Institutional Power and the Role of Congress as a Mechanism of Horizontal
Accountability: Lessons from the Brazilian Experience
Argelina Cheibub Figueiredo
[email protected]
Draft
Please do not quote without the author's permission.
Comments and suggestions are welcome.
Paper prepared for the Conference "Institutions, Accountability, and Democratic
governance in Latin America", Kellogg Institute for International Studies, University of
Notre Dame, May 8–9, 2000.
I would like to thank José Cheibub, Fernando Limongi and Marcus Figueiredo for their
comments on an earlier version and also Simone Diniz and Paula Stern for research
assistance.
Introduction
2
This paper discusses the role of Congress as a mechanism of horizontal
accountability in multiparty presidential systems. It will address both components of a
system of checks and balances: oversight and countervailing power.
I assume that an effective system of checks and balances not only implies that
Congress possesses the capacity to oversee executive actions in the implementation
of policy decisions, but also that it is an autonomous actor in the policy making process.
The notion of horizontal accountability stresses the oversight component of a system of
checks and balances.1 The oversight relates the outcome of actions to sanctions. 2 In
this sense it applies to the implementation stage of policies and regulations. The system
of checks and balances refers to the structure of government and the distribution of
power among its constituent parts. It presupposes equilibrium among powers.
The empirical focus is Brazil. The analysis centers on two democratic periods: the
1946-1964 period, ruled by the 1946 Constitution, and the current one, ruled by the 1988
Constitution. These two historical experiences offer an opportunity, rare in the social
sciences, to assess the effect of specific institutional variables on parliamentary behavior
and policy outcomes. This is because the latter constitution kept the form of government,
the electoral and the party systems of the 1946-64 period intacts, although it
strengthened federalism by increasing the fiscal and administrative capacities of the
lower units of the federation. The constitution thus reinforced the institutional
fragmentation and centrifugal features of the political system.
The most significant institutional change promoted by the 1988 constitution
regarding the organization of the polity refers to the distribution of power between the
executive and the legislative in favor of the former. The whole legislation produced by the
military to strengthen the legislative power of the executive was incorporated by the new
constitution.3 It should be noted that this model of concentration of power in the
presidency relies on institutional prerogatives. Consequently it differs sharply from the
so-called model of “imperial presidentialism,” based on personal attributes, seen as
peculiar to Latin American presidential systems.4 Similar institutional designs can also
1 According to O' Donnell's definition horizontal accountability is "the existence of state agencies that
are legally enabled and empowered, and factually willing and capable, to take actions that span from
routine overseeing to criminal sanctions or impeachment in relation to actions and omissions by other
agents or agencies of the state that may be presumably qualified as unlawful" (1997:15 ).
2 Referring to what O'Donnell calls vertical accountability, Przeworski, Stokes and Manin, also define
the accountability mechanism as "a map from the outcomes of actions (including messages that
explain these actions) of public officials to sanctions by citizens (1999:10).
3 It should be noted, however, that the making of the Brazilian constitution, contrary to other recent
cases in Latin America or elsewhere (the French 1958 Constitution for example), did not bear direct
influence from the executive and arouse intense mobilization of and was influenced by civil and
corporate organizations.
4 It differs also from the model of "delegative democracy" (O'Donnell, 1994).
3
be found in other new democracies, not only in Latin America but also in Southern and
Eastern Europe.5
However, the 1988 constitution and further regulations by Congress improved
oversight mechanisms established before the 1964 coup, corrected the restrictions
imposed by the military and extended the range and the scope of congressional
oversight action. 6
I will argue here that governability in Brazil today is achieved through the
centralization of the decision making process. The executive has strong agenda and
legislative powers and congress is internally organized in such a way that party leaders
hold extensive powers to control the legislative process. Institutional features of the
decision making process have a decisive role on Congress influence on legislative
outcomes. They reduce the influence of individual members of congress and thus
prevent eventual institutional conflicts deriving from differences in constituencies under
a system of separation of power. In a multiparty system, where the formation of coalition
governments is the dominant pattern,7 strong agenda and legislative powers can not be
viewed mainly as a source of conflict between the executive and the legislative.8 Instead
they are instruments to facilitate coordination among coalition members and to increase
cooperation with the government.
What are the implications of this system of concentration of institutional power to
horizontal accountability? How does it affect Congress’s oversight capacity? I have no
conclusive answer to these questions. However, in such an institutional context
horizontal accountability can not be understood as a relationship between the executive
and the legislative as separate and unitary actors. It must be treated as the result of the
relationship between the executive and its supporting coalition, on the one hand and, on
the other, between the executive and the opposition parties. Instruments for controlling
the agenda and the legislative process act as leverage to executive's capacity to control
its coalition and to preempt oversight action from the opposition. It also affects the
legislature's capacity to define independent goals and, consequently, members
motivation for more effective surveillance. Therefore, even when there exists a variety of
oversight mechanisms and an organizational supporting structure, Congress’s
effectiveness may be lacking. Horizontal accountability then becomes more dependent
on external factors.
In the first part of this paper, I intend to show that the institutions that grant the
president the power to set the legislative agenda and control the legislative process
undermine the role of Congress as a countervailing power to the presidency. They are
5 Similar trends can be identified in the post II War European democracies, labeled as the
"rationalization of parliament". On this phenomenon in various countries see Lauvaux (1993)
6 In parliamentary democracies the mechanism of accountability of the government to the legislature
is the vote of no confidence (on the subject see Laver and Shepsle (1999).
7 See Amorim Neto (1995, 1999) and Table 2 in the appendix.
8 As emphasized by Shugart and Carey (1992) and Carey and Shugart (1998)
4
operational in increasing presidential success and policy dominance in a system of
separation of power in a way similar to parliamentary systems. The autonomous
influence of Congress on policy outcomes is reduced and restricted to specific policy
areas.
