Imagine that you intend to run for president of the Republic, governor of a state, or mayor of a municipality. During the campaign, you can choose to run either as an ordinary candidate or as the current holder of the office you seek. Which option would you choose? The answer is intuitive: your chances of success are usually, although not always, greater if you are running for reelection. This is a well-known phenomenon in elections: the incumbency advantage. Less well known, and often neglected, is the way electoral rules can contribute to mitigating or amplifying such an advantage. Recent presidential elections in Brazil and judicial decisions, including rulings on the current presidential election, illustrate how a country’s legal structure interacts with the electoral advantage incumbents enjoy.

Reelection and Requirement to Vacate Office

The Brazilian Federal Constitution was enacted in 1988. Its original text did not provide for the reelection of heads of the Executive Branch. It recognized, however, a general advantage enjoyed by heads of the Executive in electoral contests and presented an antidote. Article 14, §6, required presidents, governors, and mayors to resign from their offices up to six months before an election in order to be eligible to run for another elective office. The requirement to vacate office in order to retain eligibility (called desincompatibilização) sought to prevent heads of the Executive Branch, who are in charge of directing and administering the state apparatus, from using the public structures and resources to benefit their own candidacies.

In 1997, however, the system changed. Then-President Fernando Henrique Cardoso enacted Constitutional Amendment nº 16, allowing heads of the Executive to run for a second consecutive term in office. This change gave rise to an important constitutional question. The original scope of the requirement to vacate office referred explicitly only to attempts to run “for another elective office”, as heads of the Executive were not allowed to run “for the same office” a second consecutive time. After the enactment of CA nº 16, however, did the requirement also apply to incumbent attempts to win reelection?

The issue was considered by the Supreme Court in 1998 and in 2020, within the same constitutional proceeding. On both occasions, the Court held that heads of the Executive Branch seeking reelection were not subject to the requirement to vacate office. Due to the absence of an express constitutional provision, the Court gave precedence to the principle of administrative continuity. It reasoned that Brazilian electoral courts and electoral legislation should curb any undue advantage enjoyed by incumbents, including with mechanisms to restrain abuse of power and ensure free and fair elections in the country.

The resulting regulatory framework was the coexistence of two regimes concerning the requirement to vacate office. To run for another elective office, incumbent presidents, governors, and mayors must resign from their offices six months before an election. However, the requirement does not apply when running for the same elective office. Thus, if a governor or mayor decides to run for the presidency, he or she must resign from office in due time. Yet, if an incumbent decides to run for reelection, he or she can do so while remaining in office.

Reelection and the Incumbency Advantage

The current constitutional framework on the requirement to vacate office creates the possibility that incumbent presidents, governors and mayors running for reelection may attempt to tilt the electoral playing field. While some attempts may be more blatant, others are more subtle. A recurring practice in Brazilian presidential elections has been that reelection candidates announce increases in government spending and social subsidies during the electoral period. In 2022, for example, former President Jair Messias Bolsonaro enacted, less than three months before the election, a constitutional amendment that increased by R$ 200 (approximately US$ 39) the amount provided by the country’s most important cash-transfer social welfare program. Similarly, in 2026, President Luiz Inácio Lula da Silva announced, less than a month before the first round of the election, a 15% increase in the same program.

Both measures sparked intense debates over their legality. They lie at the intersection of the legitimate exercise of governmental power and the risk of incumbents abusing that power to gain an unfair electoral advantage. For this reason, in Brazil, Article 73 of the Elections Law establishes a list of prohibited conduct for public officials during electoral campaigns that may affect equality of opportunity among candidates. Among these provisions, §10 prohibits, in an election year, the free distribution of goods, funds, or benefits by the Public Administration, “except in cases of public calamity, state of emergency, or social programs authorized by law and already included in the budget for the previous fiscal year.”

The purpose of the provision is precisely to prevent heads of the Executive from using the Public Administration to influence the electoral contest, thereby unduly tilting the playing field in favor of their own candidacy or that of allied parties and candidates. However, because it provides exceptions for, among other things, social programs authorized by law and already included in the budget for the previous fiscal year, electoral jurisprudence has had to address its proper interpretation in concrete cases.

Inflation Adjustment or Electoral Gift?

In the case of the most recent increase implemented by President Luiz Inácio Lula da Silva, the Office of the Attorney General of the Union consulted the Supreme Court regarding the legality of the measure. In an individual decision, Justice Gilmar Mendes argued that the measure did not violate Article 73, §10, of the Elections Law, as it had a prior statutory basis and was necessary to ensure the continuity and effectiveness of the public policy. The measure would be regarded unlawful only if the 15% adjustment had amounted to an effective increase in the payouts to program beneficiaries or expanded the pool of beneficiaries. However, as it merely adjusted for inflation the amount paid to program participants (calculated at 15,04% between March 2023 and August 2026), it was regarded by Justice Mendes as entirely lawful.

