By JEAN MARC VON DER WEID*

The legislative branch's fierce struggle to expand its power of command in the country and dominate the executive and judiciary branches has no end in sight and what is at stake is something deeper.

Introductiono

As I began to write this article, I realized that the focus indicated in the title was wrong or, at least, should not be a priority at this time. I initially wanted to assess President Lula's problems in his relationship with Congress, but the issue is broader than the ongoing crisis between the two branches of government in this government. The problem is not circumstantial, although there are specific aggravating factors in the relationship between Lula and, symbolically, Arthur Lira and Rodrigo Pacheco.

What is at stake, and this has been gradually established, is the relationship between the Executive and the Legislative branches, permeated by the relationship of the latter with the Judiciary. What we have at present is a structural distortion in the desirable balance between the three branches, especially the misappropriation of the functions of the Executive by the Legislative branch. How did we get to this point?

A storydark laughter

Looking at the history of institutions, the Executive branch has always been predominant in our hypertrophied presidential system. In particular, the Executive branch has always been responsible for defining the Federal Budget. The Executive branch's dominance was exacerbated during the 21 years of dictatorship, which kept the other two branches of government under control, occasionally intervening in the composition and form of operation of the latter. This extreme centralization of power generated in society the need to rebalance forces, which resulted in a sharp reduction in the Executive branch's power in the 1988 Constituent Assembly.

I will not go into the details of the legislation then enacted, but simply note that Congress began to heavily interfere in the definition of the budget proposed by the Executive.

Added to this new distribution of powers is a striking fact in the redemocratization process: the fragmentation of parties, the result of years of artificial reduction of political representation in a forced bipartisanship, and the annulment of political action itself. When the lid was taken off the pressure cooker with the repeal of Institutional Act number two, a profusion of groups emerged, almost all of them without a programmatic identity and responding to compositions of local political forces that came together in national parties that were little more than opportunistic conglomerates.

Three exceptions marked this period of party reorganization: the Workers' Party (PT), the Brazilian Social Democracy Party (PSDB) and the Democratic Labor Party (PDT). The latter had a mixture of unprincipled supporters, with programmatic definitions of a nationalist nature, very much centered on the figure of its creator and charismatic leader, Leonel Brizola. The first two were parties with broader programmatic definitions, the first more to the left, expressing positions aimed, without much precision, at the construction of a socialist country and the second more focused on economic development of a liberal nature, although initially it had at least reformist positions from a social point of view.

It is no coincidence that the PSDB and PT were the protagonists over a long period, from 1993 to 2016, contesting all presidential elections. It is also no coincidence that both parties failed to elect benches in the Chamber of Deputies and the Senate that would provide coherent support for the execution of the programs of their elected candidates for the presidency of the Republic.

Party fragmentation was not only evident in the number of parties, but also in the numerous internal divisions within each one. The largest of these, the PMDB, brought together former opponents of the military regime from all political backgrounds, from the right (the Barbalho clan) to the center-left (Miguel Arraes), including politicians from the democratic center (Pedro Simon) and a large number of political supporters who joined the party when it was taken over by the Sarney government.

The electoral system inherited from the military regime and not changed by the Constituent Assembly favored politicians who were elected by the so-called “backlands”. In small or more backward states, especially in the North, Northeast and Central-West, but also in rural areas of other regions, control of the electorate by local oligarchies continued to be in force, as it had been before during the military regime.

In these states, the number of voters per elected representative was much lower than in the more populous and developed states of the Southeast and South. This electoral casuistry allowed the dominance of parochial politicians, with “electoral pens” in the remote corners. None of this facilitated the formation of parties with a national political identity and programmatic.

During his eight years in office, President Fernando Henrique Cardoso had to rely on party alliances to govern with the support of Congress. This gave rise to the concept of “coalition presidentialism” among political scholars. Cardoso governed with strong support from parties that were less defined in terms of programmatics but were ideologically conservative and identified with liberalism, such as the Brazilian Democratic Movement Party (PMDB) and the Liberal Front Party (PFL).

These parties (and others of lesser importance) did not support a PSDB program, but sought a place in the sun with the perks of power. The distribution of positions and appointments of relatives and cronies of deputies and senators was the currency of exchange for support. The most notorious case, because it required a 2/3 majority of Congress to approve a Constitutional Amendment Bill, was the institution of reelection for executive positions. The purchase of votes to ensure FHC's reelection only did not result in a lawsuit because the executive had strong control over the instruments.

The PT, PSB and PDT were left crying out in the desert, denouncing the scoundrelism. But the most important thing is that a precedent was established and the physiological politicians on all sides began to lick their lips and sharpen their claws.

