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PRELIMINARY DRAFT
PLEASE DO NOT CITE, QUOTE OU CIRCULATE
WITHOUT AUTHORS PERMISSION
The Methodological Challenges of Informal Institutions of the
Brazilian Chamber of Deputies1
Graziella Guiotti Testa – University of Sao Paulo
Suely Mara Vaz Guimarães Araújo – Chamber of Deputies (Brazil)/University of Brasilia
Direct comments to [email protected] or [email protected].
This paper has been supported by a grant from CAPES/PROEX and CNPq.
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This draft was prepared to presentation at the 23rd IPSA World Congress of Political Science,
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ABSTRACT
The Brazilian literature on Legislative has always looked to formal institutions, although
no researcher on Congress will deny the strength of informal institutions. We face the
methodology challenge of analyzing how to look at informal institutions regarding
legislative studies. After all, if it is very rare to find researchers who define institutions
only as formal rules, why the research designs on Brazilian Congress hardly never
include measures of informal rules that define congressmen’s behavior? Brazilian
parliament has been described as an arena of strong parties. The predictability of the
results knowing the position of the parties’ leaders have been high since the beginning
of the most recent democratic regime in 1988. One of the consequences of this
framework is the big gap that divides the seniors congressmen from the beginners.
What kind of informal structures creates a parliament with such big differences between
members? We identify some of those informal institutions that influence the behaviors at
the Brazilian Chamber of Deputies. The informal seniority, the thematic parliamentary
fronts, the networks of policies and the ministerial lobby seems to show that the
lawmaking process is more complex than it has been studied until today, and the
considerations of the informal elements of the process is a step the literature haven’t
given.
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INTRODUCTION
The Brazilian literature on Legislative has always looked to formal institutions, although
no researcher on Congress will deny the strength of informal institutions. We will face
the methodology challenge of analyzing how to look at informal institutions regarding
legislative studies. After all, if it is very rare to find researchers who define institutions
only as formal rules, why the research designs on Brazilian Congress hardly include
measures of informal rules that define congressmen’s behavior?
Brazilian parliament has been described as an arena of strong parties. The predictability
of the results knowing the position of the parties’ leaders has been high since the
beginning of the most recent democratic regime in 1988. One of the consequences of
this framework is the big gap that divides the congressmen that are leaders and the
non-leaders. What kind of informal structures creates a parliament with such big
differences between members? To answer this, we intent to analyze the incentives of
the institutions that conform the law making process at the Brazilian Chamber of
Deputies.
We will try to identify and describe some informal institutions that influence the
behaviors at the Brazilian Chamber of Deputies. More specifically, the ones that guide
the relationship between the leaders and the non-leaders and that divide the deputies in
two different informal categories – although formally identical. In this context, we will
also study the thematic issues that bring deputies from different parties together and the
complex debate to conceive a policy.
We start discussing how the theory in political science has dealt with the informal
institutions. The new institutionalism has done little to define what institutions are and
the issue of the (in) formality has been neglected. We then expose some findings on the
subject in other countries. Subsequently we analyze how some of those informal
institutions work in the Brazilian Chamber of Deputies. On the permanent committees
and on the Plenary we observe that the seniority matters when it comes respectively to
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occupying seats and including bills at the agenda, although there’s no formal seniority
rule. Next, we describe the functioning of the thematic parliamentary fronts. They
aggregate congressmen although they are not parties, and don’t have attributions or
rules provided by the internal regulations. Following we talk about the interaction of
parliamentarians with government and non-governmental organizations, technicians
and other actors on policymaking. Some examples suggest that the discussions that
lead to agreements take place beyond the formal arenas, and that the policy networks
work mostly in informal bases. After, we consider the ministerial lobby as evidence that
the Executive branch of the Brazilian coalition presidentialism is deeply divided.
Following we present the discussion and the final considerations.
THE METHODOLOGICAL/THEORETICAL CHALLENGE
“Why might politicians who coalesce into governments obey informal rules at odds with
formal constitutional constrains?” (Mershon 1994). The famous methodological
anecdote perfectly applies to the lack of research on informal institutions of the Brazilian
Congress: one man faces other one who is looking for a key at the ground under a light
and asks “did you drop the key under the light?” to witch the second man answers “no, I
dropped there in the dark but there I can’t see”. Although the study of informal
institutions brings with it lots of methodological challenges, we choose to look for the
key where it fell.
The modern institutionalist theory has at the core of its research agenda two main
themes which permeate most of the academic production: (i) the search for causality in
the relation between institutions and the behavior of political agents, and; (ii) the
analysis of the sources of institutional change. Despite the evident relevance of those
topics, the new institutionalist literature seldom worries about finding a precise
conceptualization of its main object of study: institutions themselves. In other words, it
establishes that institutions matter, it investigates the level of constraint these
institutions impose on agents’ behavior, it examines how they come to exist and how
they change, but rarely discusses what an institution is.
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The Third Wave of democratizations seems to have encouraged the recent initiatives on
compared research involving informal institutions on recent democracies’ parliaments.