The second part focuses on Congress' oversight activities. It is divided in two
sections. The first compares the legally enabled oversight mechanisms with Congress'
actual capacity of exerting effective oversight on government actions. It shows that the
1988 constitution provides an extensive array of oversight mechanisms and an adequate
legal apparatus to sanction the government. It also shows that a significant
organizational structure has been built which enlarged independent staffs and
strengthened agencies supporting congressional activities. These favorable institutional
conditions, however, are not sufficient for effective oversight. Congress’s legal ability to
take supervising initiatives is much greater than its capacity to achieve actual results. The
second section presents an analysis of investigative committees, covering fifty three
years of Congress operation .9 By comparing different political regimes, it aims to show
how institutional features combined with specific political conditions to make oversight
active and effective.
In the final section I raise some implications of the analysis for the debate on
institutional reform.
Congress' countervailing power: concentration of power and policy outcomes10
The main objective in this section is to show the differences between the two
democratic periods regarding the role of Congress in law making. Currently the success
of the executive in getting its legislative agenda approved and its dominance in the
enacted legislation increased drastically as compared to the 1946 democracy. As Table
1 shows, the pattern of legislative production in Brazil today differs radically from the one
observed in the 1946 democracy when the executive was institutionally much weaker.
On the other hand, the post-1988 patterns of legislative production in Brazil is very close
to the performance of parliamentary regimes.
9 During this period Congress activities were interrupted by the military in two occasions: one in 1969
for the whole year and the other in 1977 for 15 days.
10 This section relies on previous work done with Fernando Limongi. For details and additional
evidences referring to the arguments presented here see Figueiredo & Limongi, 1999, 2000.
Table 1: Success and Executive dominance in Legal Outputs
Brazil (1951-64 & 1989-98) and Parliamentary democracies (1971-76)
Executive
Executive
Success *
Dominance **
Brazil (1951-1964)
16.7
39.3
Brazil (1989-1998)
68.0
83.8
5
Countries with parliamentary system (1971-1976)
Germany
69.2
81.1
Australia
90.6
100.0
Austria
86.7
84.1
Bahamas
97.6
100.0
Canada
71.0
83.0
Denmark
89.4
99.4
Finland
84.3
84.3
England
93.2
83.1
Ireland
90.1
88.2
Israel
76.4
94.4
Japan
80.0
83.2
Malta
90.0
100.0
New Zealand
84.6
88.3
Switzerland
93.1
93.1
Sources: For Brazil: Banco de Dados Legislativos, Cebrap; other countries: InterParliamentary Union, Parliaments of the World, 1976.
* Proportion of executive bills presented and enacted in the same year.
** Proportion of executive bills over the total enacted laws.
The change in the balance of power existing under the 1946 Constitution is due
to the extensive legislative powers that the 1988 Constitution granted to the executive.11
If one scores agenda power provisions attributed to the executive by these two
constitutions, the sum would amount to eight for the latter constitution against only one
11 These powers include: exclusive initiative in administrative, budget and tax matters, initiative on
constitutional amendments, legislative delegation, decree power, urgency for executive bills,
restrictions on amendments changing the total amount of the proposed budget.
6
for the former.12 In addition, congressional rules allocating legislative rights and
resources gave rise to a very centralized decision making system which allowed the
president and the party leaders to control the agenda and the legislative process.13 The
centralized decision making process arising from these institutional provisions accounts
for the contrast between these two periods regarding executive success and policy
dominance. The similarity with other countries indicates that concentration of power and
legislative agenda control, usually seen as peculiar to parliamentary regimes, produce
similar effects in presidential systems .14
The comparison of the legal output in both democratic periods, in Table 2, shows
a marked difference in congress' influence. [in the first democratic period.] Under the
1946 institutional framework the legislative branch had a much greater share of enacted
laws than the one we observe under the current concentrated decision making system.
Table 2: Legal output by initiative and administration
Brazil (1951-64 & 1989-98)
Administration
Vargas
Café Filho
Ramos
Kubistchek
Quadros
Goulart
Subtotal
Sarney
Collor
Franco
Cardoso
Subtotal
Executive
Legislative
Monthly average of enacted laws - 1951 -1964*
9.5
13.7
11.6
11.6
12.7
15.3
6.3
12.4
3.3
5.2
5.0
7.2
7.4
11.4
Monthly average of enacted laws - 1989 - 1998
15.4
2.7
12.5
1.6
14.5
3.2
13.5
2.9
13.7
2.6
Total
23.2
23.2
28.0
18.7
8.5
12.2
18.8
18.1
14.1
17.7
16.4
16.3
Source: Banco de Dados Legislativos, Cebrap.
* Until 31 de março de 1994.
** Dutra's government (1946-51) was not included due to lack of information regarding the initiative.
12 This refers to exclusive initiative in administrative matters.
13 These rules include procedural rights to represent backbenchers, to control the voting process
and to restrict amendments.
14 Tsebelis (1995) sees agenda controls as the main difference between parliamentary and
presidential systems. See Cox (1997) for their role in England.
7
The variation of the legal production according to government reinforces the
interpretation that institutional agenda powers and control over the legislative process
explains the greater overall performance of the executive today. Table 2 shows a general
tendency to legislative dominance during the 1946-64 period. However, the share of the
legislative varies significantly from one administration to the other. For instance, in
Kubistchek's administration the monthly average of laws initiated by the legislature
almost doubled compared to the ones initiated by the executive while other
administrations present smaller differences or equal share of enacted laws. In the
present period, both the monthly average and the executive's share remained stable. The
absence of meaningful variations indicates that institutional variables play a major role
and that the effect of political and circumstantialfactors have a much more limited impact.
The institutional powers of the executive guarantees its dominance. Table 3 presents
further evidence of the impact of decree power and exclusive initiative on legal output.