Lula's election put the PT and the parties that supported him in the second round, PSB, PDT and PCdoB, in government, but clearly not in power. The majority of the Chamber and Senate were conservative opposition, although the most important strand was the physiological one and many were ready to join; for a price, of course.

It was later revealed that Lula's “prime minister”, José Dirceu, proposed the PSDB solution to govern, calling on the PMDB and some center-right parties to join the government, but that Lula and the PT did not accept this wholesale “vote buying”.

This proposed government front made sense from a pragmatic point of view, especially since the PT and President Lula had already abandoned the boldest proposals of the campaign program even before the election, with the manifesto that became known as the “Letter to Brazilians” and that could better be titled “Letter to Bankers”. The appointment of Palocci (the inspiration and likely author of the letter) as Finance Minister and of some ministers linked to strong economic sectors with the support of important groups such as Roberto Rodrigues and Luiz Fernando Furlan, linked to agribusiness, showed an intention to seek to reconcile the interests of sectors of the ruling class. It was an ill-conceived maneuver, because even with successive barretas to these sectors, the impact in Congress was not automatic; there was a lack of political mediation.

The Lula government had no difficulty in approving its first important parliamentary bill, the Pension Reform, since its nature of a rollback of rights was viewed favorably by the business community, the media, and most members of parliament. For the more left-wing sectors of the PT, the shock was great and led to the split that created the PSOL, but the impact was more apparent than profound. The PT, including several of its more left-wing wings, swallowed the crisis, swallowed it dry, and remained in government, accepting that it was the price to pay to move forward with social programs.

From then on, more had to be done to secure the votes the government needed. That was when payments to some parties and individual deputies began to emerge, which became known as the “mensalão” (monthly payments). As President Lula himself later admitted, the government did “what everyone else did before”, that is, paid into a “slush fund”.

Considered a minor crime, this form of corruption of parliamentarians, carried out with public resources, ended up generating the first major crisis of the PT governments, with the right to trial by the Supreme Federal Court, which convicted a handful of deputies and, above all, three important figures of the PT: José Dirceu, José Genoíno and the treasurer Delúbio Soares.

Dilma Rousseff's election was not accompanied by an improvement in the parliamentary strength of left-wing parties, which remained largely in the minority. The problem of governing in a parliamentary minority continued to exist, and the model of buying support remained similar, only on a larger scale. Resources from Petrobras and other state-owned companies were diverted on a large scale to buy, no longer at retail, but at wholesale, involving the physiological parties that abounded in Congress. The bargaining chip was contracts between the state-owned companies and powerful construction companies that, of course, earned much more through project overpricing than they paid to individual parties and congressmen.

All of this exploded in the investigation known as Lava Jato, widely exploited by the media to destroy the Dilma Rousseff government, which was strongly opposed by the business community due to its heterodox economic orientations.

Despite this, Dilma Rousseff was reelected (beating the PSDB candidate Aécio Neves in the photochart) and would have completed her second term if it had not been for the break with the key figure in the political corruption, Speaker of the Chamber of Deputies Eduardo Cunha. The members of parliament who benefited from the distribution of perks would not have listened to the clamor of the media that praised the nefarious Sérgio Moro if there had not been the impasse between Eduardo Cunha and the PT and the former's decision to join the coup.

Legal casuistry (the so-called “fiscal pedaling”) and the articulations of Vice President Michel Temer, added to the mass movements of the right wing reborn in the 2013 demonstrations and the cynical outcry of the media (which did nothing even remotely similar in the previous scandals involving Banrisul and others) created the climate for the defenestration of Dilma Rousseff.

The physiologists in Congress sensed the end of the PT era and completed the impeachment of our first female president. Dilma Rousseff still tried to stop the stampede, giving in to the parliamentary offensive to increase control over the execution of the budget, making individual and group amendments mandatory. But it was too late.

I will not discuss here the cynicism of all these characters, starting with Moro, who exploited and extrapolated a real case of corruption. Other cases existed before without this much fuss and outcome, but the composition of the political and economic forces was different and ignored the shady maneuvers of José Sarney and FHC. The political framework in the impeachment of Fernando Collor was also different, since he had no political or ideological opposition in the ruling classes or in the media.

Fernando Collor fell due to arrogance, for trying to be more than he could be without making the necessary concessions to political oppression. He tried to pressure Congress by appealing to the “people,” but he had no basis for doing so. Jânio Quadros had already paid for a similar move with his term in office, but his resignation saved him from impeachment.

During his interregnum, Michel Temer governed in agreement with bankers and businessmen, wreaking havoc on union and labor rights, and had no trouble rallying right-wing parties to gain support in Congress. As former Speaker of the Chamber of Deputies, he was well versed in the art of handing out favors. Despite being caught in corruption negotiations with the owner of JBS, he avoided any trouble until he left the presidency.

