural and positive Charter rights court cases as a way forward, given that the platforms federal politicians and political parties from the past few elections, and the reports of parliamentary committees, have not called for the most of the changes I propose are needed to make the system more egalitarian. The thesis addresses political finance broadly defined as money, property, use of property, gifts, services, favours and other benefits and advantages provided to nomination contestants, election candidates and political party leadership contestants, electoral district associations, political parties, politicians and their staff during election campaign periods and also during the time period between elections, including support provided by “third-party” interest groups, lobbyists and other individuals, and by media outlets. In Chapter 3, I examine the rules that apply to each of these political actors in the areas of registration, donations and loans, spending, public subsidies and disclosure (including auditing), including a separate section on the role of media and social media. Given that political systems include providers (whether as contractors or donors) of money, property and the use of property (including gifts and other benefits and advantages), and services (including favours) to politicians, and given that providers could be lobbyists, I also examine in Chapter 4 the rules concerning gifts, favours and other benefits and relations between voters, lobbyists and politicians, and concerning the conflicts of interest that can be caused by these activities. Other than disclosure and auditing, I do not cover enforcement measures or systems in any of the areas. However, I do note at various points in the thesis that, as several studies and history have shown clearly, effective enforcement measures, policies and practices are key to ensure compliance with such rules. The main contentions that I make are: that the key principles of the Supreme Court of Canada’s egalitarian model have not been consistently upheld by the Court and other Canadian courts, that Canada’ federal political finance system does not fulfill the Court’s egalitarian model, and that several changes are needed to make the model and the system more egalitarian, only a few of which have been addressed by Canadian courts and scholars to date. These contentions counter the claim made in the Court’s rulings, and by many scholars and commentators, that Canada’s political finance system has developed and is based on an egalitarian model. In Chapters 5 through 7, I develop a more egalitarian model and set out specific proposed changes to make Canada’s systems more egalitarian, both in theory and in practice, within the framework of a democratic good government political system (meaning a system with separation of powers, elections, human rights protections, rule of law etc.) and a mixed market economy with both public sector institutions and private sector businesses, unions and other organizations (cooperatives, non-profit, religious organizations etc.). Both the model and many of the specific proposed measures should also be applicable in other jurisdictions with different political systems and economic systems. The framework of 19 standards for a more egalitarian model that I develop in Chapter 5 is based mainly on John Rawls’ theory of justice, but modified and expanded to incorporate critiques of Rawls’ theory, other legal principles and democratic good government theories, international standards, government ethics case law, behavioural psychology studies, and evidence of the public’s expectations. The 201 proposals I make in Chapters 6 and 7 for specific changes to the rules of Canada’s current federal political finance system (again, broadly defined), are based on the model, measures from various jurisdictions in Canada and elsewhere, and international standards. I am not claiming that these changes would definitely result in “better” or more “public interest” policy-making decisions, however that would be determined. I am only contending that the framework I develop is more egalitarian than the Supreme Court’s model, and that the rule changes I suggest would make the political finance, gifts, favours, conflict of interest and lobbying systems align with the more egalitarian model I propose. I primarily use the doctrinal research methodology by examining scholarly research and, given I also examine aspects of the laws of Canadian provinces and municipalities, and other countries, I also deploy some aspects of the comparative methodology (most fully when comparing Canada’s federal rules to Quebec’s rules, and somewhat when comparing Canada’s rules to the U.S. and U.K. rules). The research results from these sources inform the conclusions I set out in my thesis. The thesis advances knowledge in the following areas: 1. It is the first complete evaluation of the federal Canadian political finance, gifts-favours-benefits, conflict of interest and lobbying rules and systems in their current state as of May 2023, based on the findings of extensive new research into key parts of these systems; 2. It sets out the first comprehensive analysis of how the Supreme Court of Canada’s egalitarian model has been applied by the Court and other courts inconsistently, in ways that do not comply with the model; 3. It sets out the first analysis of how Canada’s political finance statutory rules, again defined broadly to include rules that apply to donations, loans, gifts, services, favours and other benefits, lobbying and conflicts of interest, do not comply with the Supreme Court’s egalitarian model, based in part on new statistical research set out in 28 charts, and; 4. It sets out a new theoretical framework based on 19 standards, and a comprehensive set of 201 innovative proposals for changes to make Canada’s political finance rules (again defined broadly) more egalitarian, and more ethical in terms of preventing conflicts of interest. Five comprehensive studies of key parts of the political finance, ethics and lobbying systems are also proposed to gather key information needed to inform the design of some of the 201 proposed changes. Eight structural and positive Charter rights cases are also proposed to challenge current rules that do not comply with the egalitarian model.