Table 3: Enacted Laws by type and initiative
Period
1951-1964
1989-1998
Monthly average of laws by type and initiative
Exclusive initiative
Budget
3.5
7.5
Provisional Decree
3.0
Other
3.9
3.3
Total Executive
7.4
13.7
Legislative
Budget
3.4
Other
8.1
2.6
Total Legislative
Total
11.5
19.0
2.6
16.3
Source: PRODASEN; Banco de Dados Legislativos, Cebrap.
The trade off between the legislature’s share in law making in these two periods
occurs precisely in the areas that the executive acquired institutional agenda powers, that
is, decree power and exclusive initiative. While budget legislation was equally shared by
the executive and the legislature during the 1946-64 period, today it is an executive
matter. The provisional decree, in turn, is responsible for half of the executive initiated
laws. Most laws passed as a provisional decree could have been introduced as ordinary
bills since the constitutional requirement of relevance and urgency can be defined by the
executive. Congress rivals the executive in a very restrict area of legislation.
These figures do not consider the modifications made by Congress. Congress,
however, does not play a significant transformative role. The indications are indisputable.
Regarding budget allocations, one example is sufficient to illustrate the general situation:
8
in the 1997 budget proposal 62% of the investment budget items were defined by the
executive while the legislative was responsible for 29% and amended only 9% of the
items originally proposed. Budgetary laws concern modifications of the previously voted
budget through additional, special and extraordinary transfers of resources from one
budget item to another amounts to 854 billd from 1989-1998. Only four of these
proposals were rejected and less than 10% were modified.
Exclusive initiative allows strategic behavior by the executive who introduces these
bills modifying the budget when rejection would be practically impossible due to its
effects on policy implementation. Provisional decree also allows the approval of
legislation that would have been rejected if it had been introduced as regular bills. It also
constrains the legislature's strategies of modification since the legislative act of the
executive is immediately enforced. Finally, most regular bills introduced by the executive
are considered under urgent procedures which impose limits on floor amendments and,
consequently, restrain backbenchers's capacity to influence legislation. Moreover, the
study of specific policy areas shows that executive bills are not significantly changed in
the Brazilian Congress. This does not mean that Congress has no influence, but it does
indicate that it is not an institutional veto player (Tsebelis, 1995).
It is worth stressing that these institutional mechanisms do not allow the executive
to impose its will on Congress by circumventing legislative majorities. Institutional
agenda powers do not necessarily lead to "vertical conflict" between government and
parliament. They may also be instruments to solve problems of "horizontal bargaining"
among the government and its supporting majority. The provisional decree, for instance,
is in fact a powerful instrument against Congress in the hands of a minority government,
but it is also very useful for majority governments, especially those sustained by
coalitions. Agenda powers and control over the legislative process allow the
governments to protect their supporting majority from unpopular decisions and to
preserve policy agreements.15 In this sense, they foster concerted action between
government and its supporting majority and consequently increase cooperation.
However, as the analysis of the provisional decree in Brazil now shows, the pattern of
relationship between Congress and the government greatly reduces the visibility of public
decisions, the deliberative role of Congress as a public forum and consequently the flow
of information to citizens. This pattern has consequences not only to horizontal but also
to vertical accountability.
Congress as an oversight agency: legal empowerment and effectiveness
This section aims to discuss how institutional and political variables can account
for the initiative in using the available oversight mechanisms and, once they are activated,
15 On this subject see Huber (1996).
9
under what conditions they may succeeded, that is, to produce the intended
consequences. Consequences may be (1) modifications or corrections in the
implementation of policies when it deviates from legislative goals or (2) imposition of
sanctions in cases of omission, improper behavior or corruption.
In the first part, I give a general picture of the legal oversight mechanisms created
and improved by the 1988 Constitution and actual use by Congress members, parties
and committees. The second presents an analysis of the Comissões Parlamentares de
Inquérito (CPI - Parliamentary Investigation Committee) which covers the whole period
of Congress activity since 1946. It aims to review the conditions under which oversight
takes place and succeed.
Oversight mechanisms under the 1988 Constitution: legal empowerment
and actual capacity
The Brazilian Congress holds a rather extensive array of formal mechanisms
through which it would be able to exercise its constitutionally prescribed oversight
function. The 1988 Constitution and further regulations by Congress improved its role in
supervision of the federal accounts and budget implementation and increased the range
and scope of oversight mechanisms. 16
Congress oversight action is undertaken basically by two types of agents each one
comprising different organizational structures. The first is a central bureau endowed with
exclusive supervising functions and the second is the committee system that combines
legislative and oversight functions.
Routine and central oversight of government accounts is undertaken by The
Tribunal de Contas da União (TCU). This bureau is composed by nine ministers and
possesses public career personnel. One of its main constitutionally assigned tasks is
to examine and produce a report on the government annual prestação de contas that
should be approved by Congress. 17 Although formally belonging to the legislative
branch, this agency from its outset has been strongly associated with the president who
nominated its members. Senate approval is required even though there has been no
case of rejection. The 1988 constitution diminished TCU's dependency from the
executive by transferring directly to Congress the prerogative to nominate two thirds of
TCU's ministers. On the other hand, it increased technical requirements (notorious
knowledge of finance, accounting, economics and public administration) and proven
experience (over than 10 years of professional activity in those areas) to fulfil the position.
Two of the ministers nominated by the president must be chosen from the office's career
16 As Siavelis (1999) points out, in Chile the restrictions imposed by the military were not eliminated.
17 The following paragraphs on the TCU relies heavily on Pessanha (1998). Besides the account of
the institutional changes in the TCU, Pessanha provides a detailed analysis of its composition
showing its increasing independence from the executive.
10
personnel, a condition that restricted even more the president's choice. Further
legislation and internal regulations corrected previous operational deficiencies and
strengthened the TCU's links to Congress, especially with its committee system.