Bratton (2007) divides the Africanists between “formalists” and “informalists”2. Hyden
(2006) points out that “Africa is the best starting point for exploring the role of informal
institutions” (pp. 78)3. Zubek (2011) focuses on the Czech Republic, Hungary, Estonia,
Poland, Slovakia and Slovenia parliament agenda control4. Khmelko (2011) also
explores the issue of informal institutions that guide the internal organization of the
former soviet parliaments, especially in the relation between the committees and the
government.
Helmke and Levitsky (2006) focuses on Latin America and analyzed a diverse set of
institutions – Executive-Legislative relations, electoral politics, party politics, judicial
institutions and the rule of law – with a common typology created by the authors. The
evidence points out to new theoretical issues too. One of them is that informal
institutions can limit presidential power even in case of hyper-presidentialist
constitutions, as the Chilean case points out (Siavelis 2006). Another important
conclusion is that informal institutions can do the enabling and constraining that we
attribute to the formal rules (Stokes 2006).
The most recent democratic period in Brazil has initiated in 1988, with the end of the
military dictatorship. Since then, the literature observes the dynamics of the
congressional behavior, most of the time looking at the Executive branch and the party
leaders as major players in the process. In a first moment, predictions were made
based on expectations of rational behavior encouraged by a set of formal institutions –
federalism, proportional electoral system without preordenated list, presidentialism,
multipartidarism. The prognosis was that the excess of agents with decision power
could undermine the stability and even risk the democratic institutions (Abranches 1988;
Ames 1995, 2003).
2
The informalists consider three informal institutions as the most important in the African
politics: clientelism, corruption, and the “Big Man Presidencialism”.
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That would be a consequence of the “economy of affection”.
4
He analyzed how formal rules are interpreted practically and if there are informal rules that
coexist with formal ones regarding agenda control.
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Nevertheless, empirical research points out to a solid set of practices centered in the
Executive and in the party leaders. This new interpretation emphasizes that the
previous studies didn’t consider the inside incentives of the parliament, and that the
system never paralyzed as they predicted. The theory of the two arenas – electoral and
legislative – explains the good operation of the institutions by the centralization of the
parliamentary process. If inside the electoral arena the candidate doesn’t need the party
to get votes and tends to act individually, the incentives of the legislative arena
guarantee that the congressman will vote as the party suggests (Limongi & Figueiredo
1996; Figueiredo & Limongi 1999, 2001; Santos 1999, 2005). Although only a small
number of papers define institutions by relying only on formal rules5, the Brazilian
literature on those matters mostly neglects the role informal rules play6.
But are there informal rules that constrain behaviors in the Brazilian Congress? If yes,
which are them? There is a gap in the literature when it comes to identifying and
analyzing the informal institutions that constrain practices in the Brazilian Congress.
That’s exactly what we intend starting to do. We are going to do that by looking more
closely into the Congress and its decision-making processes.
We intend to provide empiric material to start a discussion on what are the
consequences of the informal institutions on the stability and the quality of democracy
focusing on the most important institution of the representative democracy: the
Parliament. Why the seniority has been each year more important to the occupation of
relevant seats and to including items in the agenda of the House if the formal institutions
are the same? What is the role of the thematic parliamentary fronts? Why aren’t those
thematic issues allocated at the formal parties’ cleavage? How do the policy networks
work? In which arena the debate actually takes place? If the President has the
prerogative of choosing his or her cabinet, why do the Executive ministries have a lobby
team?
5
The definition of North (1990) that institutions may be “any form of constraint that human
beings devise to shape human interaction, both formal constraints — such as rules that human
beings devise — and informal constraints — such as conventions and codes of behavior”
seems to be one of the most used by the literature.
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Brinks (2003, 2006) are exceptions. His emphasis is in judicial compared institutions.
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THE COMMITTEES AND THE INFORMAL SENIORITY
According to Polsby (1968), the criteria by which leaders are selected are a good
indication if the institution is institutionalized or not – in other words, if they are selected
among the inside members, the institution is more likely to be suffering an
institutionalization process than those in which the lateral recruitment is a rule. In the US
House the seniority is a formal rule – the president of the committee will be necessarily
the person of the majority party who has been in the committee for more time.
But how institutional constrains could be an indicator of institutionalization? Polsby’s
theory can be read as a big circular problem: the seniority is a sign of institutionalization,
but in the US it is an obligation. The rule of seniority can be a simple sign of path
dependency and not an indicator of institutionalization. Putting in methodological terms,
the dependent variable, the seniority, doesn’t vary.
Nevertheless, in Brazil the rule that guides the selection of committees’ presidents is the
party leader indication. The leaders can choose either new members to the top seats of
the House or experiment congressmen. Therefore the intern selection of leaders –
Polsby’s criteria – would be a good indicator of institutionalization in Brazil. It is also
good to remember an extra attribution of the committees in Brazil: they have the
prerogative of approving certain bills without the pronunciation of the Plenary, called the
“conclusive power” by the Constitution.
