Legislative Oversight:
Interests and Institutions in the United States and Latin America
Luigi Manzetti
[email protected]
and
Scott Morgenstern
[email protected]
Paper prepared for delivery at Notre Dame conference on Horizontal Accountability in
New Democracies, May 2000.
Legislative Oversight:
Interests and Institutions in the United States and Latin America
“The prevalence of charges of corruption and of actual corruption in American politics is
not of itself proof of our inferiority in political morality to the other great nations of the
world.” (Brooks, 1909, p. 21)
“The age of Walpole was marked by corruption greater and apparently more
irremediable than any which we have yet known in American political life. Who could
have predicted that…the administrative side of British government, instead of becoming
hopelessly incapable under the increasing strain, would have become the purest and most
nearly perfect mechanism thus far known in political history?” (Howard, 1899, p. 240)
At the turn of the 20th century the United States and Argentina shared three notable
features. They had similar constitutional arrangements, were among the fastest growing
economies in the developing world, and their polities were very corrupt. While we do not
claim a direct link between corruption and development, during the 20th century the two
countries diverged both economically and in terms of government accountability and
transparency. Not only Argentina, but many other Latin American countries are still
plagued with corruption and are troubled by a pernicious form of democracy in which
presidents are seldom held to constitutional limits on their power. United States citizens,
alternatively, do not expect to pay bribes to civil servants and expect that government
accounts, if wasteful, are verified by careful accountants.
The situation must have seemed as hopeless to the Americans of the late 1800s, or
the British at the time of Walpole, as it does to Latin Americans today. American society
in the end of the nineteenth century was riddled with corruption, political fraud, and other
excesses. Big business trampled on workers as local and federal governments, far from
able to control the problem, were implicated themselves. As the quotations above reminds
us, there were large doubts about whether remedy was possible, given beliefs in the
cultural roots of the problem. What changed? In part, the Americans began screaming
from the ballot boxes for social and economic change. The Populist and Progressive
movements were expressions of discontents of multiple societal groups with regard to the
corrupt political machines and corporations that had purportedly stolen our economic
liberalism and political democracy (Hofstadter, p. 5). As a result, third parties gained
new heights and traditional parties moved to adapt the movements’ reformist platforms.
As Fujimori in Peru, and especially Chavez in Venezuela exemplify, Latin Americans’ are
now beginning to embrace "outsider" political parties as well. Merely threatening the
establishment with outside politicians, however, was insufficient to generate the current
system. In reaction to the uproar, U.S. reformers also implemented a number of
significant institutional changes which collectively, we argue, set the course for clean
government. This process of positive change leads us to conclude that reform is also
possible in the Latin American societies. In light of the dramatic investigative popularpress books about corruption in Chile, Mexico, and Argentina,1 concomitant with the
removal of presidents in Brazil and Venezuela on corruption 2charges, we may well be
witnessing the inauguration of their “age of reform.”3
An important part of the reform in the United States was the creation of new
institutions that facilitated transparency of government actions which, in turn, improved
monitoring and government accountability (and a new expectation that violators would be
caught and punished). The democratic transparent process has not always shone through
in Latin America. As a result, even well-intentioned reforms have been hindered undercut,
or sullied. For example, during the 1990s, while the wave of market reforms that rolled
across Latin America in the expectation of modernizing the economies. succeeded in
addressing unprecedented economic crises, democracy and the economic gains were often
undercut by blatant violations of the legal process and the corruption, even at the highest
level of government.
That successful reform appears reform appears to be a process of positive change
leads us to conclude that reform is also possible in the Latin American societies. In light
of the dramatic investigative popular-press books about corruption in Chile, Mexico, and
Argentina,1 concomitant with the removal of presidents in Brazil and Venezuela on
corruption charges, we may well be witnessing the inauguration of their “age of reform.”
In an effort to understand the feasibility of making a more positive change in Latin
America, this paper asks what factors explain the divergent paths in the two countries
with a focus on legislative control of the executive branch. We contend that the checks
and balances spelled out in the Constitution are actually enforced when a) public
consciousness is raised about governmental abuse of power and b) the main branches of
government are truly independent of one another. Once these factors are in place, then
the legislature is incited to develop their own capacity to fulfill their oversight role.
Definitions: Oversight and Corruption
This paper was spurred by an interest in corruption per se, but by the issue of
“delegative democracy” described by O’Donnell. In that well-known paper, O’Donnell
1
On Mexico, see Gomez’s (1996) Los Gastos Secretos del Presidente, and on Argentina
see Verbitsky’s (1991) Robo para la Corona and Hacer la Corte (1993), and on Chile,
see Matus’s (1999) El Libro Negro de la Justicia Chilena.
2
Politicians at other levels have also been under attack. The mayor of Sao Paolo, for
example, was suspended in March, 2000.
3
This term comes from Hofstadter (1955).
2
argues that Latin American presidents operate with general impunity, seldom slowed by
the constitutional stipulations of legislative procedures. While others argue that the
legislatures are not supine, it is clear that the Latin American legislatures frequently fail to
curtail executive excesses.4
This lack of legislative control can be restated as a failure of oversight. While the
failure could result from a lack of power, we will argue the failure is largely the result of
weak incentives. That is, we argue that Latin American legislatures have generally lacked
a strong interest in checking executive actions. It is also true that most Latin American
countries lack the institutional structures necessary for competent oversight, but these
structures grow from politicians who have the interests and power necessary to create
them.
In order to begin our investigation, we first must define our object of study.
Oversight is the monitoring and control of one person or institution (generally termed the
agent) by another (the principal), such that the agent acts in the principal’s interest.
Agency slack implies the ability of the agent (the executive) to pursue his or her own
interests. This slack may or may not be illegal. Only when it crosses a clear legal line is
the agency slack termed corruption. Oversight, therefore, encompasses, but is not limited
to corruption. As such, oversight encompasses both the principal’s ability to verify
actions and sanction wrongdoers or correct an agent’s objectionable decisions.
For this paper we focus on the success of the legislature (and the organizations they set
up), as the principal, in pushing the agent, in this case the president and the executive
branch, to implement laws consistent with the legislative preferences. More generally, we
are interested in the degree to which the legislative branch is successful in ensuring the
financial and administrative accountability of the presidency and executive controlled
bureaucratic agencies. Our analysis will include, but will not be limited to corrupt
practices of the executive. In the analysis we will also briefly discuss the judiciary, which
can play a crucial role in limiting or allowing corruption or reigning in executive abuses,
but our analysis will focus on the legislature.
A Theory of Reform
Though the United States was founded on a deep belief in democratic governance, it was
also founded on a suspicion of government. By the middle of the 1800s the reasons for
the distrust had become clear. The spoils system had become a source of inefficiency and
corruption and the assassination of President Garfield; emerging giant corporations were
seen as eating away at democracy, in part by buying politicians; anti-democratic and
fraud-plagued machine governments took hold of our biggest cities; and elections, the very
base of democracy, were plagued with fraud.
Fortunately, these problems were widely publicized, discussed, and converted
into campaign themes. The populist and progressive movements successfully moved their
4
See, for example, the volume edited by Morgenstern and Nacif (forthcoming).
3
reform platforms, even though their candidates suffered defeats. As a result, the United
States successfully implemented a number of institutional changes that helped the
country to overcome what was once egregious and what at one time seemed an almost
hopeless level of political corruption and a lack of accountability in government accounts.
The secret (Australian) ballot and direct primaries had great impacts in limiting electoral
fraud. Civil service reform was the beginning of the end of the rotten spoils system, and
the professionalization of the bureaucracy and the founding of professional accounting
and investigatory agencies, such as the Government Accounting Office, has made it
possible to monitor and verify government accounts and the workings of government
services. These institutions were not all formed at one time, contrariwise the US Congress
has continually passed new legislation that has aided in their (or the public’s) efforts to
expose and punish wrongdoing. While the secret ballot was introduced in the 1880s, the
GAO was founded in 1921, other important reforms took effect much after the “age of
reform.” The Administrative Reform Act in 1946 forced agencies to announce their
consideration of issues with enough advance warning to allow the legislature and other
interested parties to respond, and the Freedom of Information act has allowed the public
and prosecutors, as well as the Congress to access information about government dealings.
