Argentina’s overhaul of its electoral legislation last year dramatically re-shaped the nature of the campaign for the October 2011 presidential elections. The Ley de Democratización de la Representación Política, la Transparencia y la Equidad Electoral (Law of Democratization of Political Representation, Transparency and Electoral Equity) has many laudatory features that in principle should (at least in the long term) improve the functioning of the Argentine democratic system.
But the primary motivation of the reform was to improve the chances of victory by either former President Néstor Kirchner (2003–2007) or President Cristina Fernández de Kirchner in the 2011 presidential contest. When the law was drafted Néstor Kirchner was the odds on favorite to be the government's candidate. Nevertheless, his candidacy was not set in stone. If in July 2011 Kirchner's calculations had indicated Cristina Fernández de Kirchner offered a better chance of victory, then she would have been the standard bearer. However, after Néstor Kirchner's unexpected passing on October 27, 2010, the role of candidate fell exclusively to Cristina Fernández de Kirchner. Still it is too early to tell if Cristina Fernández de Kirchner will decide to seek re-election in Néstor Kirchner's absence. However, at present, early signals suggest she plans to be the government's candidate next year.
Law 26.571, signed by President Cristina Fernández de Kirchner on December 11, 2009, was billed as the answer to the persistent calls for reform over the past 20 years by politicians, academics and civil society leaders across the political spectrum. Reformers had long criticized the lack of popular participation in the selection of the parties’ candidates for public office, the exorbitant level of private expenditures in campaigns and the excessive number of minor parties. The new law attempts to address many of these challenges by enhancing intraparty democracy, limiting the role of private money in campaigns and reducing the degree of party system fragmentation.
The law was rushed through Congress in less than six weeks as the government raced to get a last legislative victory before its absolute majority of seats in both houses vanished on December 10, 2009.
In June of that year, dissatisfaction with Fernández de Kirchner’s presidency, along with growing economic problems, had led to the Kirchners’ defeat in midterm legislative elections. Néstor Kirchner was bested by Francisco de Narváez in the province of Buenos Aires Chamber of Deputies election, and anti-Kirchner forces won approximately 60 percent of the vote throughout the country.
The political result: once the new Congress took power, President Fernández de Kirchner would have to govern the last two years of her term with the support of just slightly more than 100 of the 257 Chamber deputies, and with a Senate where pro-Kirchner forces were better situated, but still shy of an absolute majority.
Law 26.571 was one of a series of laws passed in the final five months of the government’s reliable legislative majority that would have little chance of achieving approval in the new Congress. In contrast to approaches to political reform recommended by organizations such as the Inter-American Development Bank, the International Institute for Democracy and Electoral Assistance (IDEA) and the UN, which generally emphasize inter-party dialogue and consensus-building, the law shaping the presidential contest was designed to fracture the opposition and hand Néstor Kirchner a first-round victory.
For the Kirchners the most likely path to victory was by winning at least 40 percent of the valid vote (with a minimum 10 percent gap between himself and the second-place candidate) in the voting on October 23, 2011. They realized that if either of them were forced into a second round, it would likely mean defeat and the end of the Kirchner era. But since even the most optimistic projections place their potential first-round vote ceiling near the 40 percent mark, it was clear that every vote would be extremely valuable for the Kirchners. The government knew this and used the political reform law to limit the minor-party candidates who could undermine the chances of victory.
For the first time in Argentina, all political parties or alliances of parties are now required to hold an open primary (i.e. all voters are eligible to vote in any single party or alliance’s presidential primary) on August 14, 2011. The primaries will be simultaneous and voting compulsory, as in Argentina’s general elections. Based in part on the experience of the province of Santa Fe, where similar legislation has been in force for provincial elections, turnout in the 2011 primary is expected to reach 65 to 75 percent.
To be able to run a presidential candidate in the general election, the number of votes cast in a party or alliance’s presidential primary must be at least 1.5 percent of those cast for all primary candidates for the office of president. (The Kirchners initially proposed a 3 percent threshold but relented in the face of dissent from many of their allies in Congress and civil society). The 1.5 percent threshold creates a barrier to entry that only four to six parties or alliances will surpass in 2011—a significant drop from the 14 and 18 parties or alliances that ran presidential candidates in 2007 and 2003 respectively. By limiting the presence of minor party candidates, the law reduces the fragmentation of the presidential vote, making it easier for Cristina Fernández de Kirchner to surpass the 40 percent mark and win in the first round.
For example, consider the 2007 election, where six percent of the vote was won by nine candidates who most likely would not have been able to surpass the new 1.5 percent primary threshold. In the absence of these candidates, and assuming these votes would have been proportionally distributed among the five presidential candidates who would have cleared the primary hurdle, Cristina Fernández de Kirchner would have garnered 48 percent of the vote (instead of 45).
In 2011, the ideal scenario for Cristina Fernández de Kirchner is that some of the votes that would have gone to excluded minor party candidates transfer to her—a realistic assumption given the math and the ideological profile of these candidates. However, she would also gain if the supporters of barred candidates opt to cast a null or blank vote or simply fail to show up at the polls. This would mean a reduction in the raw number of votes she needs to achieve 40 percent.