The constitution also increased considerably the TCU's oversight capacities as
well as the scope of its action. This bureau became responsible not only for the
accounting and financial supervision of the government but also for the examination of
the legal and economic aspects of revenue application as well as its legitimacy. This
expansion, as Pessanha points out, allows it to overcome the strict accounting
conception of oversight and to move in the direction of more effective control over the
development of governmental projects. (1999: 21)
Regarding the sanctions, the constitution also innovated by conferring the TCU the
ability to decide on the application of fines proportional to the amount of the damage
caused to public funds. TCU's decisions regarding these fines can be immediately
enforced. Finally, the constitution also institutionalized broader participation in oversight
by ruling that "any citizen, political party, association or union is a legitimate part to put
forward denunciations of unlawful or unduly action before the TCU". This measure is
obviously not self enforced; it depends on various factors external to the agency.
However, the TCU has taken initiatives to facilitate notifications of complaints.
Notwithstanding these favorable institutional regulations, effective changes in the
quality of the supervision of federal accounts have been slow. Reports on government
accounts are in general favorable with punctual criticism. TCU's reports are presented
on time but Congress approval occurs sometimes long after the report has been
publicized and always by unanimous vote. The approval of the government's accounting
after the end of the president's term has not been unusual (Pessanha 1999). If any
change has taken place it seems to come from a greater integration between the TCU
and the work of the standing committees.
Committee overseeing action takes place under different institutional formats. The
supervision of budget implementation is carried out by a large and centralized
committee, the Comissão Mista de Orçamento (CMO), composed by house
representatives and senators. Control over budget execution is crucial due to the fact that
budget appropriations approved by Congress are not mandatory and execution
regulations give the government plenty of leeway in the reallocation of approved budget
items. Moreover, the laws modifying the previously voted budget, through additional,
special and extraordinary transfers of resources from one budget item to another, require
continuous activity of the CMO since it is also responsible for the reporting on this
legislation as well as on the annual budget proposal. This committee has its own
supporting staff. Moreover, the Senate and the Chamber of Deputies have separate
consulting offices with technically trained personnel responsible for monitoring the
release of resources by the executive.
The monitoring of budget implementation relies on data stored by PRODASEN,
11
a comprehensive system of information that today carries out a thorough coverage of
Congress’ activities. This system of information was created during the military regime,
and can be seen as a positive, although unintended, consequence of the bureaucratic
and modernizing features of military rule in Brazil.18 The PRODASEN's system stores
completed information (program, place of application, function, source of revenue etc)
regarding each of the thousands budget items. The following information is associated
with each of these items: the executive proposal, the congress amendments, the
approved annual law, the reallocations approved by further budgetary laws, and finally the
monthly disbursement.
The activities of consulting offices of the Câmara dos Deputados in the monitoring
of budget implementation, due to the role of the CMO in budget policy making, is not
closely linked to the standing committees. It is directed more towards the assistance to
individual congress members who have immediate interest in the supervision due to the
non-mandatory nature of the budget. However, as the PRODASEN system can be
assessed on the Internet, associations, unions, interests groups and NGOs have been
increasingly participating in the supervision of budget implementation.
The standing committees undertake supervising activities through the following
instruments: public hearings (Audiências Públicas - AP); proposals for supervision and
control (Proposta de Fiscalização e Controle - PFC); ministers convocation to committee
meetings; (Convocação de Ministros – CM), which can take the form of a written
requirement or an informal demand, intermediated by the house speaker; requests of
information from ministries and state agencies (Requerimento de Informação - RI).
These mechanisms, previously regulated by the [houses'] Congress’s standing rules,
acquired constitutional status in 1988. The initiative to request any of these supervising
instruments is individual but it has to be approved by the correspondent committee.
Finally, also upon the request of individual members of Congress, temporary
committees (Comissão Parlamentar de Inquérito - CPI) can be formed to investigate
specific facts, usually due to the suspicion of improper behavior. The current constitution
did not change the previous constitutional regulations of this oversight mechanism.
However, it endowed the CPI with powers of investigation equivalent to those of the
judicial authorities and determined that the conclusions reached should be forwarded
to the Ministério Público for further investigation and eventual application of criminal or
civil sanctions. Unlike the previous mechanisms, the formation of an investigative
committee requires the support of one third of the legislative house.
Table 4 shows that individual members are very active in initiating the oversight
action. However, the available data regarding the consequences of these activities
indicates low levels of effectiveness.
18 For a detailed study of Congress during the military see Baaklini ( ).
12
Table 4: Committees oversight activieties
Year
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
Total
Public
hearings
(PA)
124
15
164
84
105
47
205
96
144
58
279
1216
Request of
Information
(RI)
328
285
1108
889
868
525
1319
864
953
945
1495
10029
Ministers
Convocation
(CM)
9
8
20
3
4
3
21
6
10
8
14
106
Control
Proposal
(PFC)
37
35
19
11
40
17
30
13
19
221
Source: Banco de Dados Legislativos, Cebrap.
Public hearings combine oversight and legislative functions. It is not possible to
estimate the amount of time dedicated to either one of these activities, but the sheer fact
that a public hearing occurred can be taken as an indicator of its success. 19 A large
amount of information requested from ministries is approved by the committees but it is
difficult to assess their consequences. Generally the information that is requested is
provided, sometimes informally other times in very technical terms; but when too many
requests are referred to the same ministry they are not considered (Soares, 1999). This
happens despite the fact that the information should be provided within 30 days and that
the lack of response may result in charges of crime of responsibility.