Further, the office of the independent counsel, created in 1973, gave teeth to the
investigations.
The origins of these institutions was generally an interest among legislators—who
had to formally ratify their foundation—in overseeing some aspect of elections or
government action. This interest is a function of public demand for reforms, the
independence of the legislators from the executive, and an electoral system that rewards
political entrepreneurs that push for reforms. That is, legislators have little incentive to
pursue benefactors that promise of future sinecures. The incentives are strong,
alternatively, where the legislators seek benefits that the electorate can bestow, and where
that electorate is supportive of strong-willed legislators who publicize and attempt to
curb executive abuses. Our goal in this paper, therefore, is to explain why the U.S.
legislators have had incentives to be vigilant with regards to executive actions, while their
Argentine counterparts have not. The thrust of our argument is that while Argentine
legislators have generally been beholden to their president, U.S. legislators have a) been
opponents of the president and b) seen benefits for promoting reform (or anti-executive)
policies.
The first step in creating an interest in reform is public arousal to the issue. Public
pressure for reforms became prominent in the United States in the latter part of the
1800s, as muckraking journalists publicized now notorious examples of political
corruption and greed. As the large number of popular press books on corruption in
Argentina attests, there has also been pressure for reform in that country, at least in the
present period. The key difference between the countries is the greater independence of
U.S. legislators, and the incentive to keep watch over their co-equal branch of government.
Several factors have contributed to the independence of and incentives influencing of U.S.
legislators. These include 1) frequent divided government which generated political
competition between the branches, 2) the adoption of primaries and the Australian ballot
4
(combined with single-member district electoral laws) that helped free legislators from
party machines, 3) high reelection rates, and 4) the professionalization of the legislature
itself which increased the self-reliance of legislators and their ability to develop power
bases.
These factors have worked in tandem to support legislative oversight of the
executive. Divided government has allowed the presidents’ opponents to build the
legislature’s capacity to check their rival. For the times when the president had a
majority of his co-partisans in the legislature, he still faced independent-minded
legislators, thanks to the electoral reforms mentioned above (which will be discussed
below), plus the high reelection rates. High reelection rates are key, since they contribute
to legislator expertise as well as the incentive to oversee the executive and thereby build
the necessary institutions to perform their tasks. The causal arrows run in both
directions, however. Polsby (1968) suggests that the legislators’ independence helped
generate a greater interest in legislative careers, which in turn incited the legislators to
professionalize their institution. In addition to inciting the legislature to develop the
necessary specialization to understand and investigate the executive branch, in light of
publicized corruption scandals and the progressive push for clean government, the
changes may have pushed political entrepreneurs (a.k.a. ambitious legislators) to develop
an interest in getting credit for reigning in executive abuses and uncovering wrongdoing.
Heidenheimer (1997) notes that journalists and political challengers (entrepreneurs) had a
symbiotic relation, in that the former relied on the latter to gain inside information, and
the latter used the publication of such material to build their political careers.5 This
suggests a strong motivation for the legislators’ development of effective oversight
mechanisms and laws that over time helped decrease wide scale corruption.
This virtuous cycle has not taken hold in Latin America generally or Argentina
specifically, as most factors that speed its turning are missing. In most cases low
reelection rates, electoral laws and practices which mitigate against reformist
entrepreneurs, and domineering presidents have hampered the Latin American legislators’
interests in oversight.
First, there is a relatively great degree of independence of legislators in Chile and
Brazil today, but these cases are exceptional. Historically party leaders have had
tremendous influence in the choice of candidates, and in many countries this influence is
still maintained. In some cases (notably Argentina, Mexico, and Venezuela) national
party leaders were or are the most prominent actors, in others (i.e. Brazil) state leaders
have been at the center stage. Several countries (notably Venezuela and Mexico) have
recently moved to a system to allow more independence of the legislators, but so far
5
Citing a 1904 article, Heidenheimer adds that political virtue was a great value. Further,
“the half million of individually elected local and state politicians...can...enhance both
their personal reputation and the public interest by calling for or expanding
investigations.”
5
legislators have not developed the degree of independence enjoyed by US members of
Congress.
Maybe because the independence is a relatively new phenomenon, the level of
professionalization of the Latin American legislatures is relatively low. There is very
limited staff support for Latin American legislators, and few have experience with the
highly technical budgeting or policy process. As a result, most legislatures must rely on
the executive branch for analysis of policy options—and without sunshine laws, most are
prevented from obtaining the necessary information from the executive and the
bureaucracy that it controls as well as the authority to take punitive actions against
offenders.
In part the lack of professionalization is the result of quite low rates of reelection
in the region. Only in Chile is the rate of reelection relatively high (and even there it is
much lower than in the United States) and in some cases, notably Argentina and Mexico
where corruption is rampant, the reelection rate is either very low (about 20 percent in
Argentina) or not permitted (in Mexico).6 These low rates also imply that while
campaigners in many countries may proclaim an interest in reform, only the U.S.
legislators have a strong interest in pursuing the reform once they actually take office.
Legislators in most Latin American countries, alternatively, must begin searching for their
next job, which may well be a function of their positive ties with the executive or other
leaders who gained their positions from the traditional system. A variety of factors
explain the low reelection rates, but the limited professionalization certainly cycles back
to affect the limited desire of legislators to return to their posts, as well as the support
necessary to ensure their electoral success.
In addition to the limited professionalization and lack of independence, several
Latin American constitutions also limit legislative influence. For example, the
constitutions of Brazil, Chile, Uruguay, and others prohibit the legislature from increasing
expenditure from the executive “request.” Other constitutions allow the legislatures only a
very short time to debate the budget bill. And at least in Argentina, a runaway economy
prevented legislative budgetary influence of any kind. In fact, even when there was a
Congress in session, inflation obviated the budget process during Alfonsín’s term, and no
budget was even proposed to Congress until 1990.
Further, while many Latin American presidents today face opposition controlled
legislatures, this is a relatively recent phenomenon. Most have had many years of
unchecked military governments, the populist regimes of Argentina and Brazil had very
large congressional majorities, and until 1997 the Mexican presidents had not faced
anything but a PRI-dominated legislature since the 1920s.
Finally, it is important to note the importance of uninterrupted democracy to
reform. At several points the U.S. cycle has been challenged, and only the continuation of
democracy has maintained sufficient grease on the axle. In addition to allowing a long
evolution of the institutions that have supported legislative oversight, democracy has
6
See Morgenstern, forthcoming.
6
allowed a free press to function, which helped generate continued public demands for
reform. Thus, we find a number of conditions have been necessary for the development
of U.S. oversight mechanisms. Some conditions have been or are present in Argentina, but
apparently they have been insufficient to generate the level of legislative oversight of the
president that characterizes the U.S. government.
Before developing this argument further, we first turn to a discussion of the
success of the Argentine legislature in overseeing the executive. That discussion portrays
data about the frequency of vetoes and the overturning of executive decrees that is
frequently lost in discussions of executive-legislative relations in Argentina. While this
discussion refutes the notion that the Argentine legislature is insignificant as an oversight
institution, we recognize that the Argentine legislature is much less effective than the U.S.
Congress. Likewise, other institutions that complement the oversight role of the
legislature in the United States, such as the courts and administrative agencies within the
public administration, perform quite differently as we analyze later in the paper.
We then turn to a discussion of the motivations that have led the U.S. legislators
to develop the institutions that have aided their oversight role. We have already noted the
importance of the public demand for reforms and a desire for reelection among the
legislators. In that section, therefore, we focus on the factors that helped that U.S.
legislators gain independence from the executive: an electoral system that rewards political
entrepreneurs that push for reforms, frequent divided government, and the adoption of
primaries and the Australian ballot. These institutions, we continue, stand in contrast to
the Argentine experience. We then argue that this conjunction of factors aided the
development of the Civil service and the Congressional Budget Office, two of the many
important institutions that have played important roles in ending widespread political
corruption in the United States. The Argentines have also developed an impressive set of
institutions that we discuss in the final substantive section of the paper. We argue there
that the lack of historical divided government, the legislators’ dependence on the
executive, and frequency of coups has not yet allowed these institutions to develop into
effective mechanisms for reigning in executive actions.