When thinking about the Parliament committees as independent internal institutions of
the House, we must ask ourselves: who are the Congressmen who are selected to be
presidents of those arenas? Are they selected among internal members or outsiders?
If in the USA the reelection is the rule inside the Parliament, in Brazil the reelection rate
mean of the Chamber of Deputies in the 1990-2006 period was 48.94%. In other words,
half of the congressmen weren’t occupying the office on the previous legislature. Thus it
would be reasonable to suppose that, everything else being constant, half of the
presidents would be in their first mandate – since in Brazil there’s no such rule as the
seniority, the selection is a prerogative of the parties.
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Surprisingly, 65% of the committee’s presidents are at least in their third mandate. In
other words, even without the institutional incentives of the seniority, only 13.5% of the
congressmen occupy this chair in their first mandate. What has to be emphasized here
is that half of all House’s members are in that condition. This means that, even with the
with the selection rule by party leader, the posts of committee’s presidents are more
often occupied by senior congressmen.
More than that, the institutionalization process can be observed over time. Testa (2014)
compared the share of committees’ presidents in their first mandate with the total share
of beginners at the House and called it institutionalization index:
𝜆! =
𝜎!,!
𝜎!,!
where 𝜎!,! is the share of new deputies at the House and 𝜎!,! is the share of
committees’ presidents in their first mandate. The evolution of the index along time
shows an ongoing process of fewer beginners occupying presidency seats in the
committees.
The lower the index, the less beginners occupying presidency seats of the committees.
The fitted values graphic visually shows that along time less beginners have occupied
top seats at the Brazilian Chamber of Deputies although the formal constrains on this
respect have been exactly the same during the period. The Table 1 shows the shares
along time and Graphic 1 illustrates the institutionalization trend.
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Table 1. Share of beginner members and presidents
Year Ncommittee Firsttimeshare 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 Total Firstpresidentshare Institutionalizationindex 16 16 16 16 16 16 17 18 19 20 20 20 20 20 0,48 0,48 0,48 0,48 0,38 0,38 0,38 0,38 0,37 0,37 0,37 0,37 0,41 0,41 0,19 0,44 0,38 0,31 0,13 0,31 0,59 0,28 0,00 0,30 0,20 0,25 0,15 0,15 0,39 0,91 0,78 0,65 0,33 0,83 1,56 0,74 0,00 0,80 0,54 0,67 0,37 0,37 20 20 20 20 330 0,41 0,41 0,39 0,39 0,20 0,10 0,20 0,40 0,49 0,25 0,51 1,02 Primary data source: Chamber of Deputies. Graphic 1. Institutionalization Index
Source: Testa (2014). 10
DEPUTIES, PARTY LEADERS AND THE PLENARY AGENDA
Although the specialized literature about Brazilian Legislative has deeply explored the
ability of the Executive branch of influencing on the legislative agenda, which is vast
(Figueiredo & Limongi 1996, 2001; Pereira, Power & Rennó 2008), it hasn’t investigated
the ability of the Congressman himself influencing the legislative agenda. In this context,
it must be noted that the discussion among the agenda power and the ability of the
congressmen on influencing the definition of the legislative agenda is, as a last resort, a
way of evaluating the quality of the responsiveness of the congressmen to the interests
of their electors. That is to say that if a congressman has little ability on influencing on
what is discussed on the legislative house, he or she will have few opportunity to bring
voice to the interests of his or her electors and will not be able to represent their
interests, opinions and social perspective.
The House Chairman has the formal prerogative of defining the Plenary agenda
establish by the regiment. The internal rules cited that, in this duty, he or she should
hear the Leaders’ College, which gathers the leaders of the majority, the minority, the
parliamentary groups and the government. In practice, this kind of decision has been
carried out essentially by the Leaders’ College (Testa 2012). It must be explained that
the Leader’s College has strong informal components. The leaders have periodical
meetings, but there is no department or other administrative structure really established
as the Leaders’ College. The group and its meetings are confused with the figure of an
entity that is not formalized yet in administrative terms.
Testa (2012), applying a micro-institutional perspective, has studied the application of
the procedural rules of the Chamber of Deputies – formal and also informal – with
regard to the scheduling of propositions to be discussed by the full House. She built a
database with all requirements individually signed by deputies that made applications
for inclusion on the Plenary agenda, addressed to the Chairman between 2006 and
2010, a total of 1,244. Of this total, 446 were not attended even with the inclusion of the
legislative proposal on the agenda, 478 have resulted in inclusion, but not in voting, and
320 generated inclusion, voting and approval of the proposition.
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In 26.2% of the requirements, the deputies have applied for including proposition
authored by parliamentarians of their states – or by themselves (Testa 2012). It is a
significant number that shows a parliament in which the regional element is strong. Most
important, it has been found that if a deputy requires the inclusion of a proposition
originated from a member of the same state as him or her, there is more chance to
obtain the inclusion on the Plenary agenda, despite the approval is not guaranteed.