The trauma of impeachment (the second in 15 years) gave Congress more breathing space, in a movement of empowerment that grew during the government of the madman, Jair Bolsonaro. Despite having a surprisingly strong following in the 2018 elections, although spread across several parties, Jair Bolsonaro did not have a strong party to support him and tried to govern through alliances with interest groups and ignored the parties.

He wanted to govern with the BBB (Beef, Bullet and Bible) benches, which were non-partisan, but they only came together in their specific interests. He tried to pressure Congress, appealing directly to his followers, but he had more defeats than victories, except for the Pension Reform. With the steep drop in support in the conventional media and growing opposition to his stance on the pandemic, Jair Bolsonaro ended up handing himself over to Arthur Lira to avoid being impeached, and the empowerment of the Legislative Branch over the Executive Branch accelerated.

Jair Bolsonaro, despite the strong and sinister parliamentary base he had, found no echo for his coup maneuvers. The rats' instincts must have taken over the physiologists who could smell the burning. Handing over power to the would-be dictator was like shooting oneself in the foot, the majority must have calculated. Better a weakened Lula in government, liable to be blackmailed by the parliamentary majority, than a Jair Bolsonaro with military and militia support, willing to assume total power.

And so we arrive at the labyrinth in its current form.

How far we have come!

Individual amendments by members of parliament are nothing new, but the rules for defining and releasing them have been changing over the past 10 years. Initially, the amounts were relatively small, subject to negotiations with ministries to define scope and priorities, and subject to the will of the Executive Branch to be released. And they became a bargaining chip for votes in Congress.

Individual amendments have now increased in value considerably, have become mandatory and are no longer subject to negotiations on content and priorities with the Executive. This change is apparently democratic in nature, since it equalized access for all parliamentarians, with the same values, eliminating the executive's business counter in its relationship with Congress.

In practice, however, the effect of this type of budget was disastrous for the country. It is no longer a matter of Congress amending the Annual Budget Law, a right guaranteed by the Constitution. The Executive's budget proposal responds to a macroeconomic and social logic inspired by a development strategy and a diagnosis of the population's greatest needs.

The changes introduced by Congress have often been a series of casuistry to privilege sectors of the economy and the population, perverting the programming matrix offered by the Executive. Despite this, the scope of the LOA remains, more or less crippled, national.

The individual amendments (and the others that we will analyze later) harm the spirit of the functioning of the national Executive, with a growing appropriation of resources for dispersed projects, directed to be applied in the electoral bases of each parliamentarian, in themes and audiences chosen by them.

Congressmen argue that they know the people's needs better than the executive branch, but the logic of the projects in the amendments has always been visibility and their consequent electoral appropriation. And, let's not forget, the logic of facilitating the financing of implementing companies close to the proponents.

Some have called this deviation “municipalization of the budget,” but I think that epithet is incorrect. A municipal budget works, or should work, on a scope that encompasses all the problems of the population that lives there. If drawn up with the participation of the city council, it reflects the vision of different sectors that express themselves politically in local elections. Individual amendments have nothing to do with the municipal budget, but with the interests of the parliamentarians who define them. This is an extreme pulverization of the use of resources.

On the other hand, individual amendments have become a powerful tool for manipulating elections, with ever-increasing advantages for those seeking reelection compared to other candidates. We are in the midst of the formation of new types of “electoral pens” and today’s parliamentarians are taking the place of the old “colonels”, oligarchs who controlled a base of voters by distributing gifts in each election.

Last but not least, these types of amendments, with funds directed to city halls or, more frequently, to non-governmental organizations controlled by or close to the parliamentarians who formulated them, have become instruments of direct corruption, with misappropriation of funds, overpricing, and favoritism of implementing companies. A supermachine for the misappropriation of public resources, corruption diluted in thousands of amendments over the years.

Individual amendments were followed by amendments by the Bench and Committee (a form of thematic organization of Congress). These amendments were supposed to approve projects of a national or regional nature, with themes that may or may not appear in the LOAs. In fact, these amendments ended up serving to further distribute resources, this time in internal negotiations within each party or in each parliamentary committee, without any reference to the priorities defined in the LOAs or to any other strategic logic for the country.

They served to reinforce the power of the leaders of the Benches and Committees, in business counters to guarantee support for the bosses. Soon the Bench amendment also became mandatory, removing any negotiation capacity of the executive regarding its budgetary priorities.