This portion of the law benefits the Cristina Fernández de Kirchner in two additional ways. First, she has guaranteed herself the nomination of the Partido Justicialista (PJ, Peronist)-dominated Frente para la Victoria (FPV) alliance either without competing against an opponent in a primary, or competing only against a candidate who is certain to lose. In contrast, the two largest opposition alliances (particularly the pan-Radical coalition, but also potentially the dissident Peronists) run the risk of a divisive primary that saps financial resources and creates ill will among leaders and followers. This could result in the defection of party elites and voters in the general election.
Second, the law potentially keeps any opposition coalition (and the public) from knowing who its presidential candidate will be until two months prior to the general election—a reality that may weaken opposition candidates vis-à-vis the Fernández de Kirchner candidacy.
Another political reform set to be implemented next year is the requirement that alliances among political parties for all federal offices be formed no later than 60 days prior to the mandatory primary. As a result, parties must choose their alliance partners prior to knowing the alliance’s presidential candidate in the event that more than one candidate is vying for that post. This portion of the law was another great advantage for the Kirchners.
First, it virtually ensures that the candidate of the dissident Peronists will not compete against Cristina Fernández de Kirchner in the PJ/FPV (Peronist) primary.
To achieve this, she will use her control of the PJ party organization to establish alliances with left-wing parties that have poor relations with the dissident Peronists. At the same time, she will eschew alliances with more centrist and center-right parties who represent the dissidents’ natural allies.
Combined with the belief among dissident Peronists that the government will use its control of the PJ machinery to its advantage in the primary process, the law virtually guarantees that Cristina Fernández de Kirchner will not need to worry about any credible intraparty opposition for the PJ nomination. It also means that there will be a dissident Peronist presidential candidate in the general election. The result will force a split in the anti-Kirchner (Peronist and non-Peronist) vote that will ensure a gap of at least 10 percent between Fernández de Kirchner and the first runner-up.
Second, given personal conflicts among non-Peronist leaders, forcing alliances to declare themselves before selecting candidates will also complicate the alliance formation process in the pan-Radical opposition. In 2009, the anti-Kirchner forces united as the Acuerdo Cívico y Social, comprising the Unión Cívica Radical (UCR), the Coalición Cívica (CC) of 2007 presidential candidate Elisa Carrió, the Partido Socialista (PS), and other minor groupings. The leading pan-Radical candidate, Vice-President Julio Cobos, is a former UCR governor who broke with the party to be Fernández de Kirchner’s running mate in 2007, but became estranged from the Kirchners in July 2008 after casting a tie-breaking vote in the Senate against a bill backing agricultural export taxes imposed by the president. Since then, Cobos’ star has fallen, though he remains one of this sector’s two viable presidential candidates.
But for the pan-Radical alliance, Cobos’ past ties to the Kirchners has meant that Carrió refuses to join an alliance with him as its presidential candidate. However, if Carrió rejects an alliance with the UCR and PS and runs for president alone, she will siphon off between 5 and 10 percent of the vote and severely undermine the chances of a pan-Radical candidate, either Cobos or Ricardo Alfonsín, the son of former President Raúl Alfonsín (1983–1989), obtaining a spot in a runoff against Cristina Fernández de Kirchner. If either Cobos or Alfonsín makes it to the second round, Fernández de Kirchner is virtually certain to lose.
The Uneven Field in Media
Another key component of the 2009 reform is its potential to significantly reduce the role of private money in presidential campaigns. The principal campaign expenditure items in past elections—paid television and radio time—will now be distributed exclusively by the federal government with one-half of all television and radio air time divided equally among candidates and the other half allocated proportionally based on the percentage of the vote received by the candidate’s party or alliance in the preceding Chamber of Deputies election.
This reform, too, is largely a consequence of lessons learned by the Kirchners. In 2009, dissident Peronist Francisco de Narváez used his personal fortune to fund an impressive media campaign to defeat Néstor Kirchner in the province of Buenos Aires legislative elections. That loss made Kirchner aware that the considerable media advantage accrued to him by control of the state could be mitigated by wealthy individuals.
The reform will not affect Fernández de Kirchner's access to the media since she will continue to be able to employ their full arsenal of media weapons—media outlets, advertisements touting governmental achievements, government media events, and government-aligned private media—that come with control of the federal government. In addition, the law places only minimal restrictions on the government’s use of state resources to improve its public image, only prohibiting ads promoting the government’s activities and events 15 days prior to the primary and general election.
All other presidential candidates will have to rely primarily on the state-allocated media time to reach the electorate.
Jockeying for 2011
The reforms contained in Law 26.571 as well as the Kirchner government's activities over the past three years were predicated on two underlying premises. First, the government's 2011 presidential candidate would be either Néstor Kirchner or Cristina Fernández de Kirchner. Second, regardless of who was the presidential candidate, the country's principal powerbroker would continue to be Néstor Kirchner (as has been the case since 2003). While Néstor Kirchner's death did not dramatically alter the first premise (since the candidacies were essentially inter-changeable), it shattered the second, leaving Argentine politics in a state of flux.