The number of applications submitted by deputies who have held command positions in
the Plenary or in the justice committee, the most important of the House, is high, almost
three times more than those presented by parliamentarians who have never exercised
those functions. This finding may indicate that this type of requirement really presents
results, and must be considered – and studied – even recognizing the strength of the
Leaders’ College in terms of agenda setting.
It should be mentioned that among the requirements submitted during the period
studied by the cited author, only 53 were from deputies of opposition parties (Testa
2012). This number shows the weakness of the opposition in Brazil and its low
expectation of seeing political demands being met.
If the amount of mandates and command positions of the proponents of the
requirements is considered, it appears that among the deputies with less experience,
the percentage of fulfillment of their demands was at 20%, while among experienced
members the percentage was 30.3% (Testa 2011). It means that actors with
parliamentary experience not only have more ability to include propositions on the
Plenary agenda when submitting requirements, but also have greater ability to approve
them when included. It is evident also here some application of an informal rule of
seniority.
Testa (2011) observed that all propositions that were the subject of a requirement for
inclusion on the agenda, and had been voted, had been approved. In such situation,
there was not a single case in which the proposition was rejected. This finding strongly
supports the hypothesis that there is a shift of decision-making arena, with markedly
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informal characteristics, and reinforces the importance of methodological study of
different parts of the legislative process, not just of the binomial approval/rejection of
Executive’s proposals, which is the main focus of studies about Brazilian Parliament.
THE THEMATIC PARLIAMENTARY FRONTS AND INFORMAL GROUPS
As previously mentioned, in the researches about coalitional presidentialism in Brazil,
the strength of the party leaders, which has its basis primarily in the internal rules of
Congress, is placed as an important element of coordination with the Executive branch,
and as a relevant factor for the legislative success of the President. In Brazil, political
parties are weak in the electoral arena, but quite strong in the legislative arena (Pereira
& Mueller 2003).
The political party matters in the dynamics of the legislative process in the Brazilian
case; there is no doubt about that. The point is that there are other factors that also
matter, and that are linked to aspects that go beyond the new institutionalist perspective
that highlights the institutional foundations formally established by the Federal
Constitution and regiments of the legislative houses. One of the elements that must be
weighted in this sense is the theme of legislative proposals on the agenda. Whether the
power of the Executive branch and the partisan logic explain relevant part of the
Congress dynamics, the thematic logic also needs to be valued.
Since 2003, the Board of the Chamber of Deputies has been promoting the registration
of these groups as parliamentary fronts7. These fronts have no attributions or rules
provided by the internal regulations of the House. Their functioning is marked by
informality. The registration was created mainly for the control of the use of plenaries
and other spaces inside the Congress building. Anyway, with this registration, it seems
that the politicians who lead these groups gain symbolic power (Bourdieu 1989). This
may explain the large number of parliamentary fronts registered at the Board in recent
years, as shown in Table 2.
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In the Senate, there is no registration, the parliamentary thematic groups act in a totally informal way.
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Table 2. Thematic parliamentary fronts registered at the Brazilian Chamber of Deputies,
54ª Legislature (2011-2014)
Advocacy area 2011 Number of parliamentary fronts 2012 2013 2014 th
Total (until Jun, 30 ) Agriculture and livestock Education and culture Environment protection Health Housing and urban planning Human rights Industry Mining and energy Public safety and civil defense Regional interests Specific professional categories Taxation Telecommunications Trade and services Transport Others Total 11 3 4 1 19 9 2 2 2 15 2 3 -­‐ -­‐ 5 9 2 3 1 6 -­‐ -­‐ -­‐ 18 3 18 4 5 5 2 3 1 -­‐ 5 2 2 4 1 -­‐ -­‐ -­‐ 26 9 8 9 5 14 5 6 1 10 1 3 12 33 3 1 5 7 20 120 1 -­‐ 4 1 3 38 -­‐ 1 3 -­‐ 3 43 1 -­‐ 1 1 -­‐ 11 5 2 13 9 26 212 Primary data source: Chamber of Deputies (http://www.infopedia.pt/$corporativismo;jsessionid=s7whYvzww40ZH1-­‐
B49SbVg__). For the registration at the Board, it is required that the parliamentary front has a
membership list with at least one third of the deputies or, if mixed fronts, 1/3 of the
deputies and senators. It has been set up an informal pact whereby parliamentarians
sign supporting almost all fronts. But very few of them actually have many members
working actively. Each front has a coordinator or group of coordinators who work in the
political negotiations on the issue advocated by the group. The role of the leaders of
these groups in decision-making processes in the Brazilian Congress has not been
studied yet. This gap needs to be filled. Note that many of them tend to be specialized
in a specific theme, which brings the need for analyzes somewhat based on
informational theory (Gilligan & Krehbiel 1987; Krehbiel 1991).
