Abstract
The purpose of this article is to analyze the barrier clause approved in Constitutional Amendment 97/2017, which restricts the minority political parties's access to the public share funding and to the free political 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 fifteen federal representatives distributed in one third of the States. This article also investigates the historical incidence of the electoral perfomance clause in Brazil, using classical bibliographical review on political 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 statistical 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 article concludes that constitutional amendment 97/2017, in the part that amends the third paragraph of article 17 of the national Constitution, represents a violation of Brazilian democracy as far as this has elected the electoral system of proportional representation, political pluralism, multiparty system and equal opportunities as fundamental principles. Therefore, the amendment would be jeopardizing the survival of minority parties, premise of the Democratic Rule of Law in favour of the established power.
Keywords:
barrier clause; political parties; pluralism; multiparty; democracy