In sum, we argue that legislative oversight of the executive results from: a) a public
outcry for reform (which generally implies the existence of a free and independent press)
that political entrepreneurs can take advantage of, b) independence of the legislators from
the executive and c) longevity of democracy to continue the reform process. These
factors all contributed to the creation of a functioning system of checks and balance in the
United States. In contrast, these factors have not characterized Argentinean politics, and
they have not developed effective oversight mechanisms. But, since two of preconditions
for reform—the voters’ disgust with the current system and a long period of
democracy—are more fully in place in Argentina today, there should be new efforts to
attack old practices.
Successful Latin American Oversight
While sometimes abusive of power, the U.S. Congress is clearly an effective
counterweight to the executive and is able to use its power to amend executive policy,
7
verify executive accounts, and break executive initiatives. This characterization does not
generally hold for the Latin American legislatures (Mezey 1979), which have generally
been ineffective overseers of government actions. Still, before moving to our explanation
for why the U.S. legislature has generally been more successful in overseeing executive
actions than has been their Latin American (and specifically Argentine) counterparts,
however, it is important to note where the Argentine legislature has been successful.
While historically most Latin American legislatures were overpowered by the
executives and military governments, in the 1990s the legislatures have taken a much more
active role in policy and oversight. Three Latin American presidents have been removed
by the legislature, two for alleged corruption and a third for “mental incapacity.” As
importantly, even in countries with abnormally dominant presidents, such as Argentina,
Brazil, and Mexico, the legislatures have fought with the executives and won important
policy concessions. In Brazil, for example, Ames (forthcoming) explains that not a single
executive initiative in went through the Brazilian Congress without modification. Since
1997 in Mexico, when the PRI lost control of the Chamber of Deputies, the legislature
has fought with the president over budget outlays, the bank bailout, the pension scheme,
and the peace arrangements with the Zapatistas. In the rest of this section we focus on
Argentina, a country which has shouldered a particularly dominant president. We will
show that a) the legislature has played some oversight roles but b) it has failed to fulfill its
potential due to the conjunction of party politics and a lack of incentives for individual
legislators to attack the problem.
A) Policy Oversight
Historically, as we discuss more fully below, the Argentine executive was able to
establish itself as the dominant institution in Argentine politics. Among other things, this
meant that some of the most crucial pieces of legislation were government-sponsored and
the Congress has not resisted, influenced, or amended much of the legislation. There are
many examples, however, where the Congress asserted its power.
Due to his almost unhesitating reliance on decree powers, President Menem
(1989-1999) is often cited as the archetypal dominant executive. He became well known
not only for his avoidance of the Congress in implementing his economic program, but
also for issuing decrees of “necessity and urgency” dealing with whimsical policies, such
as the broadcast of soccer matches. In addition to the reliance on decree powers, the
image of a dominant president in Argentina has several other sources as well. First, the
legislature has often acted as a toothless opponent in budget negotiations. The president
never even presented the legislature with a budget for about four decades until the practice
was resumed in 1991, and since then the executive has left the legislature little time for
debate. More tellingly, the legislature has not shown much resolve in modifying the
budget to its own liking; in 1994 it proposed two amendments to the budget, both of
which were cut by the presidents line-item veto. Second, the legislature has not made a
concerted effort to rein in the president’s decree power, even though it has had the formal
power to do so. Decree powers were not explicitly part of the constitutional framework
8
until the 1994 reform. At that time Menem sought reelection, and in order to win this
reform, he agreed to a new constitutional section that created a committee with the power
to review (and reject) executive decrees. This could have greatly empowered the
Congress, but the Constitutional prescribed committee has never been formed. Finally,
though a bit silly, the legislature’s lack of careful oversight became clear in its careless
publication of the new constitution. Among the many changes, the constitutional
committee added an article that, apparently owing to a clerical error, was not published in
the official record, and thus is not a part of the official constitution. Such carelessness on
the highest level legislation helps confirm the view that the legislature is not an effective
institution for executive oversight.
This said, it is important not to overlook the many occasions when the legislature
has been influential to policy outcomes. The legislature has had some historical success
with overturning vetoes and it has resisted some executive initiatives. Further, the 1994
budget debate, the resignation of the finance minister, and the tax reform of the early
1990s all suggest that labeling the Argentine legislature "weak" is too simplistic (de Riz
and Smulovitz 1990; Mustapic and Goretti 1991; Mustapic and Ferretti 1995; Ferreira
Rubio and Goretti 1994, forthcoming; De Riz and Smulovitz 1990; Molinelli 1991, 1995;
Wynia 1995). In fact, these events and legislation show that apart from the decrees, the
Argentine legislature has proven to be quite viscous; that is, it has played an important
policy role by resisting and modifying a large percentage of executive initiatives.7
First though the Executive has initiated most legislation, the legislature has
retained an appreciable initiative in generating its own laws. Many of the legislatureinitiated proposals have been of little consequence, but many did have enough importance
to warrant a presidential veto. Even more telling of the Congressional influence is that
between 1862 and 1985, Congress overcame about seven percent of these vetoes, which is
roughly the same amount of cases found in the United States Congress during the same
period (Molinelli 1991:50-51).
Second, the legislature has resisted many executive proposals. In the first postdictatorship period, of the 550 bills proposed by the executive, the legislature passed just
339 (Table 1). That is, the legislature resisted almost 40 percent of the bills the executive
proposed.
Table 1: Argentina: Fate of Executive Bills:
1983-1989*
Presented
Promulgated
550
339
7
Under the U.S. Constitution the president retains no power to formally introduce
legislation in the Congress. In most of Latin America the president does retain this power
and by examining the success of the bills he proposes, we have a good indicator of
viscosity.
9
% Promulgated
% Not Promulgated
61.6
38.4
*12/10/83 to 7/8/89
Source: de Riz and Smulovitz (1990).
While we lack data on the importance of the above bills and laws, it is clear that some
important bills are channeled through the legislature and that the executive has not simply
decreed all the bills rejected by the legislature. Further, while Menem issued hundreds of
decrees, there are clear cases where he gave important policies to the Congress for
treatment. At least three well-known policies (a provision in the 1995 budget giving the
executive power to privatize state enterprises, an important labor law, and economic
reforms that led to the finance minister’s resignation) failed to pass through the legislature
and Menem did not respond with a decree.
The importance of the bills is also evident in the care with which the legislature
dealt with the proposals. Of the bills promulgated, 13 percent were given more than the
two required legislative readings and more importantly, Mustapic and Goretti (1993)
report that 62 percent of executive-initiated laws promulgated during this period received
significant modifications in the legislature (Table 2).8
Table 2: Argentina: Readings of Bills* with
Executive Initiative
#
%
2 readings
294
86.9
More than 2
44
13.1
Sources: Goretti and Mustapic 1993.
*Bills eventually promulgated
Next, the 1994 budget debate and the resignation of the powerful minister of
finance offer a particularly interesting view of the legislature's viscosity. In Menem's
1994 budget he included an article which would have given him sweeping powers to
reshape the economy by privatizing state enterprises without congressional approval.
8
The 62 percent is based on a total of 192 laws instead of 339 because laws that cannot
be modified, such as treaties, accepting awards (“condecoraciones”) from foreign
governments, and permission for the president to leave the country were excluded. Also
note that Goretti and Mustapic report 338 promulgated laws while de Riz and Smulovitz
report 339.
10
After long debates and continuous executive pressure,9 the Congress still decided to
exclude the article from the budget bill, thereby slowing the privatization and maintaining
their watchful eye.10 In an even more telling display of the legislature’s viscous muscles,
the powerful minister of finance (Domingo Cavallo) resigned, citing his inability to force
legislation through the congress as a primary cause (Clarín 7/26/96-7/28/96).