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In certain legislative processes, the thematic interest is placed above the party. One
example was the decision of the Chamber of Deputies on the proposal for the new
Brazilian forestry law that took place in 2011. The Labor Party, which controls the
Government, stood divided throughout the process, division that existed also within the
Executive branch. The situation weakened the role of the government leadership and
led to the defeat of its routing, opposed to an important amendment supported by the
Brazilian Democratic Movement Party, which has further reduced the level of
environmental protection provided by the approved law. The two largest parties of the
governmental base showed serious coordination problems (Araújo & Silva 2012).
Drawing a synthesis that should not blur the complex debates related to this law, its
legislative process can be seen as a fight with two sides, the agriculture parliamentary
group, joining different registered parliamentary fronts, and the Environmentalist
Parliamentary Front. Political parties were weakened. This was a deviant case of the
coordination power of party leaders in the Brazilian Congress (Campanini 2013), but
which is the frequency of this type of occurrence? What leads to the breakdown of the
usual logic of control of the Congress by the Executive branch with the support of party
leaders of the government coalition? In certain kind of issues, can this situation be the
rule and not a deviant case?
The thematic parliamentary groups are assembled with very different themes and with
very different degrees of organization. The challenge posed here is to understand the
processes and mechanisms associated with the situations in which they become
relevant political actors in the decisions of the Congress. If the fronts and other thematic
groups are not important actors, as seems to indicate the lack of attention given to them
in the researches about the parliament, why do politicians insist on creating them?
These groups seem to be alternative channels to the congressmen, granting them
greater freedom of action than the political parties.
In the list of parliamentary fronts and other thematic parliamentary groups, there is great
variation in political power also regarding leadership. Some coordinators of these
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groups always take part in negotiations on the subjects related to their group, but others
have no political voice. There are significant differences in the strength of these leaders,
but also variations in this sense among party leaders. These differences must be
studied. How to do that properly is a relevant challenge.
POLICY NETWORKS AND LEGISLATIVE DEBATES
Brazilian democracy maintains different institutional mechanisms that allow the Brazilian
President to place legislative proposals in advantage over the parliamentarians’ ones,
such as the adoption of provisional decrees with force of law, the permission to request
urgency for the processing of his (or her) bills of law, and the exclusivity on legislative
initiatives about certain issues which is granted to the President by Federal Constitution.
Besides this, the set of regimental assignments held by party leaders inside the
Congress, especially those from the governmental coalition, centralize power and
facilitate the coordination games between the Presidency and the parliamentarians. As
previously commented, many political analysts think that these centralizing tools are
essential to ensure political stability and governability in Brazilian reality, which gathers
an exacerbated multiparty system with bicameralism, federalism and an open list
system of proportional representation (Araújo & Silva, 2012).
From 1989 to 1994, 85% of the federal laws enacted are originated from proposals by
the President, percentage similar to the one observed during the military regime
(Figueiredo & Limongi 2001). This frequently quoted number (Pereira & Mueller 2000;
Amorim Neto & Santos 2003; Pereira, Power & Rennó 2005; Amorim Neto 2006) shows
the Executive branch as the main de jure and de facto legislator (Figueiredo & Limongi
2001).
This kind of statement of general and quantitative nature obscures important aspects of
the dynamics of Congress and its production. Within the national laws that come into
force in the country, the ones originated by proposals submitted by the President or by
provisional decrees are computed. Changes and additions to the texts of the proposals
written by parliamentarians are not analyzed, or the cases in which the President's
proposals are based on texts written in advance by the parliamentarians (Silva 2013).
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These findings also do not consider that about 40% of federal laws are related to
specific budget credits (Araújo & Silva 2012)8, subject to the exclusive initiative of the
President.
Furthermore, it must be drawn attention to another aspect indirectly related to the topic
of the previous section, the policy subsystems and policy networks. In the process of
lawmaking, the debates involving not only the Executive branch and members of the
two national legislative bodies (Chamber of Deputies and Federal Senate), but also
representatives of different business sectors, professional groups, non-governmental
organizations, academic researchers and other actors.
Sabatier and Jenkins Smith (1993, 1999) and Sabatier and Weible (2007) affirms that
the most useful aggregate unit of analysis for understanding policy change – and the
lawmaking processes deals mostly with this kind of change – is not any specific
governmental organization but rather a policy subsystem, i.e., those actors from a
variety of public and private organizations who are actively concerned with a policy
problem or issue. To the Advocacy Coalition Framework (ACF), actors within the
subsystem can be aggregated into a number of advocacy coalitions composed of
people from various organizations who share a set of normative and causal beliefs and
who often act in concert. Some policy subsystems are nested within broader policy
subsystems, or have actors in common with other policy subsystems. The ACF takes a
comprehensive understanding of specialists, which are not limited to technicians and
researchers that present data, causal analysis and solutions to public policy problems.
The interaction in the subsystem throughout time leads to specialization of its members
(Araújo 2013).
The Multiple Stream Framework (Kingdon 1995) works with specialists assembled in
policy communities that generate alternatives and proposals. Specialists are scattered
both through and outside of government and have in common their interactions with
each other. Policy entrepreneurs that can be also in or out of government, in elected or
8
For data, see:
https://docs.google.com/document/d/1lIDItzmSz_kdHrOaOHAY1PuTcaevUka3beKZ8OxqH0M/edit#book
mark=id.261160c41165.
