The Battle for the Legislature

Image: Murillo Molisani
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By CARLOS RANULFO MELO*

Changes in the relationship between the Executive and the Legislative are difficult to reverse

Conquering significant seats in Congress, and especially in the Chamber of Deputies, has always been fundamental in Brazil. The reasons for this are clear. On the one hand, access to vital resources for parties depends on the size of the benches elected to the Chamber of Deputies. On the other hand, our presidentialism is, has always been and will continue to be, a regime that demands the assembly of coalitions in order to function satisfactorily.

The novelty of recent years, and of 2022 in particular, is that the importance of the battle for the Federal Legislature has increased a lot. And that goes for the two aspects highlighted above.

From the point of view of resources, in addition to the party fund and free advertising hours – distributed proportionally to the size of the benches elected to the Chamber – the strength of the parties in Congress started to define, since 2017, the division of the electoral fund, whose amount made available jumped from R$ 1,7 to R$ 4,9 billion from 2018 to 2022. The distribution of resources innovated when considering the Senate: 15% of the total is distributed proportionally to the benches elected in 2018, added to the senators in compliance of the second quadrennium.

But the role of the Chamber continued to be decisive: 35% of the resources are distributed proportionally to the votes obtained in the 2018 election between parties that won at least one seat; another 48% depend on the size of the elected groups. 2% are distributed equally among all subtitles registered with the TSE.

The second reason why the battle for the Legislature assumes greater relevance today than before lies in changes in the two pillars that have contributed to the functioning of coalition presidentialism in the country since redemocratization: control of the decision-making agenda by the Executive branch and of legislative dynamics by the party leaders.

Legislative dynamics were strongly affected by the increase in party fragmentation. Such a process required broader government coalitions. Especially in the Chamber, the big benches gradually lost weight and the legislative scene came to depend on the small and medium ones. The dispersion of power “swelled” the College of Leaders, reducing its ability to coordinate and negotiate. The leaders, with less power and less ability to meet the demands, lost strength relative to the members of their benches. The degree of discipline in voting has declined.

In government coalitions, the “blackmail power” of each member has increased. The weight of party blocks grew, to the detriment of parties, increasing the degree of uncertainty in the definition of the Board of Directors, as evidenced by the rise of Eduardo Cunha and Artur Lira. In both cases, the conquest of the Presidency of the Chamber was based on agreements made “head to head”, in the absence of the leaders. And the subsequent conduction of the works revealed an unprecedented centralization and protagonism in the conduction of the legislative agenda.

Parallel to the increase in party fragmentation, Congress assumed a greater role in legislative production. Since 2007, most of the legislation approved in Congress came from the initiative of parliamentarians, and not from the Executive, reversing the prevailing situation since the enactment of the Constitution.

It is a process of incremental institutional change, based on small changes in rules and/or changes in the interpretation of existing rules. The two most significant changes occurred in the processing of Provisional Measures (MPs) and in the budget process. In the first case, Michel Temer, when president of the Chamber in 2009, started to consider that the locking of the agenda, a measure that facilitated the control of the agenda by the Executive, should apply only to matters related to the theme of the MP.

In 2012, the Federal Supreme Court (STF) determined that the Provisional Measures (MP) must pass through a Mixed Commission – something foreseen, but never implemented in Congress. Finally, in 2015, a Direct Action of Unconstitutionality allowed the President of the Chamber to decide, ex officio, what is or is not foreign matter to the MP. The sequence of modifications increased the bargaining power of the legislature vis a vis the executive.

The changes in the Budget would have an even greater impact. Since 2015, the execution of congressmen's individual amendments ceased to depend on the Executive's discretion and became mandatory. The same happened with bench amendments. In 2019, Congress transformed the “rapporteur’s amendments”, which until then were intended to correct technical or legal errors or omissions, into a mechanism that gives the Budget Law rapporteur the right to forward amendments that need to be prioritized by the Executive . Such innovation, instead of referring to the already approved amendments, opened space for Congress to grab a larger share of the budget; a slice whose total value to be pledged is equivalent to the sum of the individual and countertop amendments.

From a more substantive point of view, the sequence of changes in the budget process has boosted the particularism in the distribution of Union resources – instead of a distribution based on nationally defined criteria, a logic prevails where each congressman allocates resources to his electoral base priority. From the point of view of the relationship between powers, changes in the budget, as in the case of MPs, have made the Executive's “toolbox” less powerful for dealing with the Legislative.

Taking into account all the changes, what we have today is a Legislature with greater protagonism, capable of formulating and implementing its own agenda and less dependent on the Executive. The picture is drawn more clearly in the Chamber with the formation of a majority center-right legislative coalition. During Dilma Rousseff's second term, this coalition operated against the government. Under Jair Bolsonaro, it guarantees its survival, but operates under internally defined priorities and is able to impose limits on the Executive – it is no wonder that the current president is the record holder in vetoes overturned in the New Republic.

In both moments, the coordination of such a coalition fell to a President of the Chamber who was regimented more and more powerful. In addition to the right to initiate impeachment proceedings, the administration of Artur Lira added even greater control over the agenda to the presidency’s “toolbox” – embodied in the reduction of the minority’s ability to obstruct, and in the expansion of initiatives voted on in terms of urgency and of remote voting – and the prerogative of appointing the rapporteur of the Joint Budget Commission, in years when such a decision rests with the Chamber.

Governance has become more complex. Changes in the relationship between the Executive and Legislative branches are difficult to reverse. Power is not easily returned. In theory, a legislature with greater protagonism and autonomy is good for democracy. But combined with a hyper-centralization in the presidencies of the houses and with the exacerbation of a particularist dynamic, it can become an element of instability. Assuming, as the polls indicate, that Bolsonaro is defeated, the battle for the Legislature becomes crucial, starting with the elections next October and continuing in the definition of the presidencies of the Chamber and the Senate.

*Carlos Ranulfo Melo He is a retired full professor at the Department of Political Science at UFMG.

Originally published on the website of Election Observatory of the Institute of Democracy.

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