## Facts

- Certain Brazilian political parties filed two direct actions of unconstitutionality (ADIs 1351 and 1354) before the Brazilian Supreme Federal Court (STF), challenging provisions of Statute No. 9.096/1995 (Political Parties Law).
- In ADI 1351, the applicants included the Brazilian Communist Party (PCdoB) and the Democratic Labor Party (PDT), with the Popular Socialist Party (PPS) participating as an interested party; in ADI 1354, the applicant was the Social Christian Party (PSC).
- The respondents were the National Congress and the President of the Republic, as the organs responsible for enacting and enforcing the challenged federal statute.
- The primary challenged provision was Article 13 of Statute No. 9.096/1995, which imposed a “barrier clause” requiring a party to obtain at least 5% of valid votes nationwide in elections for the Chamber of Deputies to enjoy full parliamentary functioning.
- Article 13 also required geographic distribution: the vote total needed to be spread across at least one-third of the states, with a minimum of 2% in each of those states.
- The challenged scheme tied institutional advantages to meeting the threshold, including participation in the national Party Fund and access to free party advertising time on radio and television.
- Although enacted in 1995, the statute set the threshold’s practical effects to begin with the legislature seated in 2007, after the 2006 elections.
- The applicants alleged that, in the 2006 electoral environment, only seven of the 29 registered parties would meet the 5% requirement; as drafted, the statute would direct the Party Fund and broadcast time almost entirely to those qualifying parties.
- The STF heard ADIs 1351 and 1354 together in plenary session and resolved the merits in a single joint judgment.

## Issues

1. Whether an ordinary federal statute may condition a party’s parliamentary functioning, Party Fund participation, and free radio/television advertising time on achieving a 5% nationwide vote threshold with state-distribution requirements.
2. Whether the “barrier clause” in Article 13 and its connected restrictions violate the 1988 Constitution’s protections for political pluralism, party freedom and autonomy, and equal participation in representative democracy.

## Decision

- The STF granted the actions and declared unconstitutional Article 13 of Statute No. 9.096/1995 (the 5% threshold rule).
- The Court also invalidated connected provisions that operationalized the threshold’s effects on Party Fund distribution and free broadcast time, including portions of Articles 41, 48, 49, 56, and 57 identified in the dispositive ruling.
- The Court rejected the challenge to one specific statutory item (Article 56, II), leaving it in force.
- To avoid a regulatory gap in party and electoral rules, the Court allowed certain transitional effects to remain operative for a limited period, pending new legislation.
- The judgment was unanimous in the plenary session.

## Legal Principles

- Political pluralism and the constitutional status of political parties limit the legislature’s ability, by ordinary statute, to deny or empty parliamentary functioning for parties that have obtained representation through elections.
- Conditioning meaningful access to public political resources (such as Party Fund allocations and free radio/television time) on a high nationwide threshold may violate constitutional guarantees when it effectively excludes smaller parties from competing on minimally equal terms.
- Rules that indirectly reduce the representational effect of votes cast for candidates elected under the existing electoral system can conflict with the constitutional requirement of equal democratic participation.
- The Constitution protects party freedom and autonomy; statutory designs that concentrate parliamentary rights, funding, and communication channels in a small number of parties at the expense of others are incompatible with that protection.
- In abstract constitutional review, when striking down core electoral-party regulatory provisions, the STF may preserve limited temporary effects to avoid a legal vacuum while awaiting legislative action.

## Conclusion

In ADIs 1351 and 1354, the STF held that the Political Parties Law’s 5% nationwide “barrier clause,” together with its linked restrictions on parliamentary functioning, Party Fund participation, and free broadcast time, was unconstitutional because it conflicted with the Constitution’s commitments to political pluralism, party freedom and autonomy, and equal democratic representation, while leaving a narrow remainder and temporary effects to prevent a gap until Congress enacted new rules.


Five Percent Electoral Threshold Case, Brazilian Communist Party and Others v. National Congress and the President of the Republic, Direct Action of Unconstitutionality no. 1351 and 1354 (2007)