An extremely low percentage of minister's convocation is approved by the
committees and in fact takes place: only four out of the 106 requested. The great majority
(70%) have not even been considered by the committees. However, the informal
communication intermediated by the speaker to discuss subject matters within the
ministers jurisdiction seems to have taken place more frequently.20 This latter form of
communication is easier since it depends on previous agreement and may preempt
formal convocations. In reality, 50% of the formal convocation requests were initiated by
the leftist parties. Considering that their share of legislative chairs has never been higher
than 20%, this is basically an opposition strategy. Throughout this whole period a
coalition of right or center right parties have dominated the government, so it is not
19 The data available does not allow the distinction between the two. For this distinction in the US
see Aberbach (1990).
20Although I do not have precise figures on this matter, press information suggests this.
13
surprising that communication between Congress and the cabinet has taken a more
informal format.
The PFC had an even lower rate of approval and execution: only 5 out of 221. It is
worth noting that this is not a low cost initiative since the proposal for supervision and
control must include a justification, a plan of execution and a methodology of evaluation.
Proposals for supervision and control have also been predominantly used by left wing
parties that were responsible for 52%, 115 of the total requests.
The low level of effectiveness of executive control mechanisms is usually attributed
to the lack of legal power to sanction non compliance. Brazilian legislation provides a
rather extensive and adequate support to impose sanctions on identified misbehavior.
The legal apparatus enables Congress to make use of the following coercive
instruments: Congress may suspend executive acts that transgress its power of
regulation or the limits of legislative delegation; the speaker, the committees or individual
members may propose an "action of unconstitutionality" (ADIN) by which the court may
declare that the legislative act does not conform to constitutional requirements; the lower
house may authorize criminal process against the president, the vice-president and the
ministers in crimes of responsibility and the Senate can prosecute and judge the
president, the vice-president and ministers for crimes of responsibility. These latter
cases can result in the impeachment of these authorities. Even when the whole legal
process is not completed the political removal of ministers, for instance, is within the
range of possibilities.
Systematic research concerning the application of these sanctions, beyond the
conspicuous cases such as the president's impeachment, is necessary. Congress has
not used its power to suspend executive acts. The proposals of ADINs, arguing the
unconstitutionality of the executive's legislative acts are also presented basically by left
wing parties: they account for 74% of the 338 ADINs proposed by political parties.21
Formal removal of a minister has not yet happened as a direct result of one of these
oversight activities, but certainly political removal has occurred due to withdrawal of
legislative support. In some cases, public testimony before Congressional committees
have played an important role in the impossibility of sustaining ministers. One exemple
is the dismissal of the Minister of Communication after his testimony before a Senate
committee regarding his conduct during the privatization of the federal
telecommunication agency.
In summary, the Congress oversight initiative is taken mostly by the opposition
parties that obtain rather limited results. This means that the government coalition
succeeds in neutralizing the opposition's initiatives and in restraining their own members
actions.
The improvements in the informational and organizational capacity of the Brazilian
21 Vianna et al (1999: 97).
14
Congress have noticeably increased recently. These improvements comprise basically
the growth and the specialization of the personnel hired for technical support in
legislative and oversight matters within both houses' institutional consulting bureaus and
the reorientation of the support provided. Today this support is predominantly connected
to the work of the standing committees, in contrast with the previous emphasis on
assistance to individual members.22
The information system serves not only congressional parties, groups or
members' interests, but also civil associations, interest groups and the citizens'
concerns. As it has also been increasingly used by the media, it becomes a crucial
channel of information and consequently a mechanism for improving society's capacity
to exercise control over the government and Congress itself. These organizational and
informational improvements thus produce positive effects on vertical accountability.
Parliamentary investigation Committees (CPI): institutional and
political conditions
The analysis of the investigative committees over different political regimes, in this
section, aims to provide stronger empirical grounds to discuss the role of institutional
and political factors influencing the behavior of members of congress [members] and
congressional parties.
During the period between 1946 and 1999, 392 CPIs were requested in the lower
house (Câmara dos Deputados), corresponding, in average, to more than one each two
months. The results of these requests of investigations can be seen in the chart below.
Installed
Requested
(392)
Concluded
Not concluded
In course
53%
23%
1%
Not Installed
23%
The chart above shows that more than a half of the requested CPIs concluded
their investigation and that a quarter were not even installed.23 The fact that a CPI is not
installed or not concluded can not by itself be considered a failure. First of all, due to
electoral motivations, some CPIs may be requested or even formed just to go on the
record. Thus, their proponents may not have the intention to undertake the required
22 See Diniz (1993) for a study of the Assessoria Legislativa.
23 This means that they were approved but their members were not appointed.
15
activities. Secondly, in some cases the sheer approval and/or formation of a CPI may
generate the intended political consequences. They may be used as resources for
political exchange. A third reason that may lead to the formation of a CPI that will not
conclude the investigation is that they are requested in order to prevent the formation of
other CPIs. This is possible because the lower house standing orders limit to five the
number of CPIs functioning simultaneously. This rule was established with the intention
of preventing the paralisation of congress due to the excess of investigations, but it can
be used as a political resource.24 For instance, if the members of the government
coalition anticipate that the opposition is likely to gather support for an undesirable CPI,
they can, with higher probability of success due to their majority condition, form another
one just to prevent the action of the opposition.25
These considerations show that the whole process of CPI formation is pervaded
by political conflict and calculations by congress members, governing parties and the
opposition. They also show that the reasons that induce members and parties to
request a CPI are not necessarily the same that account for its success. The usually
assumed electoral motivation, i.e. that congress members seek to take as much credit
as possible for their actions, leads to the conclusion that ineffectiveness is exclusively
due to the lack of interest of member of congress to actually undertake these activities.
This account is limited because it does not consider the costs involved in the initiative
itself. Institutional and political variables must be considered to account not only for the
probabilities of success but also for the costs involved in initiating an oversight activity.
For the same reasons it is difficult to assess the effectiveness or the success of a CPI.
In what follows I will use the conclusion of the investigation as an indicator of its success.