Finally, Eaton (forthcoming) describes the legislature’s role in shaping the tax
reform in the early 1990s. He argues that on this important issue where provincial
interests were at stake, Peronist and opposition legislators joined forces to amend
Menem’s bills affecting the value added tax, asset taxes, and some other ad hoc duties
(Eaton 2000).
Given the above discussion, it is clear that the Argentine legislature has played an
important and, at times, constructive role. Even at the height of Menem’s power, on
occasions the legislature withheld its assent on some executive bills and fought policies
that it opposed. In sum, while the Argentine legislature has failed to impose careful
oversight in many cases, but neither has it always abdicated its role in overseeing
executive policy proposals. We will analyze in details this apparently contradictory
behavior later in the paper.
The Motivation to Oversee: The United States.
Oversight of the executive requires both a means and a motive. The means and motive are
not independent of one another—in particular, if the legislators have a strong interest in
conducting oversight, they are likely to develop the tools necessary to undertake the task.
Thus, before discussing the oversight mechanisms, it is necessary to consider the
legislators’ motivations.
The U.S. legislators’ motivations to oversee the executive grew as they gained
greater independence from the executive (and party bosses) after the Civil War. This
change resulted from institutional changes that allowed outsider candidates to break from
bosses, as well as anger with the president caused by what legislators saw as an attempt
by President Johnson to usurp power. In the case of Argentina we have also witnessed a
legislature moving to counteract the president’s abuse of power. While both legislatures
failed in these initial steps to restrict the presidents’ excesses (Johnson’s impeachment
failed, and the Argentine high court sided with Menem) the attempts are illustrative of the
9
Publicly Menem and his economic minister Cavallo were particularly interested in this
article as the "adjustment savior" and they maintained that they needed the article to
avoid using decrees and raising the ire of the legislature while restructuring the economy
(Rosales 11/16/94, p. 3).
10
One journalistic report indicates that the article was dropped in order to win the
support of the opposition party (the UCR) on other economic themes (Soria 11/16/94).
11
legislators’ interest in strengthening their positions. Further, the attempts had long term
implications in improving the legislatures’ positions. For the United States Van Riper
(1958) explains that the impeachment fight not only “ruined” Johnson politically, it
returned the Congress to “political supremacy” (p. 67). Illustrative of this new position,
he notes that the Congress did not repeal the law that was the center of the impeachment
quagmire, the Tenure of Office Act,11 until 1887. For Argentina, while the legislature was
not very successful in limiting Menem’s immediate political weight, they did win
important constitutional revisions that could limit future presidents.12
A precondition for the legislature to act against (or desire to act against) the
executive is the independence of legislators from the executive. While this may seem quite
obvious, the source of the independence, or lack thereof, is not. In addition to the crucial
fight over impeachment, a number of institutional changes in the late part of the 1800s
and early 1900s (which are not unrelated to the means of oversight), combined with
multiple episodes of divided government, facilitated the growth of independently-minded
legislators in the United States. In Argentina, by contrast, divided government has been
rare, the low rates of reelection and the electoral system has aided party leaders (starting
with the president) in maintaining control of rank-and-file legislators, and their have been
anti-democratic consequences of legislative assertion of power.
We have already discussed the importance of longer legislative careers and
continuous democracy. We have not yet explored the relationship of divided government
with oversight, nor the institutional changes which fostered legislators independence. It is
to these tasks we now turn.
Divided Government
There are arguably two distinct dynamics in executive-legislative relations. The
first is when the president’s party has a majority in the legislature. This type of system
makes oversight more difficult, since for various reasons the legislative majority would be
reticent oppose their partisan leaders. We argue below, however, that U.S. legislators
have been independent of the president, making some oversight feasible. Perhaps,
however, the second type of system—an inter-partisan rivalry played out between
competing branches of government (and generally played within the democratic rules of
the game)—is an even more effective means to gaining oversight.
The earliest institutionalist, Madison, saw the necessity of having competing
branches of government to prevent the corruption of power. He therefore proposed
strong motivations for each side to keep watch over their rivals. Each house was elected
from different constituencies and at different times, and theoretically, executive was to be
The law had forbade the president from removing appointees without Congressional
approval.
11
The reforms create a Congressional commission to oversee and approve executive
decrees. To date the legislature has not convened this commission.
12
12
Divided
Unified (Republican)
Unified (Democrat)
1887
1900
1912
1925
1937
1950
1962
1975
1987
2000
Year
relatively uninvolved in legislative elections. Partisan politics, however, threatened to
eliminate an important part of the barrier between the houses and branches.
Until 1875, the U.S. federal government (as well as many big city governments)
were frequently under the control of single parties.13 Not only were a majority of
legislators and the president of the same party, the legislators were under the direct
control of the bosses and leaders that controlled the nominations. This helped generate
machine politics, irresponsible government, and corruption. Writing of his own times,
Cleveland rants against political bosses who controlled elections and avoided
responsibility for their actions. He scowls that after elections, voters’:
“slumbers have been disturbed the odor of stink-bombs and the coarse gossip of
scandal-mongers, the insidious methods of a hungry and disappointed clientele of
the ‘organization’ through which bosses work to weaken the confidence of the
people in the many who has had the courage to take a stand against the bosses”
Others concur about the pernicious effect of unified party control. Discussing the U.S.
states and city governments, Benson (1978) argues that “most electoral fraud occurs in
areas of one party dominance” (p. 169). These pernicious effects have been countered in
the post-civil war period by the frequent divided government (Figure 1).
13
Between 1875 and 1933 divided government was quite common (though there were
several periods of unified control). This was a marked contrast from the period from 1800
to 1834 when a single party generally held the presidency and dominated the legislature.
Divided government was then common until 1860, until the Republicans gained and held
unified power for 14 years.
13
Independence of Legislators: The Australian Ballot
The independence of legislators within the president’s party is a function of the
Australian ballot and the virtuous cycle of professionalization of the legislature which led
to an increased desire for legislators to seek reelection, as well as a number of resources
that made oversight feasible.
Cain, Ferejohn, and Fiorina (1987) argue convincingly that the source of U.S.
legislators’ independence from their parties, their “personal vote,” has been the single
member district electoral system, combined with presidentialism. The legislators,
however, have not always been such independent operators. Part of this independence
has been owed to the nominating system, in which candidates collect signatures and pay a
relatively small sum to register their name on primary ballots. Earlier in our history
candidates were named in back room deals, leaving candidates beholden to party bosses.
Thus, key to the development of legislative independence was the weakening of boss rule.
“To put the situation briefly: In place of the people controlling their service
organization—the government—we have had ‘boss rule’. Utilizing the lack of
popular appreciation of the essential features of an effective mechanism of
popular control and taking advantage of the absence of responsible leadership, the
designing few, who look upon government as an institution for the grinding of
their own grist, have so operated the electoral system that there should be no
course open to electors except to elect men picked out for them by the
‘boss’…The power of the boss has been developed through his ability to build
and operate a machine that converts the political campaign and the election into a
marionette show.” (Cleveland, p. 248-249)
Thus, the reforms that ensured fair elections and an end of negotiated outcomes or
imposed candidates were not only a direct step towards cleaning up government, they had
an indirect effect by counteracting political machines. Further, since politicians
unaffiliated with the machines could now participate, there was a growing chance that
anti-machine politicians could ride a reformist platform to victory.
Among the tools available that aided the machines in controlling elections were the
caucus (as opposed to an open primary) and the less-than-secret ballot. Before the
Australian ballot was adopted it was common for parties to print their own ballots, often
on brightly colored paper so as to distinguish themselves from other parties. This,
however, compromised the secrecy of the vote (c.f. Evans 1919). Some states passed
laws to ensure white paper ballots, but vote buying and other abuses continued. Harris
(1934) notes other abuses, such as rolling numerous ballots together or falsifying ballots.