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appointed positions, in interest groups or research organizations, and plays a key role
advocating policies.
The concepts of policy subsystems, policy communities, epistemic communities and
other similar, each one with a specific approach, are included in the study of policy
networks. As common brand, it is understood that public policy would be formulated not
by a unitary government and autonomous, but in arrangements, with varying degrees of
completeness, interdependence and commitment, characterized by the interaction of
governmental and nongovernmental actors gathered by thematic areas or public
problems that require decision by the government. In public policies, the notion of
networks opposes the traditional perception that the government can be understood as
an independent entity and largely above the rest of society (Calmon & Costa 2013).
The contemporary world is moving from government to governance. The vision of a
sovereign state that governs in the schema top-down by laws and regulations is
gradually being replaced by ideas about decentralized governance based on
interdependence and negotiation. In an increasingly complex, fragmented and multidimensional world, citizens, voluntary organizations, private companies and other
stakeholders are encouraged by government authorities themselves to engage formally
or informally in the decisions processes and self-regulatory schemes (Sorensen &
Torfing 2005).
The policy networks are directly related to the governance perspective. Policy networks
can be understood as a set of relationships between heterogeneous and interdependent
actors who work in the same policy subsystem on the basis of a particular governance
structure, consisting of formal and informal rules and forms and ways of interpreting and
implement them (Calmon & Costa 2013).
The Brazilian National Congress is not immune to these changes in public policy
dynamics. The policy networks operate in the decision making processes of the
Legislature in scheme that goes beyond a traditional view of lobbying through political
pressure in favor of predetermined demands. The large number of public hearings and
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similar technical meetings that are held for discussion of legislative processes, shown in
Table 3, evidences this reality.
Table 3. Public hearings and similar technical meetings at the Brazilian Chamber
of Deputies, 54ª Legislature (2011-2014)
Legislative forum Permanent comittees Temporary comittees Others Total 2011 2012 2013 320 101 18 439 262 94 22 378 270 117 20 407 2014 th
(until Jun, 30 ) 52 40 6 98 Total 904 352 66 1322 Primary data source: Chamber of Deputies (http://www2.camara.leg.br/deputados/discursos-­‐e-­‐notas-­‐taquigraficas). There is clear evidence that the interaction of parliamentarians with government and
non-governmental organizations, technicians and other actors goes beyond oral
testimony at hearings and other public meetings. Processes of collective deliberation
take place, labeled by informality, with the participation of stakeholders that integrate
policy networks related to the themes under discussion, as showed by Dryzek and
Dunleavy (2009).
As an example, we can use the final stage in the House of the process that generated
the National Policy of Solid Waste Act. This legislative process had a long and
contentious procedure, two decades long. In the final phase, the committees of the
House had already manifested, but the main actors involved in the discussions were not
satisfied with the text sent to the Plenary. Therefore, the Board created a workgroup – a
tool that does not have regimental prediction – and appointed as coordinator a
specialized deputy, who had worked years before on a legislative process on the same
subject at São Paulo, the most populous Brazilian state. This coordinator assumed at
the working group report (Jardim 2009) that, in addition to the public hearings and
meetings with the Parliamentary Environmentalist Front, he had negotiated the text
content produced by the group directly with several organizations as: Environment
Ministry, Business Center for Recycling, Brazilian Association for the Waste Treatment,
Waste and Citizenship Forum, National Movement of Recyclable Materials Collectors,
Brazilian Association of Pulp and Paper, Brazilian Association of Electrical and
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Electronics Industry, Brazilian Technical Association of Automatic Glass Industries,
National Industry Confederation, Federation of Industries of the State of Sao Paulo,
Brazilian Institute for Consumer Defense and many others.
Another example of legislative debate through public policy network is the process of
the House recently approved the National Plan for Education Law. Martins (2014)
reports the activities of a complex group of actors in key discussions on education
policy, including the production of laws in this area: many organizations of the Executive
branch, representatives of state and local governments, educational social movements,
organizations representing students, organizations of private entrepreneurs, public
prosecutors, scientific organizations and others. There are different types of
coordination and conflict relations in this network of actors.
It should be emphasized that even in each segment the positions are not uniform, as
exemplified in dissensions, in the debates on the Fund for Maintenance and
Development of Basic Education, between the Ministry of Education and the Ministry of
Finance, the National Council of State Secretaries of Education and the National Union
of Municipal Secretaries of Education, the National Confederation of Municipalities and
the National Front of Mayors, or between the different political forces in the Parliament
(Martins 2014).
In this kind of context, it should be understood that the content of the laws produced is a
result of a collective game aggregating many actors. Within this game, preferences are
constructed and reconstructed. The balance between these actors is not static, but
involves continuous negotiation processes. The analyzes that separate the Executive
and Legislative branches, government and society, or that see society organizations
with fixed demands that do not change, do not show the complexity of decision-making
processes, including the legislative ones. It should be understood also that formal rules
matter, but there is much informality in the relations concerning policy networks.