26
Tables 1 and 2 in the appendix show the distribution of CPI's by governments and
political regimes and the distribution of legislative seats and the coalitions formed during
the 1946-99 period. I distinguish five political regimes based on the following
institutional features: the system of government, the organization of the state, the party
and electoral system and the legislative powers of the president. The 1946 Republic
(1946-1964) and the 1988 Republic (1988-1999), ruled by democratic constitutions,
share the same system of government, the federal organization of the state as well as
the same electoral and party systems. But they differ from each other regarding the
extension of legislative powers of the Executive.
Military rule (1964-1985) is split in two periods. The first period refers to the first
two years of the Castello Branco administration during which the multiparty system was
maintained. The president was not affiliated to a political party but the government was
24 As it appears in the debate before the approval of the Regimento Interno after the constitution.
25 In 1999, four CPIs requested years before were formed and then extended their deadline in order
to prevent the creation of two others that were in the queue to be formed. These CPIs did not
function and representatives saw the operation as a demonstration of excessive power of the
government in congress (Folha de São Paulo, March 22, 2000, Caderno Especial, p. A-13)
26 Further research will be done on the consequences of CPIs for policies and for politicians career.
16
supported by a coalition. The second period of military rule starts in 1966 with the
establishment, by the institutional act no. 2, of a two party system. During this second
phase the government party retained the majority of the lower house seats. Even after the
restoration of multiparty system in 1979, during Figueiredo's administration, the
government's party (PDS) held the majority of the seats and did not form any coalition
government. The military ruled at the beginning through 'institutional acts' that changed
provisions of the 1946 constitution. In 1967, a new constitution was approved by
Congress but only after an ample purge that removed the political rights of a great
number o representatives (Figueiredo, 1978). This constitution was reformed two years
later by the military during an imposed congressional recess.
Finally, the redemocratization period was restricted to part of Sarney's term, the
first civil president but still elected indirectly and governing under the authoritarian
institutional framework. The enactment of the 1988 constitution marked the beginning of
the new democratic period.
The distribution of CPI's over time (see Table 1 in the appendix), shows higher
monthly averages of CPIs requested in the two democratic periods: 0.77 in the 1946-64
period and 0.66 presently. The military period as a whole also presents a significant
monthly average of CPIs: 0.53. However, their distribution by government shows that the
greatest incidence occurs before the enactment of the Institutional Act no.5 that closed
Congress for one year and intensified repressive measures. Under the worse period of
authoritarian rule in Brazil, during Medici's administration, just one CPI was requested.
In fact, the distribution of CPIs seems to be more closely related to periods of
great political conflict. Even within the two democratic periods the incidence of CPIs
varies by government. The highest monthly averages -- more than one CPI requested -occurs in the moments of intense political conflict such as Café Filho's government just
after Vargas suicide; Jânio Quadros and Goulart governments before the 1964 coup; and
during Collor's administration in 1990-92. (Table 1 in the appendix).
CPIs.
Let's now turn to the question of who succeed in proposing and controlling the
When a CPI is installed, the house governing board indicates the members of the
committee, a chair to coordinate the committee activities and a relator to produce the final
report on the investigations and the committee's recommendations. The composition of
a CPI, as the constitution determines, should be proportional to the party composition of
the legislative house.
I identified the parties of a CPI's proponents, of its chair and its relator according
to their relationship with the government, distinguishing the three following categories:
(1) those who belong to the president’s party; (2) those who belong to the parties that are
allied with the government , that is, to the parties other than the party of the president that
hold positions in the cabinet; (3) those belonging to the opposition parties, that is, the
17
parties that do not belong to the governing coalition. Some of the latter cannot be
characterized as real opposition parties, but I will keep the label since they are in fact out
of the government.
It is plausible to expect that the parties outside the government will be the most
motivated to request investigations and that within the government coalition the members
of the president’s party will be the least motivated to do so. The behavior of the members
of the allied parties, however, will depend on the following variables: 1. the size of the
coalition, 2. the ideological distance among its components, and 3. the capacity of the
president to control the members of his own party and especially the members of the
allied parties, that is to enforce cohesion in the governing coalition. The latter condition
is closely related to institutional variables.
The institutional context seems to play a very important role both in the initiative
and the effectiveness of investigations. To determine who succeeds in proposing and
concluding an investigation, it is necessary to weigh the distribution of CPIs requested
and concluded by the size of the seats held by the government, the allied and opposition
parties. This information is summarized in the table below.
18
Table 5: CPIs requested and concluded per capita* and proportion of CPIs
concluded according to the proponent's party by political regimes
Proponent's
Party
CPI
Requeste
Pres. of
d
Republic
Rep. 46
0.35
Political regimes
Military 1 Military 2
0.13
Rep. 88**
0.16
Total
0.18
Conclude
0.22
0.09
0.05
0.11
d
Conc./Req
0.63
0.69
0.31
0.61
.
Requeste
Allied
0.53
0.11
0.08
0.22
d
Conclude
0.27
0.09
0.02
0.11
d
Conc./Req
0.51
0.81
0.25
0.50
.
Opposition Requeste
0.58
0.06
0.39
0.30
0.27
d
Conclude
0.34
0.06
0.24
0.06
0.13
d
Conc./Req
0.59
1.00***
0.61
0.20
0.48
.
Requeste
Total
0.51
0.09
0.23
0.20
0.23
d
Conclude
0.29
0.08
0.20
0.04
0.46
d
Conc./Req
0.57
0.88
0.86
0.20
0.52
.
N=370 (due to missing data on party affiliation)
*According to number of chairs.
**Include the 6 CPIs requested during the redemocratization.
*** This figure is inflated due to missing data on not concluded CPIs during this period. As table
1 in the appendix shows the rate of conclusion is 85%.