In short, the author concludes, elections were simply shows without public
accountability.
In the United States the Australian ballot—a single ballot printed by the
government and listing all candidates—was first proposed in the early 1880s in a series of
14
pamphlets and magazine articles.14 The first votes on the reform were defeated (in 1885
and 1887 in Michigan), but by the late 1880s, reformist leagues pushed several states to
adopt it. By 1900 most states had passed similar legislation, thought it was not universal
until much later.15
The reformers pushing the Australian ballot had two primary goals, only the first
of which was arguably accomplished (and only some credit is owed to this change). The
successful goal was to diminish political machines’ control over candidates and thereby
legislatures. A New York Times editorial noted that: “the opposition of the Democratic
members of the legislature to the Saxton bill [which introduced the Australian Ballot in
New York]…were for the most part small city politicians who owe their chances in
politics to the methods which that bill was intended to destroy” (cited in Evans, p 20
n.4). The Australian ballot was intended to break this power by ending the machines’
monopoly of nomination (see Evans, p. 22, n. 3).
The second goal for the reformers was to decrease campaign corruption and reduce
the influence of money in elections.16 Here the reformers had some success, since ward
leaders could not verify how who voters were choosing as they could when they voters
had been required to deposit different colored ballots into a box.17 The reformers were also
interested in reducing the role of money in elections, and since this has also been a theme
of the 2000 presidential election, it is hard to argue that the reformers around the turn of
the 1900s had much success in terms of this goal. The idea here was that by transferring
the cost of printing ballots from the candidates to the states, the reform was expected to
reduce the cost of campaigns and, as a result, the level of corruption. This reduced cost
Harris (1934) and Evans (1919) both discuss how Australian ballot was adopted in
Australia, the UK, and then the United States (mostly between 1887 and 1900) after long
debates and many political obstacles. It was first advocated in Australia in 1851. Its
advocate became a member of the South Australia government in 1857 and the proposal
was adapted there and later in other provinces (Harris p. 153).
14
Some states, such as North and South Carolina, however, did not implement the
Australian ballot until much later.
15
Note that the tie between machine politics, corrupt elections, and the problems with
athe spoils system were key to the reform movement. The first advocate for the
Australian ballot in the United States was a member of the Civil Service Reform
Associaiton (Evans 1919, p. 18).
16
Opponents, alternatively, argued that bosses would then have to pay off only the few
ballot judges instead of multiple voters—thus secrecy would be an impediment to an end
of corruption. Their argument is summarized by a quote in a parliamentary debate record:
“Nothing was supposed to prevent misconduct and robbery at night so efectually as gas
lamps” (Lord Claud Hamilton, in Hansard Parliamentary Debates CXCIV, 1505, cited in
Evans, pp. 21-22 n. 4)
17
15
was also supposed to help outsider candidates, which would further dilute the machines’
power. The reforms may have eliminated the printing costs, but ambitious
politicians—and donors seeking influence—have always found new needs for money.
In addition to ballot secrecy, the reformists sought to end the corruption in the
primary system, which until that time had not been under the same laws as the general
elections.
“Bribery of voters in an elections, although subject to severe penalties under the
law, did not constitute an offense in a primary or caucus and was not punishable.
Voters might be bought and sold with no pretense of concealment, for there was
no remedy or penalty at law. Another device was the manipulation of the count
of the votes. Where the issue was determined by a mass meeting of voters, an
autocratic chairman might easily decide the controversy, and from his ruling there
was no opportunity for appeal. There was no guaranty that a vote by ballot
would be permitted; or if sufficient progress had been made to provide for a
written or printed ballot, then the temptation to trickery and fraud was found
irresistible. The ballot-box might be stuffed, the count of the ballots might be
falsified, and any one of a hundered ingenious devices might be employed to insure
the result desired.” (Merriam and Overacker, 1928, p. 6).
In response to these problems, almost every state enacted primary legislation by 1917,
though many states did not mandate primaries for all elections (Merriam and Overacker,
p. 61). The main effect of these laws was to take away power from local bosses. Now,
instead of back-room nominations, anyone could compete for election, merely by
collecting signatures and paying a small registration fees.18
Merriam and Overacker also report that efforts to reform these systems faced
entrenched interests and there were many attempts to repeal the primary laws. In
California, for example, reform of the primary system was realized only after a violent
factional struggle. In New Jersey, the Democrats opposed reform, but the Republicans
were so divided that it was loudly debated at the state convention in 1927. In other states
several reform attempts failed before winning approval, and in many states politicians
fought for long periods to circumvent or reverse the laws.19 The new system was also
challenged in court, with opponents contending that the Australian ballot “embarrassed,
hindered, and impeded the electors in exercising their constitutional right of suffrage, that
it established physical and educational qualifications for voting in violation of the
Constitution, and prescribed restrictions upon the eligibility to office” (Evans 1917, p.
57).20 The courts, however, upheld the constitutionality of this reform.
18
See Merriam and Overacker (p. 77) about the fees.
19
See Albright, (1942) and Meriam and Overacker, pp. 100-103.
Evans extracted this specific criticism from the veto message of the governor of New
York.
20
16
Success in winning these reforms meant freedom from the yoke of machine
politics. Further, since legislators were free from the party bosses, and the public
demanded change, the legislators could make a name for themselves as reformers.
Successful Reform I: Civil Service
A key early institutional change in the United States that much of Latin America
has continued to resist was the implementation of a meritocratic civil service. This
policy, we argue, was the result of divided government, and a public outcry for reform,
that was spurred by a tragic event. This conjunction of events and partisan divisions has
not been fulfilled in much of Latin America (Geddes 1991). As a result, few Latin
American countries have completed civil service reforms.
In the United States, presidents and others who were involved in the process
recognized that the “virus of the spoils system” (Perry Powers, p. 278) contaminated all
aspects of the federal (and local) government. For example, the spoils system prevented
the professionalization of the bureaucracy, since experience was not rewarded and
qualifications were secondary to cronyism for awarding jobs. The system also helped
breed irresponsible government and widespread corruption associated with machine
politics. Wheeler (1919), for example, citing another book on the spoils system, links the
terribly corrupt Indiana hospitals to the “incompetence of the political hacks that were
put in charge of them” (p. 486). This problem did not go unrecognized. A series of highlevel reports in the 1820s through the 1840s severely criticized the system (Perry Powers
p. 247) and helped to generate support for change, 21 but reform attempts failed.
How can such a system be reformed? Many analyses of the progressive period
suggest that the public outcry about corruption led to policy changes. But, theories of
collective action would suggest that no individual legislator had an interest in voting for
reform. That is, while everyone might benefit from a reform of the system, sitting
legislators would stand to lose their access to resources—the vary source of the current
position. How might we explain this?
Geddes (1991) argues that political competition is key. For her, incumbents will
only vote for reform if the opposition can capitalize on a reform agenda and the change
will not mean unilateral disarming of electoral resources. Thus, they only vote for a
meritocratic system if a) reform is an important campaign issue and b) access to patronage
is split relatively evenly between the incumbents and the challengers, so that incumbents
and challengers are equally affected. Thus where there has been little competition, as in
Argentina during much of the 20th century, we would not expect reform. Geddes,
however, does not address this question but focuses on the cases which have had
21
Specifically the reports criticized a 1820’s law that mandated four year terms for
bureaucrats, ostensibly to allow rotation of office. The reports called for the repeal of
that law.
17
extended periods of democratic government since 1930. She finds that Uruguay,
Venezuela, and Colombia approved reform of the civil service at times when the
opposition had an important claim to power (such as control of the legislature) and a good
chance of winning the presidency. In contrast she finds that legislators in Brazil and Chile
had few incentives to vote for reform, and as a result, reform efforts floundered.22
This theory is also consistent with the U.S. experience. Between the 1820s and
1840s the incumbent party was reasonably secure, as the Democrats held control of both
houses and the presidency for that whole score of years, except 1826-1828.23 During that
period, then, the incumbents should have been wary to reform the system which they
used to develop and maintain political support. But in the 1880s divided government was
common, so neither party could have felt particularly secure in maintaining the executive
office (and access to spoils). Further, due to the legislature’s antagonism towards
Johnson, the legislature increased its own power over the executive and “exploitation of
the spoils of office…became more and more blatant.” (p. 67, Van Riper) The concerns
about control of spoils, plus their heightened use, was insufficient to generate reform,
however. To these factors must be added the great public demand following the
assassination of President Garfield by a spiteful and spurned spoils-seeker.