At first glance, Justice Gilmar Mendes’s interpretation of Article 73, §10, of the Elections Law appears sound. Yet, on closer inspection, it reveals the subtle relationship between electoral rules and the electoral advantage of incumbents. To understand it, it is necessary to distinguish between three distinct scenarios.

First, imagine that the adjustment in the payouts had been implemented in the first half of 2026. The measure would be lawful under Justice Gilmar Mendes’s standards, as the increase merely restored the program’s values pursuant to prior statutory authorization. Although this could give the incumbent an electoral advantage, as it would allow them to benefit from the popularity of the adjustment to garner votes in the coming contest, the measure would nevertheless be legally and politically justified for the reasons discussed above, particularly the need to ensure the continuity and effectiveness of the social program.

Imagine now a second scenario. The adjustment was implemented in the second half of 2026, just a few weeks before the election, but the head of the Executive is not running for reelection. In this scenario, the adjustment has the potential to affect the electoral contest by providing political capital to allied parties and candidates of the incumbent. Yet, since the president is not running for reelection (nor for another elective office, as otherwise they would have had to vacate the office), the measure would lack any direct connection with a potential incumbency advantage. Any evidence that the measure reflected an attempt by the head of the Executive to tilt the electoral playing field in favor of third parties could be investigated by electoral courts through procedural mechanisms aimed at combating abuse of power.

Lastly, imagine a third scenario, in which the adjustment was implemented one month before the election by an incumbent running for reelection. This is substantially different from the previous two scenarios. The measure was not adopted during an election year by a merely potential candidate (as in the first scenario), nor was it adopted by someone with merely a potential indirect interest in the outcome of the election (as in the second scenario). Instead, it was adopted during the electoral period by an incumbent actively campaigning for reelection. In Brazil, such a scenario is only possible because the constitutional requirement to vacate office does not apply to incumbent candidates, as discussed above.

In this last scenario, even if the measure technically constitutes merely an adjustment for inflation rather than a real increase in the program’s payouts, it may be perceived by voters – and even by the incumbent themselves – as an actual increase in the benefit. In electoral law, however, how a measure is perceived by voters may be as relevant as, or even more relevant than, its formal legal characterization. The connection between the adjustment and the potential electoral benefits enjoyed by an incumbent seeking reelection is direct. Here, the rationale underlying the ordinary interpretation of Article 73, §10 – the need to ensure the continuity and effectiveness of social programs – is attenuated, since the measure could have been adopted well before the election period or could be adopted immediately after it.

Towards Rules for Incumbents

This scenario illustrates something interesting about the list of conduct prohibited by Article 73 of the Brazilian Elections Law. Its prohibitions apply to any public official, whether or not an incumbent running for reelection. The scenarios analyzed above, however, raise the question of whether it should more specifically recognize a list of prohibited conduct applicable only to heads of the Executive Branch during the period when they are actively running for reelection. After all, such candidates usually enjoy, depending on other contextual variables, a competitive advantage and are not required to resign from office prior to the election (Jair Bolsonaro was the first sitting president to lose a reelection bid since 1988).

Recent decisions by Brazilian courts have moved tentatively in this direction. The Supreme Court struck down former President Jair Bolsonaro’s attempt to increase the payouts months before the 2022 elections. Unlike President Lula’s recent attempt, Bolsonaro’s measure had no prior statutory basis and was established via constitutional amendment. On that occasion, Justice Gilmar Mendes emphasized that, given the circumstances, the electoral principle of equality of opportunity should take precedence over the principle of administrative continuity.

Similarly, in a recent electoral investigation against former President Jair Bolsonaro, the Superior Electoral Court established conditions for the conduct of electoral livestreams or participation in podcasts from official government residences by presidents, governors, and mayors running for reelection. Among other conditions, the Court held that the broadcasting of a livestream, podcast, or similar format is permitted only if (a) it takes place in a neutral environment, free of official symbols or other elements associated with public power or the office held, and (b) without the use of material resources or services of the public administration.

Outlook

Both decisions represent important steps in the direction suggested here: using the legal structure to mitigate, rather than reinforce, the incumbent’s competitive advantage in an electoral contest. Still, they represent just the beginning of a complex debate. The challenge is to distinguish properly between legitimate campaign promises and acts of government, on the one hand, and electoral measures designed to give incumbents an unfair advantage, on the other. Although punishing clearly abusive practices through the electoral justice system is one possible response, this approach has some shortcomings. It is usually ex post facto, relies on the indeterminate doctrine of abuse of power, and may require courts to unseat powerful incumbents, particularly after their reelection. A second alternative is to develop a set of rules that specifically restricts certain government actions during the period in which an incumbent is running for reelection. Such rules could impose stricter limits and conditions on government decisions involving different forms of increased public expenditure, particularly executive orders that require only presidential approval, which, in the electoral context, could be perceived as electoral gifts rather than as part of the ordinary exercise of executive authority. They could also empower courts to intervene ex ante to prevent such decisions from being adopted or taking effect during the campaign period.