The table above, as expected, shows that members of opposition parties are in
general the most active, and that member of the president’s party the least active in
proposing CPIs. As to effectiveness, measured by the rates of conclusion, the table
shows [also] that in general the members of the presidents' party are the most
successful. This overall picture, however, varies according to the political regime.
Before focusing on the comparison between the two democratic periods, the main
objective here, I want to make some remarks on the military period. During the first
military period, we observe low levels of proposing activity (0.09 CPIs per lower house
representatives) and great effectiveness. Moreover, there is almost no difference in
19
initiative and effectiveness between the parties supporting the government and the
opposition parties. During this first phase of the military regime the president was
supported by broad coalitions led by the UDN. The first coalition held the majority of the
seats since it also included the PSD. But it lasted only until June 1964 when the
government suspended the political rights of the PSD’s candidate for the 1965
presidential election. For the remaining period, parties providing formal legislative
support to the government controlled only 29.6% of the chairs. The effectiveness of the
opposition seems to derive from the political strength of these parties. In the second
period, under the two-party system, the military presidents held the majority of the seats
and made greater use of repressive measures, but the opposition was more active and
also relatively successful in their investigative action. Most of this action, of course, was
concentrated in the period prior to the increase in the regime’s repression and during
the period of political opening that started in 1974 (see Table 1 in the appendix).
The comparison of the two democratic periods reveals a striking difference
between them regarding the proposing activity and the effectiveness of the investigative
committees. The level of activity during the 1946 democracy is much higher than today,
0.51 compared to 0.20 CPIs requested by member of the lower house. The opposition
is the most active proponent but in the first period the members of the allied parties
greatly contributed to the high level of activity observed in the investigation of government
acts. In the current system, the allied parties are much less active than the president's.
The effectiveness of the CPIs in the first democratic period is also significantly
greater than in the present one: 0.57 for the first against only 0.20 for the later. The
members of the government party are the most successful in both periods, but the [allied
parties' and the opposition's] capacity of the other parties – opposition or allied -- to
conclude their investigations was much greater in the 1946 democracy. This pattern is
consistent with the pattern of executive dominance and success in legislative outputs
described in the first section. The government reveals greater capacity to control their
supporting coalition and in consequence to prevent a more effective action from the
opposition in the recent democratic experience than in the previous one.27
The distribution of political power and the composition of the government in the
two periods plays an important role in accounting for these results. As Table 2, in the
appendix, shows the size of the coalitions formed during the 1946 period is greater than
the coalitions formed under the recent governments, increasing the costs of maintaining
cohesion among their members. The ideological distance among the parties that
participate in the government today is smaller than before. For instance, the difference
in terms of the policies pursued was greater between the PSD and the PTB during the
1946-64 period, than the difference between the PMDB and the PFL, or between the
27 On the relationship between the president and the allied parties as well as the opposition to
obtain political support in the 46-64 period see Amorim Neto & Santos (1997) and Santos (1997). For
the current period see Figueiredo & Limongi (1999).
20
latter and the PSDB in the current period. In general, ideological differences were greater
in that period than it is today.
Nevertheless, recent governments still depend on coalition support. On the other
hand, since the size of the president's party is smaller today than it was before, the
proportion of allied parties in the governing coalition is the same in both period (see
Table 2 in the appendix). Consequently, the political variables mentioned above are not
sufficient to explain the difference between the two periods. The greater capacity of the
recent presidents in controlling the oversight initiatives of the members of the allied
parties and preventing greater effectiveness from the opposition is also due to the
greater concentration of institutional power in the presidency and the centralization of the
decision making process in Congress.
Concluding remarks
The concern with governability -- defined as the executive’s capacity to get its
legislative agenda approved by Congress -- has dominated the debate on regime
performance in Latin America. Since the presidential multiparty system is predominant
in the region, reform proposals tend to emphasize the change to a parliamentary system
in order to obtain the fusion of powers, the shift from the proportional to the majority
system of electoral representation and the establishment of voting thresholds for the
access of parties to the parliament.
The previous analysis of the Brazilian political system showed that institutional
changes that increased concentration of legislative power in the presidency and
centralization of the legislative decision making process have produced the effects
pursued by those reform proposals, without any change in the system of representation.
In spite of large nominal party fragmentation in Brazil28 and the highly permissive
electoral legislation, the president's power to set the legislative agenda and to control the
legislative process increased the executive’s ability to enact legislation, enhancing
government efficiency. These changes induce concerted action from the Executive and
the members of the governing coalition and neutralize the role of individual
representatives in deliberation and decision making.
The analysis showed that besides reducing Congress’s autonomous influence
on legislative outcomes, this institutional framework also affects negatively Congress’s
capacity to control executive action. In sum, a centralized and concentrated decision
making process achieves greater governmental efficiency at the expense of the
representativeness and the accountability of the political system.
28 Based on the analysis of roll call votes, Limongi & Figueiredo (1995) show that real fragmentation
is much smaller than nominal party fragmentation in the lower house.
21
For this reason, I think that the proposed reforms would not contribute to improve
the quality of democracy. On the contrary, the existing system of representation allows
that interests and demands be channeled into the policy making system with very little
restrictions. Because of this Congress was able to play a role in the formulation of social
policies, in a context in which the executive agenda concerned essentially economic
issues. The legislation approved by Congress in this policy area assured and enhanced
citizenship rights and gave rise to measures improving environment protection,
consumer and civil rights, access to justice and punishments for racial discriminating
practices. Regarding oversight, despite the flaws in systematic supervision, Congress
established and improved a system of rules and procedures regulating public civil action
and the defense of collective and diffuse rights, that allowed the decentralized control of
government action by social movements, interest groups and citizens.29
After all, if we acknowledge that no set of institutions can assure the achievement
of all desirable political goals, that trade off is inevitable, we, as political scientists, are
left with the task of enhancing the knowledge of how political institutions function and
what effects they have, and to improve the empirical ground on which to base
evaluations of existing democracies.