DIVIDED EXECUTIVE AND MINISTERIAL LOBBY
20
In the organization of the Brazilian Executive branch, there are 24 ministries and 11
secretaries of the Presidency whose holder has ministerial status. The General
Attorney, the Chief of Staff of the Presidency, the Chief of the Institutional Security
Cabinet of the Presidency, the Comptroller General, and the President of the Central
Bank also have ministerial status9. Each of the ministries has government agencies and
other public entities linked to it. There are also several collegiate boards with decisionmaking power over public policies, formed by representatives not only from the
government but also from business community and civil society.
In this reality, it seems rather simplistic to address the relationship between the
Executive and Legislative branches within Brazilian coalition presidentialism as
composed of two poles, articulated through direct negotiations between the Presidency
and the leaders of political parties, based primarily on formal institutions provided for by
the Federal Constitution and National Congress’ regiments. These negotiations occur,
but it is necessary to realize that the Executive branch is multifaceted. It has internal
differences that cannot be undervalued, even with regard to its performance in the
Congress.
Martins (2014) shows an example of the internal division of the Executive in the debates
on the Fund for Maintenance and Development of Basic Education:
At the federal Executive, there was disagreement between the Education
Ministry (EM) and the Finance Ministry (FM), although EM has not explicitly
positioned against the position of the FM in the final stages of the legislative
process. But it fell to FM mobilizing its parliamentary assistants and exerting
direct pressure on lawmakers to try to dissuade them from adopting the rule of
mandatory matching funds from the Union (Martins 2014, translated by the
authors).
Araújo (2013) also shows this kind of internal disagreement in the formulation of the
new forestry law. The strong conflict between the agriculture parliamentary group and
the Environmentalist Parliamentary Front, quoted before, has also involved a dissension
9
See Law n.10,683/2003 and its amendments.
21
between the Agriculture Ministry, on the one hand, and the Environment Ministry and
agencies linked to it on the other. The public collisions between the two heads of these
governmental entities about this legislative process lasted about four years.
Actually, regarding environmental policy, the Agriculture Ministry is included in a
traditional
developmental
coalition
and
the
Environment
Ministry
in
the
socioenvironmentalist one. In recent years, the Environment Ministry has been moving
to the modern developmental coalition, in which the Science and Technology Ministry is
included (Araújo 2013). As they are part of different advocacy coalitions, they see
environmental policy and even the world differently. Therefore, in competitive policy
subsystems, policy disagreements between advocacy coalitions often generate intense
political conflicts, and this statement also applies to government entities that are
members of different coalitions (Sabatier & Jenkins-Smith 1993, 1999; Sabatier &
Weible 2007). In networked governance, within the government, agencies often put
themselves in a clash with the other (Dryzek & Dunleavy 2009).
In addition to integrate different advocacy coalitions related to the various fields of public
policy, as the governmental base is composed of ideologically heterogeneous political
parties, the performance of each ministry tends to be influenced by the guidelines of the
party of its chief, and potentially also by the demands of his or her home region. Biases
in this sense are partly controlled through the coordination power of the Presidency. To
some extent, they are computed as necessary costs associated with Brazilian coalition
presidentialism.
Martins (2014) draws attention to an important point: the role of the departments for
parliamentary assistance of the different ministries. These departments have the
function to monitor the day-to-day work of Congress on issues that concern to each
ministry, within budget and legislative arenas. The administrative structure on this
activity has incrementally grown and strengthened after the 1988 Constitution.
Currently, all ministries have staff dedicated to this type of task.
22
The departments for parliamentary assistance work integrated with the technical staff of
the respective ministry, which, in turn, tends to have coordinating relationships with
stakeholders at the policy network that advocate similar causes and points of view. The
dynamics is shaped by network action, in a contemporary version of lobbying that also
applies to the pressures made by the business community and civil society
organizations. These departments do ministerial lobbying.
Even within the application of powerful tools such as the provisional decrees with force
of law, these “lobbyists” of the ministries do not cease to act in Congress. In theory,
when the President unilaterally edits a provisional decree, it is assumed that this text
reflects the position of the Executive branch on the subject. In practice, after this act, the
parliamentary assistants of each ministry, or that work for other governmental entities,
will press for demands in respect of which they were not successful in the negotiations
with the Presidency, and will follow the decision process with at least some degree of
autonomy.
DISCUSSION AND FINAL CONSIDERATIONS
Data constraints influence the measure by which theory and technique can be brought
together to answer compelling and relevant questions regarding institutions and, as a
consequence, the current research in the field of legislative studies takes informality into
account only when there’s no available data on formal rules and processes. We intend
to look at informal institutions as a way of approaching an object not because of data
constraints. We do not consider the informal institutions illegal, nor undesirable or a sign
of weakness of the parliament or the democracy. We want to improve the causal
inference made by the literature, which always tend to attribute behaviors directly to
formal incentives. In general, informal institutions are mentioned but not studied.