Not content with this format and seeking to mislead potential investigations by the Federal Court of Auditors, the members of parliament created the Rapporteur amendments (also known as secret amendments) and the “Pix” amendments. There is no transparency whatsoever in these amendments: it is not known who made the proposal, who received the money, what the nature of the project is, or who is executing it. Is it easy or do you want more? There is more. The Rapporteur amendments are completely under the control of the LOA rapporteur, currently under the wing of the presidents of the Chamber of Deputies and the Senate. This is a spectacular instrument of political control of the houses of parliament by their presidents, giving Arthur Lira and Rodrigo Pacheco the power to pressure the executive branch as never before.

When all is said and done, we end up in the current mess, where parliamentarians control a budget (distributed in terms of values ​​and focus) of 50 billion reais per year, while the federal government has only 70 billion for investments not earmarked constitutionally or by any legislation.

Meanwhile, the Tax Reform proposed by the federal government was deeply distorted by lawmakers, to exempt sectors of the economy with which it has relations or financial support. As a result, the source of resources, already severely diminished by the amendments, becomes even more precarious, since lawmakers decided to favor, for example, agribusiness, with broad tax exemptions. On the one hand, Congress suffocates the executive branch while, on the other hand, it drains its resources without mercy.

As I wrote at the beginning of this article, this is not just a problem for Lula or the PT government. It will be a problem for any government that intends to fulfill its constitutional role.

We are in the worst of all possible worlds with this legislature that enriches itself with public resources and, without any constraint, creates difficulties for the executive to govern. And it denounces any limitation on the government's actions, as if it had nothing to do with it.

We are not in a parliamentary system, where a prime minister chosen by Congress presents a budget proposal for which the responsibility lies with the parliament itself. In a parliamentary system, this budget mess would clearly be the responsibility of Congress and voters would know who to blame for these misfortunes. In our atrophied presidential system, voters blame the executive branch for these misfortunes, without realizing that the legislative branch is largely responsible for them.

To escape this labyrinth, an electoral tsunami capable of creating a parliamentary base that decides to commit to a profound political reform, redefining the power relations between the branches of government. The elimination of all these case-by-case amendments would be a fundamental step towards reestablishing the Executive's ability to govern, but other issues would have to be addressed, all of them thorny because they would overturn parliamentary privileges accumulated over time.

For example, it would be necessary to redefine how many representatives each state would have, following the republican logic of having a single electoral coefficient throughout the country, that is, each representative would be elected by the same number of voters. If this rule were adopted, and the current number of representatives maintained, the distribution would mean reducing the number of representatives in less populous states and increasing it in those with more voters. Imagine the outcry! The alternative would be to increase the total number of representatives, in a Chamber that is already very large (and expensive).

Other rules that are difficult to pass would have to be approved, such as more restrictive threshold clauses to reduce party fragmentation. Or the redefinition of the electoral process, adopting more rational systems such as the mixed proportional system, with votes for party lists and individual candidates.

The list of reforms to be discussed and implemented to improve our political and electoral system is enormous and always comes up against the underlying contradiction: those who would have to cut corners are the congressmen themselves, elected in today's flawed system.

In the midst of this chaos, it is important to highlight the desirable role of the Judiciary, in particular the Supreme Federal Court. The STF, on the initiative of Minister Flávio Dino, suspended the amendments, first those of the Rapporteur and Pix and, later, even the individual and bench amendments. The position was endorsed by the plenary, with the argument of lack of transparency and lack of criteria in defining the objectives, themes and scope of the amendments.

However, the STF did not address the distortion applied to the constitutional legislation that gives the executive the right to define the budgetary order, ensuring the appreciation of both houses in the vote on the LOA. The “agreement” to normalize and regulate the amendments, after negotiations between the three powers, was limited to discussing the need for “technical” criteria and transparency rules, but nothing was done to prevent the current dilution of budgetary expenditures, which almost equal those of the executive, in parochial projects.

The legislative branch's retaliation against the judiciary appears in several bills that range from stealing the role of the Supreme Court as the final arbiter of what is or is not legal in the country to controlling the release of funds requested by the judiciary. Nine are also proposed impeachments against ministers who do not please the parliamentarians.

The legislative branch's fierce struggle to expand its power to command the country and dominate the executive and judiciary branches has no end in sight, and what is at stake is something deeper: what political regime should we adopt? In practice, we are far from what is defined by the Constitution and what has been confirmed by more than one referendum. Our regime is presidential, or should be. We are experiencing a gradual and growing process of becoming a bastard parliamentary regime, where the legislative branch has all the bonuses and none of the burdens. And the Supreme Court has not reacted to this.

Turning this around is difficult to do, but something will have to be done or the institutional crisis that is atrophying the executive will lead us into an even bigger hole than the one we are in.

*Jean Marc von der Weid is a former president of the UNE (1969-71). Founder of the non-governmental organization Family Agriculture and Agroecology (ASTA).

the earth is round there is thanks to our readers and supporters.
Help us keep this idea going.
CONTRIBUTE