29 On this legislation and the practice of the Ministério Público that it enabled see Arantes (1999).
Using McCubbins and Schwartz terminology this would mean that "fire alarm" is more likely and
effective than "police patrol" oversight.. With the risk of being too optimistic, these practices could be
seen as favorable conditions to create the network of institutions which comprising horizontal and
vertical linkages mentioned by O'Donnell (2000)
22
APPENDIX
Table 1. CPIs by government and period - 1946-1999
Government
& regimes
1946 Rep.
Dutra
Vargas
Café Filho
Ramos
Goverment
(months)
Requested
(N)
Concluded
(N)
Concluded
(% of total)
60
42
15
3
60
16
29
19
1
54
9
14
8
31
56
48
42
57
Kubistcheck
Quadros
7
12
8
67
Goulart
31
38
26
57
Sub total
218
169
96
57
Military 1
C. Branco I
24
40
34
85
Sub total
Military 2
C. Branco II
11,5
16
6
38
Costa
19,5*
31
19
61
Silva*
Médici
48
1
1
100
Geisel
60
17
16
94
Figueiredo
72
23
15
65
Sub total
239,5**
128
92
72
Redemoc.
Sarney 1
43
16
4
25
1988 Rep.
Sarney
17
10
Collor
30,5
34
7
21
Franco
27
13
3
23
Cardoso
60
32
5
8
Sub total
134,5***
89
15****
17
Total
635**
392
206
53
* Includes the Military Junta
** Excludes 12 months during which the Congress was closed.
*** Includes 1999, the first year of the second term.
**** Five CPIs are still in progress.
Requested Concluded
(Mon. Aver.) (Mon. Aver.)
0,26
0,69
1,26
0,33
0,90
0,15
0,33
0,53
0,52
1,71
1,22
0,77
1,14
0,83
0,44
1,66
1,41
1,39
1,58
0,52
0,97
0,02
0,28
0,31
0,53
0,02
0,26
0,20
0,38
0,37
0,09
0,58
1,11
0,48
0,53
0,66
0,61
0,22
0,11
0,08
0,11
0,32
23
Table 2. Presidents, Coalitions and Parties' Seats in the Lower House
President
Pres.
Party
Parties in
Government Coalitions
Pres.Rep
.
Party
% seats
Allied
parties
%
seats
Gover.
Coalitin
%
seats
Oppos.
Parties'
%
seats
PSD
PSD
PSD
PTB
PTB
PSP
PSD
PSD
PDC
PTB
PTB
PTB
PTB
PTB
PSD-PTB
PSD-UDN-PR
PSD-UDN
PSD-UDN-PTB-PSP
PSD-UDN-PTB-PSP
PSD-UDN-PTB-PR
PSD-PTB-PSP-PR
PSD-PTB-PSP-PR
PSD-UDN-PTB-PSP-PR-PSB
PSD-UDN-PTB-PR-PDC
PSD-UDN-PTB-PSB
PSD-PTB-PSB
PSD-PTB-PSP-PSB
PSD-PTB-PDC-PSB
52.8
52.8
52.8
16.8
16.8
7.9
35.0
35.0
0.6
20.2
20.2
20.2
28.8
28.8
27.3
7.7
29.4
26.9
71.4
71.4
76.0
31.8
31.8
90.0
64.1
59.5
38.0
40.1
49.9
48.5
60.5
82.1
79.7
88.1
88.1
83.8
67.8
67.8
92.0
84.3
79.8
58.2
63.5
63.3
75.7
39.5
17.8
20.3
11.8
11.8
16.1
34.2
34.2
7.4
15.6
20.2
41.7
31.5
31.8
24.2
-
UDN-PSD-PSP-PR-PL
UDN-PSP-PR-PL
-
58.4
29.6
44.0
58.4
29.6
44.0
41.6
70.4
56.0
ARENA
ARENA
ARENA
ARENA
ARENA
ARENA/
PDS
-
66.7
66.7
71.9
55.8
55.8
54.7
-
-
32.3
32.3
28.1
44.2
44.2
45.3
62.1
-
-
37.9
1946 Republic
Eurico Dutra I
Eurico Dutra II
Eurico Dutra III
Getúlio Vargas I
Getúlio Vargas II
Café Filho
Nereu Ramos
Juscelino Kubischeck
Jânio Quadros
João Goulart I
João Goulart II
João Goulart III
João Goulart IV
João Goulart V
Military rule 1
Castelo Branco I
II
Military rule 2
III
Costa e Silva
Junta Militar
Garrastazu Médici
Ernesto Geilsel
João Figueiredo
Redemocratization
José Sarney
I
1988 Republic
José Sarney
II
Fernando Collor I
II
Itamar Franco
I
F. H. Cardoso
F. H. Cardoso
II
I
II
III*
PMDB
PMDB-PFL
41.8
16.1
57.8
43.2
PMDB
PRN
PMDB-PFL
PDS-PFL-PTB (BLOCK)
PDS-PFL-PTB (BLOCK)
PFL-PTB-PMDB-PSDB-PSB
36.8
8.0
-
19.9
47.9
44.7
52.9
56.5
47.9
52.6
52.8
43.3
52.1
47.3
47.1
PFL-PTB-PMDB-PSDB-PP
PFL-PTB-PMDB-PSDB
PFL-PTB-PMDB-PSDB-PPB
PFL-PTB-PMDB-PSDB-PPB
12.1
18.1
18.1
11.6
60.2
44.2
56.1
53.6
47.5
60.3
58.0
74.3
73.9
59.2
39.8
43.7
25.7
27.9
40.8
No
Party
PSDB
PSDB
*Second term
Sources: Amorim Neto ( 1995); Hippolito (1985); Santos (1990); Castello Branco (1978); Nicolau
(1998); Banco de Dados Legislativos, Cebrap.
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