There’s seems to be an ongoing process of institutionalization of the House’s
committees and no formal rule has changed. The seniority of congressmen has shown
to be an important aspect that divides the members of the House into two groups with
different amounts of power. Stokes (2006) differs game rules to grammatical rules, the
23
first ones are recognized by the ones who follow them and the second ones are implicit,
difficult to formalize. The institutionalization process related here seems to be a
grammatical rule. The signification of it is still an unknown: would it be a sign of
institutionalization and strong institutions or a tendency of accumulation of power on the
hands of the same elites?
The literature has indicated the force of the political parties in the legislative arena and
has completely neglected the fronts and other thematic groups. In Brazil, big issues
have not been embraced by any parties as relevant cleavages – such as reproductive
rights and agriculture groups. Would these groups be alternative channels to the
democratic representation to work? Or would they hire interests from specific lobby
groups? Why some of them are registered as fronts and others only act as totally
informal groups?
The completely under consideration of changes and additions to the texts of the
proposals written by parliamentarians and the focus merely in the authors of the bills
has attributed to leaders and to the Executive branch (and, in the view of some authors,
specifically for the President) all the responsibility for the stability of the regime, despite
the predictions of failure of the institutions. Stakeholders such as representatives of
different business sectors, professional groups, non-governmental organizations,
academic researchers and other actors have been completely neglected as so all the
debate in the course of the legislative process. The preferences of the actors have been
considering static. Nevertheless, several case studies show that within this game,
preferences are constructed and reconstructed and that the balance between these
actors is not static, but involves continuous negotiation processes. Wouldn’t this also be
the cause of the stability that is always accredited to the centralization of the process in
the leaders and the President?
The divided Executive branch and the ministerial lobby bring up a new perspective of
the whole interaction of institutions subject. The Executive-Legislative relations area of
studies in Brazil has been one of the core areas of the Brazilian political science since
the 1990’s and nevertheless it has been considering both Legislative and Executive as
24
single actors, without internal divisions. Recently, the cleavages inside the Legislatives
have begun to be considered. The multiple facets of the Executive branch and its
internal differences have not been studied with regard to its effects on the relationship
with Congress. This gap must be filled, and requires analyzes that do not take the
effectiveness of political coordination of the President as an unquestionable paradigm.
The informal seniority, the thematic parliamentary fronts, the networks of policies and
the ministerial lobby seems to show that the lawmaking process is more complex than it
has been studied until today, and the considerations of the informal elements of the
process is a step the literature haven’t given.
The new institutionalist literature in which legislative studies are based has somewhat
neglected the informal instutitutions and accredited the causality of behaviors to formal
constrains. In Helmke and Levitsky (2006) words, “Analyses of democratic institutions
that focus exclusively on formal rules thus risk mising much of waht shapes and
constrain political behavior, which can yield an incomplete – if not wholly inaccurate –
picture of how politics Works” (pp. 2).
Different of most Latin American parliaments, lots of quantitative data about the
Brazilian Congress are available on the internet. To the great joy of the researchers who
chose to look at the House, an internal rule says the leader should indicate the position
of the party to orientate his or her coreligionists and also this can be quantified. Those
facts and the American academic background of most of the Brazilian researchers may
have biased to some degree the methodology of the field of legislative studies in Brazil.
It is very hard to look at informality with a quantitative approach; it’s actually possibly a
matter of bias at the origin. In other words, the available data are the origin to most
research questions and when there’s no data available on a question it is easier to
simply change the question.
Another consequence of that is that the causal mechanism are almost inferred, the
focus is to identify behaviors and to infer the incentives that constrained them. The
researchers’ inferences tend to consider, again, only formal constrains. Legislative
25
processes should also be studied, as well as the causal mechanisms associated with
them. The lack of interest on the causal mechanisms of the observed behaviors may
have credited to formal institutions behaviors that are actually consequences of informal
rules.
The researchers of the field should pursue a broader framework of the lawmaking
process. Methodologies for analyzing informal legislative institutions should be
developed, including: case studies with application of interviews; ethnographic efforts;
comparative studies between processes of different policy areas, experiments; and
other research possibilities. In other words, we already know which the results of the
process are, but we haven’t look at the path. We haven’t done that because we intend
to reach the generalization.
Within Brazilian legislative studies, researches with more focused targets should be
conducted, moving more towards medium range conclusions than large generalizations.
This may imply not to generalize results, but to understand causal mechanisms.
Combined use of qualitative and quantitative methodologies can be a good way of doing
that. We are not saying generalization and causality is not the final objective, we’re
trying to improve the search for causality.
We are far away of saying everything that should be said about informal institutions, our
intention is to bring attention to the bias that the literature has established to the field in
legislative studies and to start an empirical approach. The issue of informal institutions
is not merely a matter of methodological concept to the science; it brings new questions
to the issue of democratic institutions. What is the origin of the stability of informal
institutions? Are they weaker than the formal ones? How does an informal institution
change? Why some informal institutions are formalized after a while and others are not?
26
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