Not all of these necessary pieces for reform were in place when the subject of civil
service reform first made its way to the Congressional floor. The spoils system had been
attacked since the 1830s, but the public demands for change did not rise until the 1870s
and reach a crescendo until the death of Garfield in 1882. With the rise of public
disharmony, President Grant (1869-77) began to introduce reform projects in the 1870s.
His first efforts failed, in large part because important parts of his own party, which
controlled both houses of Congress until 1876 opposed the reforms.24 But during the
1876 campaign, as a “sop to reform” (Van Riper, p. 75, n. 19) the Congress approved a
bill making it an “indictable offence to demand, pay or receive assessments from officeholders ‘for political purposes’” (Wheeler, p. 488). 25 Efforts to further the reform
22
In discussing the case of Chile, Geddes adds an additional variable to the analysis: the
open list system. In these systems, she argues, legislators are more concerned with
battling co-partisans than cross-party rivals. For this reason minority parties cannot band
together to pass reforms that would work against the executive.
Until 1824 the Democrats were known as the Democratic Republicans. The Democrats
were then formed in 1828. The president’s supporters were labeled simply
“administration” for 1824 and 1826 (Stanley and Niemi, Table 3-17).
23
Van Riper notes that Grant was dependent on the “patronage minded conservatives” of
the Republican party, and did not have the full support of the liberals either (p. 69).
Therefore in spite of formally calling for reform and creating a civil service commission,
Grant dropped the issue.
24
25
In 1871 the Congress did pass a bill authorizing President Grant to reform the system,
18
process languished, however, until Garfield’s assassination in July 1882. Just six months
later, Congress passed the landmark Pendleton Act, thereby inaugurating our merit based
bureaucracy. 26 While the importance of the assassination is clear, the change was made
possible owing to the Republicans’ concern with their loss of control. The Republican
Congress resisted reform until their very poor showing in the 1882 midterm elections.27
Pendleton had proposed his bill in 1880, for example, but no action was taken. After the
1882 election, however, the Republicans began to fear loss of the presidency which they
had held throughout the post-civil war era, and with that, the possibility that their own
appointees would be replaced. The New York Times colorful commentary noted in the
Republicans the “active zeal of these converts preaching the blessed truth that those who
are in ought not to be put out” (12/14/1882; cited in Van Riper, p. 94). Thus if divided
government per se did not generate reform, the fear of divided government was a
significant factor.
The Budget and Accounting Act of 1921 (transferred to Executive office 1939)
The continued interest in oversight, combined with divided government, contributed to
reforms of the first few decades of the century. There was also greater need for legislative
oversight, as WWI tremendously expanded the government’s reach and budget. Until
that time the budget had been dealt with through a very decentralized system. Each
executive agency was greatly independent as the executive lacked a central office to collect
but they failed to authorize any funds to set up the necessary commission (Wheeler, p.
488).
26
It is important to note that the act was not immediately effective. Perry Powers
(1888) argued that the Pendleton Act did not cover enough workers to end the spoils
system. Wheeler does admit that until after Cleveland, “the reform continued a barren
ideal.” It thus required Roosevelt’s “courage and wisdom…[to transform the system
into] a vigorous purifying practice. Writing, however, saw the 1883 law as the basis for
improvements, and further extensions, as new laws gradually increased the coverage from
14,000 workers in 1883 to 300,000 in 1919 (Wheeler, p. 491).
Further, Geddes adds that there was retrenchment during periods of unified party
rule. When the Republicans gained political dominance after 1896, President Mckinley
began to disassemble the system. She adds that if it were not for McKinley’s
assassination, the U.S. system might today look much more like those found in Latin
America.
The Republicans went from holding a 152-130 majority (with 11 others) in the house to
a 119-200 (with 6 others) minority. They did, interestingly, hold a majority in the senate
after the 1882 election.
27
19
budget requests and synthesize them with expected revenue. It was not the president,
however, that took the lead in creating the centralized budget agency. Led by
Representative Good of Iowa, the Congress moved to counteract “extravagance,
inefficiency, and duplication of service…[for which] no one is made responsible” (Marx,
citing the Congressional Record p. 657). The new Bureau of the Budget (renamed Office
of Management and Budget in 1970), therefore, helped identify a responsible agent and
create the transparency necessary for congressional oversight. Further, the agency was
required to assist legislative committees and turn over any information the Congress
requested (Marx, p. 669).
In addition to facilitating the Congressional oversight, the Congressional reformers
saw the new executive budget agency as a tool for facilitating the executive’s ability to
check on his own team members. Some of the most corrupt administrations were not
headed by corrupt presidents. Ulysses Grant, for example, was known as uncorruptable
and other presidents apparently were unaware of their appointees’ shady dealings. Thus
the new bureau, which could demand to see any documents from any bureaucratic agency,
was meant to allow the president the information necessary to control the multi-tentacled
administration (Marx, p. 662, 669).
Reforming the executive branch, however, was insufficient. The Congress also
needed a policing system, which they designed by reforming their internal structures. This
need was met by transferring power from the multiple standing committees that had
approved government expenditures and concentrating such authority in the
Appropriations committees of each Chamber” (Marx, p. 659). Thus while the creation of
the Budget Office certainly helped the president to concentrate his powers, the Congress
took care not to abdicate its powers of vigilance. In so doing, it should be noted, the
Congress also made itself more responsible to the public (and the executive). This lack of
responsibility had been an another important issue at the time (see Cleveland, 1919 p.
252)
As important as that internal change, the Budget and Accounting Act created a
new agency that was under the control of the Congress, the Government Accounting
Office (GAO). Though its role has changed over time, the main role of the GAO (headed
by the comptroller general) in its early years was to audit government spending (Petrei,
1998).
This reform shows the importance of the unwillingness of Congress to cede
authority to the executive, legislators’ interest in oversight, and divided government.
Following the period of legislative preeminence, Theodore Roosevelt and Woodrow
Wilson began to reassert the power of the presidency. The Congress, however, was
unwilling to abdicate its role to the growing executive. During Wilson’s presidency, at
least one house of Congress was always controlled by the Republicans, who were
unwilling to allow Wilson to control, who was known for buying the support of
legislators when necessary. An important part of the legislative debate over the reform
turned on whether it would give too much power to the executive. Rep. Good, however,
argued that the reform actually enhanced Congress’ power by assuring them more
information and a method for acting more efficiently (Stewart, p. 202)
20
The origins of the budget reforms can be traced to William Howard Taft’s
administration (1909-13). Taft argued for the need for Presidential control over the budget
in order to make the government “more responsive to public opinion and responsible for
its act” (cited in Stewart, p. 184). The Congress, where the President’s Republicans only
controlled the Senate, was wary of strengthening the President and would not even fully
support a commission that Taft set up to develop the idea of reform and promote it
(Stewart 185-86). Taft and the Democratic Congress continued to spar over the reforms.
When Taft issued an executive order demanding that all bureaucratic agencies pass to him
budget requests, the Congress passed a bill abrogating this order (Stewart p. 187). The
President’s budget that year (1912) was not even considered by the Congress—and only
the Republican Senate, not the Democratic controlled House printed Taft’s budget
requests (Stewart p. 188).
The Budget and Accounting act was passed with only minimal dissent under
Harding’s new unified government, suggesting that executive-legislative relations were
more important than partisanship in defining the bill.28 Still, divided government may
have played some role, since the bill was originally approved in both houses of Congress
while Wilson was in the White House. Wilson ultimately vetoed the bill during his last
year in office (1919) due to what he perceived was too much legislative control.