At present, all signs are that Cristina Fernández de Kirchner will attempt to continue the Kirchner legacy and seek re-election in 2011. However, it is conceivable that in the absence of the government's unquestioned leader and political operator (i.e., Néstor Kirchner), she will be unable to maintain control over the government's gargantuan and unwieldy political machine whose daily operation consumed nearly every waking hour of Néstor Kirchner's days. When attempting to forecast the 2011 presidential election there are therefore two distinct general scenarios depending on whether or not Cristina Fernández de Kirchner decides over the next few months that she wishes to run for re-election and, if so, whether or not she is able to pilot the Kirchner political ship successfully such that it does not sink and force her to abandon her candidacy prior to August of 2011.
The first, and at present most likely, scenario (upon which the preceding analysis was based) has President Fernández de Kirchner as the government's candidate in October of 2011, joined by between three and five other candidates. One opponent will be either Cobos or Alfonsín from the pan-Radical alliance. This candidate’s share of the vote would be diminished if Carrió ends up running in the general election.
The dissident Peronists’ candidate is the great unknown. Despite the best efforts of their leaders, Senator Carlos Reutemann of Santa Fe province continues to vacillate on whether he will run. If he declares his candidacy, Reutemann would be favored to win due to support among both the Peronist and non-Peronist electorate. Without Reutemann, the dissident Peronists would be in dire straits.
In Reutemann’s absence, the sector’s candidate would possibly be former President Eduardo Duhalde (2002–2003). Other options include Chubut Governor Mario Das Neves, former province of Buenos Aires Governor Felipe Solá, and, conceivably, though increasingly unlikely, Buenos Aires Mayor Mauricio Macri.
Duhalde, while perhaps the candidate most capable of keeping this diverse and unwieldy group together through the general election, has no realistic chance of victory. Macri, claiming it is a Kirchner-orchestrated attack, is under investigation for wiretapping and other espionage related charges. If he is vindicated and survives the impeachment process unscathed, his candidacy is more likely if Reutemann declines to run.
One final candidate is Deputy Fernando “Pino” Solanas, a popular figure among the center-left middle class in the Federal Capital and Buenos Aires province (where 9 percent and 38 percent of the electorate resides respectively), who should win enough primary votes to be placed on the presidential ballot.
Under the second scenario, during the next few months as she fully contemplates her future without Néstor Kirchner, Cristina Fernández de Kirchner will decide on whether to run for re-election. But at some point between February and August, if she fails to maintain adequate control of the government's political machine and is confronted with certain defeat, she may opt to withdraw her candidacy under severe pressure from within and outside her administration. In either case, the most likely beneficiary would be province of Buenos Aires Governor Daniel Scioli, the politician within the Kirchner camp (broadly speaking) who is seen as having the best prospects of victory in 2011. While far from being a diehard Kirchnerista, for Fernández de Kirchner and her inner circle Scioli is their best option for being able to have some potential influence within the next government as well as for limiting their exposure to future prosecution once they leave office (although in Argentina agreements made prior to elections are very frequently abrogated following the election).
Scioli maintains close ties with many dissident Peronists, and his candidacy would quite possibly serve to unify Peronism, bringing most of the Kirchner-aligned Peronists back together with a majority of the dissident Peronists. Peronism, more than anything else, is a philosophy which considers the holding of power to be paramount, with Peronists quick to rally behind a politician if they are viewed as the favorite to become the next President. During the 1990s this supreme leader was Carlos Menem, while for the past six to seven years it was Néstor Kirchner. Scioli's presidential campaign would incorporate a large proportion of the dissident Peronists, such that any candidacy by dissident Peronists remaining outside the fold would be doomed to protest status.
Under this scenario, Scioli's principal opponent in the October election would be either Alfonsín or Cobos. In addition, Solanas would still be expected to run. Finally, there would be potentially two additional candidates, Carrió, and a dissident Peronist protest candidacy, possibly by San Luis Governor Alberto Rodríguez Saá. Within this political context, Scioli would be heavily favored to become Argentina's next president.
The 2009 political reform will dramatically affect the 2011 electoral process by shrinking the number of parties and alliances presenting candidates for federal office, bolstering the role of popular participation in the selection of candidates for public office by parties and alliances and reducing the impact of private money on election campaigns. Simultaneously, though, it will foster division within the political opposition while enhancing the substantial campaign advantages already enjoyed by the governing party. If the law is able to withstand efforts to substantially modify or overturn it, its long-term influence on the functioning of the Argentine democratic system is, however, likely to be positive.
In July 2009, the odds of a Kirchner victory in 2011 were less than one in ten. Sixteen months later, the combination of Néstor Kirchner’s political acumen, a growing economy and a fragmented, fractious and at times inept opposition have raised the Kirchners' (now in the figure of a Cristina Fernández de Kirchner candidacy) chances of victory to around one in four. Through a combination of technical skill and audacious behavior, the Kirchners’ passage of law 26.571 has improved the prospects that the Kirchner dynasty will continue to rule in Argentina through 2015.