Specifically, he objected to the provision that allowed the Congress, by a joint resolution,
to remove the Comptroller General. He argued that he supported the object of the bill
(concentrating the budgeting authority for the executive) but that the president, not the
Congress, should have the power to remove the head of the Government Accounting
Office (Stewart p. 208). The Congress was unable to revise the bill before the end of the
term, but then brought the same bill back up for Harding to sign, which he did in 1921.
In sum, the budget fights show Congress reasserting its authority, which had been
waning since the accession of Roosevelt (and later Wilson). The near unanimous vote
helped the president to consolidate power, but it also created a more transparent system
and allowed the Congress more access to information. Armed with their new internal
organization, as well as their own auditing agency, the legislature laid a foundation for
effective control of their political counterweight.
Legislative Oversight and Corruption in Argentina
The Lack of Legislators Motivation Argentina
The conjunction of factors we discussed above goes a long way towards explaining
the precariousness of oversight mechanisms in Argentina. In this section we provide a
historical narrative with a focus on the institutional weaknesses of the agencies entrusted
with such a task as well as the array of incentives and penalties used by the Executive to
28
Morstein-Marx (p. 656) claims that since there was virtual unanimity in voting, this
was not a partisan issue.
21
deter effective control since the 19th century. As we shall see in a moment, the Executive
was far too dominant, and the legislators far too cowed or disinterested, to allow any true
scrutiny into its actions. As a result, the type of Congressional oversight developed in
the United States failed to materialize in Argentina. Civil service recruitment was too
often tied to political allegiance, rather than merit. The Courts, after enjoying some
prestige at the beginning of the 20th century, progressively retreated into a subsidiary role
as the fear of retaliation from civilian and military leaders alike, made job security
everything but safe. Public disgust with government, legislative, and judicial corruption
could not find any institutional outlet, thus producing a widespread sense of cynicism
among Argentines with regard to accountability issues. Not surprisingly, some strata of
society came to support military coups hoping that at least the armed forces could clean
up what was perceived as being rampant corruption plaguing civilian administrations,
regardless of the party that controlled them (De Imaz 1970). To understand how this
could happen we now turn to a brief description of the evolution of Argentine
institutions.
Soon after gaining independence from Spain in 1816, Argentina fell into a state of
frequent civil wars usually pitting the province of Buenos Aires against its rivals in the
interior of the country. The 1853 Constitution, after minor amendments passed in 1862,
put the legal basis for the country’s future. The Argentine Constitution took that of the
United States as its model. In fact, it clearly spelled out a formal division of powers
across the three branches of government and many provisions were taken almost verbatim
from the U.S. Constitution. However, the Argentine founding fathers including their most
influential member, Juan Bautista Alberdi, were extremely concerned with some of the
possible consequences of applying the U.S. model in its entirety. Alberdi and his
colleagues were afraid that, in view of decades of civil wars suffered by Argentina right
after its independence, the country could break apart again if a stalemate was to arise
between Congress and the Executive (Shamway 1991; Nino 1992). By the same token,
the Argentine founding fathers regarded the economic development of their scarcely
populated country as the top priority. Accordingly, they reasoned that a strong
presidency could best guarantee law and order which was deemed as an indispensable
prerequisite for economic progress. Thus, Alberdi and his colleagues included in the
Argentine Constitution features typical of an executive-dominated political system, which
they borrowed from the Chilean Constitution (i.e., the presidential terms was fixed at six
years without immediate re-election, cabinet ministers did not have to be approved by the
Senate, and the executive prerogative to declare the state of siege when Congress was in
recess was liberally concived). As a result, as opposed to the United States, the
presidency dominated the political and legislative agenda from the start, putting both
Congress and the judiciary on the defensive. The situation that ensued was thus one
where the president had a substantial free hand in running the country. With Congress in
session only a few months per year the president could rule through decrees during the
recess period. Moreover, the president could discipline local governors and their
legislatures by exercising the right of federal intervention, which was vaguely defined in
the Constitution and left substantial room for interpretation. In short, from 1853 until
22
1984 the Argentine Congress was capable of very limited powers to restrain executive
authority. A series of authoritarian governments that ruled the country intermittently
from 1930 to 1983 made law enforcement by decree the norm. Unfortunately, this
pattern further emasculated whatever checks and balances existed before in checking
executive authority.
In addition to the strong presidentialism generated by the constitution, the
electoral system prevented the legislators from developing the independence necessary to
have an interest in checking the executive. The Argentines moved in the early part of the
1900s to impose a secret ballot, 29 but because they have always used a closed list system
of proportional representation,30 legislators have been dependent on the party leaders
who draw up the list. This, combined with the frequency of overwhelming presidential
majorities in the Congress—when Congress has been open—has severely limited
legislative independence.31
An important result of frequent military governments has been the slow
development of legislative institutions. Reform efforts required constant tinkering in the
United States, as early attempts left important loopholes. Thus it is not surprising that
Argentine legislators (even if they had wanted to pursue reform) failed to build the
necessary institutions to counteract the constantly increasing executive complexity or
abuse of power.
While we have not emphasized the role of the courts in supporting legislative
oversight for the United States, we cannot overlook the role the Argentine courts have
taken in supporting executive dominance in that country. Prior to the 1930 coup, the
Argentine Supreme Court was generally regarded as a rather professional and independent
institution. Indeed, between 1860 and 1929 the Court for some analysts was a
“stabilizing political influence and a soother of political passions in a way that even the
U.S. Supreme Court probably did not” (Miller 1997:232). Yet, the Argentine Supreme
Court’s decision to treat the authoritarian government created in 1930 as one whose
credentials could not be judicially questioned began to erode its prestige, as well as
showing that the court was unwilling to counter executive abuse.
Even if the court had been willing to challenge the executive, constitutional
limitations would likely have prevented it from playing a serious mediating role. Similar to
the U.S. Constitution, the Argentine Constitution of 1853 does not explicitly state that
29
The Sáenz Pena law of 1912 guaranteed a secret and obligatory vote.
30
The Argentines did use single member district elections for a brief time in the 1950s.
It should be noted that there have been some periods of divided government in
Argentina, notably the period of 1932-1938 under Justo, 1938-1942 under Roberto Ortiz,
and 1963-1966 under President Ilia. Justo was a military leader who was elected in 1932;
Ortiz resigned for medical reasons, but his successor was removed by the military; Ilia
was deposed by a coup in 1966.
31
23
the Supreme Court can exercise judicial review. The Argentine Supreme Court tried to
emulate its U.S. equivalent by establishing a tradition in this sense but for several reasons,
it has had much less success. Unlike many European countries where specific
constitutional courts exist, any federal Argentine judge can perform judicial review.32
But, the Argentine judiciary is severely limited in this power, since the applicability of a
ruling remains confined to the plaintiff and the defendant, instead of constituting a
precedent. Previous decisions from the Supreme Court and the Courts of Appeal can be
used to adjudicate a similar case debated in lower courts later on but there is no obligation
to abide to them. As a result, the Supreme Court and Appeal Courts’ clout in developing
binding jurisprudence in Argentina is far more limited than in the United States and
imposes smaller restrictions on the executive and the legislative branches.
Early attempts at Reform
Early attempts at reform substantiate two important themes that we discussed above.
First, they show the importance of the opposition in instigating reform. They also show,
however, why Argentine reform has failed: the opposition has been willing to use nondemocratic means to address the problem. As a result, the Argentines have paid for short
term results (i.e. dealing with immediate problems) by curtailing the development of
effective oversight institutions.
Detailed reports of widespread government corruption date back to the colonial
period (Rock 1987). The anarchy that followed the independence from Spain added to
the abuses of power and cronyism by local strongmen. Starting in the 1880s, the
oligarchic governments that ruled Argentina until 1916 made an effort to create a
professional civil service mixing elements of the French (line ministries) and British
(Central Bank) models. Nonetheless, the Executive retained ample freedom to interfere in
recruiting standards to ensure the political allegiance of the public administration. After
the Radicals took control of both the presidency and the legislature (1916-1930) they
used government jobs and contracts as a way to reward their supporters as their
conservative predecessors had done. To discipline the resistance of recalcitrant governors
of conservative leanings, President Hipolito Hyrigoyen (1916-22; 1928-30) often used the
right of intervention by the federal government in local affairs in ways that outraged the
opposition in Congress. In fact, the conservative bloc in Congress justified the 1930
military coup arguing that it would put an end to the rampant corruption and Executive
abuses that had characterized most of the Radical era. This points to a weakness of
democratic institutions at the time and a widespread tendency to bend rules and
regulations to pursue partisan ends. Indeed, once back in power, the conservatives did
much of the same but in addition they overtly practiced electoral fraud as a way to keep
Like in the United States, a federal judge cannot issue opinions of constitutional
significance unless a case exists.
32
24
the hated Radicals out of power. During his first two terms in office Juan Perón (194655) escalated even further the politicization of the civil service. Scores of bureaucrats, as
well as university professors who had enjoyed a fairly independent status up until then,
were purged or forced to resign. Again, a military coup in 1955 claimed to put an end to
arbitrary political power and corruption. However, military-sponsored authoritarian
governments in many ways were even more inclined to abuses since they appointed to
the highest ranks of the public administration “technocrats” responsive only to them.
The military also closed Congress, and used censorship to mute any opposition outside
institutional settings.
Budget and accounting procedures did not fare any better. Argentina developed a
series of laws, starting with the Accounting Act of 1870 (Law 428), to establish clear
procedures regulating the budget process. However, it was not until 1956 that an
external oversight agency was created in the Tribunal de Cuentas de la Nacion (TCN).
Noticeably, the government that created it resulted from a military coup, albeit one that
was reacting to Perón’s heavy-handed rule. The TNC was entrusted with the authority to
review the legality of the executive’s legislative and administrative initiatives using an exante approach at the time typical to similar institutions in Europe. The TNC, therefore,
exercised preventive controls over executive decrees and pursued account judgments and
accountability proceedings all of which were reported to Congress. Yet this practice was
inconsistently applied during civilian governments and ignored under authoritarian ones.
In 1963, President Arturo Illia, who lacked majority support in the legislature, created the
Oficina Nacional de Presupuesto in order to rationalize the budget process but it could
not exercise any real control over governmental decisions. In point of fact, the budget
process was so distorted and out of control that no budget was signed into law by the
legislature from 1954 until 1990.
Oversight During the 1983-1999 Period
The 1983-99 period is marked by two distinct patterns in terms of oversight of executive
powers. Consistent with what we argued earlier, the administration of Raúl Alfonsín
(1983-89) faced a situation of divided government that allowed both Congress and the
courts to exercise a considerable role in restraining what were believed to be questionable
initiatives by the executive. Conversely, President Carlos Menem could count for most
of his two terms in office (1989-95 and 1995-99) with both a working majority in
Congress and a docile Supreme Court, which in turn allowed him to undercut most checks
and balances. As a result of this different inter-branch balance, as well as the two
presidents’ apparent different level respect for democratic institutions, Congressional
oversight was relatively important during Alfonsín’s period but its development
stagnated (or reversed course) during Menem’s two terms.
The inauguration of President Raul Alfonsín, of the Union Civica Radical (UCR)
in December 1983 put an end to the most violent military dictatorship in Argentine
contemporary history that lasted between 1976 and 1983. It also ushered in an era of
unprecedented political freedom in the country. The widespread human rights violations
25
and catastrophic economic policies inherited from the military regime created a new
political climate. Among the important thrusts of Alfonsín’s effort was to create public
confidence in the three branches of government by abiding to the basic principles of
democracy and having the judiciary prosecute human right violations. Alfonsín thought
that the respect of the rule of law, as well as the prerogatives assigned by the
Constitution to the legislature and the judiciary, had to be firmly established if true
democracy was to thrive.
This system did not always work to Alfonsín’s advantage. At the beginning of his
administration he sent to Congress a bill that would set the tone of his presidency. It
consisted of a new labor code aimed at enervating the labor unions that had traditionally
been the backbone of the Partido Justicialista (PJ). In 1984, the Radicals (Unión Civica
Radical; UCR) had an absolute majority in the Chamber of Deputies but not in the Senate
where a small group of small parties from the interior of the country held the balance.
The Radicals were unwilling to compromise with these small parties, thus derailing this
important piece of Alfonsín’s program. Especially after the Radicals lost their legislative
majority in 1987, the opposition in Congress further asserted its prerogatives, for
example by effectively using its veto powers on controversial government plans (Torre
1993). A case in point is the attempted privatization of two major state owned
enterprises (SOEs) in 1988; the national flag carrier Aerolíneas Argentinas and the
telephone company Ente Nacional de Telecomunicaciones (ENTel). As privatization of
national assets required Congressional approval, the Peronsists and small parties used
their combined majority in both houses to block the divestiture process as it ran counter
the interests of the public sector unions that they represented.
Alfonsín also met with considerable scrutiny from the courts. Upon being elected,
the Radical president persuaded the Supreme Court that had sat under the military to
resign. He then appointed a Court made up by five new justices whose members, in
general, enjoyed good standing within the legal profession (of these two were openly
Radical, one was Socialist, one Peronist, and the last one independent). The Supreme
Court under Alfonsín proved to act rather independently from the government wishes
(Verbitsky 1993: 21). Unlike its predecessors, it tried to establish jurisprudence where
individual rights took precedence over government exigencies. In 1987, much to the
president’s dismay, the Supreme Court refused to take over all the pending judgments
concerning military officers in order to avoid a lengthy and politically dangerous trial
process in federal courts, which had triggered an Army uprising (Acuña and Smulovitz
1995;Verbitsky, 1987). The Court reasoned that doing so was tantamount to
undercutting the jurisdiction of the federal courts. Such a refusal forced the administration
to have Congress pass a very unpopular Due Obedience Law later that year, which
voided most cases but tarnished the Radical’s commitment to prosecute human right
abuses. As Alfonsín became a lame duck president after the 1987 electoral debacle, the
Supreme Court showed an even greater attitude to strike down governmental decisions in
the last two years of his mandate (Helmke 1999). In response to this increasing defiance,
Alfonsín sent to Congress a bill that aimed at increasing the number of Supreme Court
justices up to seven and instituting the per saltum clause. The latter was a legal procedure
26
that could allow the Supreme Court to advocate to itself, under emergency circumstances,
cases that were under adjudication in lower courts. The Peronist leadership in Congress
showed some interest in the project and proposed to expand the number of justices to
nine, but as the May 1989 presidential elections came to a close, negotiations collapsed
and the unraveling economic situation made the bill no longer a priority (Verbitsky
1993:22). In addition to that, the members of the Supreme Court went to the press in an
attempt to mobilize public opinion against what it believed to be an overt attempt to end
their independence.
Partially in response to his lack of a legislative majority (which worsened after the
Peronist victory in the Congressional and gubernatorial elections of September 1987),
together with the majority’s opposition to the Radical administration’s economic policies,
Alfonsín wavered from his support of the democratic process and began to resort to
decretos de necesidad y urgencia (decrees of necessity and urgency, DNU). Previous
presidents had very rarely used this decree power (which was not specified in the
constitution)33 and so when Alfonsín opened this pandora’s door by issuing ten of them,34
he inadvertently legitimated the process for his successor.
Menem, apparently unburdened with appearances of democratic structures, acted
quickly to either eliminate or make ineffectual any type of oversight. He succeeded in
doing so primarily for three reasons. First, Menem could count either on a working
majority in Congress supported by small parties (1989-91) or an absolute majority
(1991-97). Second, through the “packing” of the Supreme Court with sympathetic
justices he assured the support of this key institution against challenges from lower
courts and the opposition in Congress to his policies. Third, he purged the oversight
institutions within the public administration from those officials who raised questions
about the legality of the Executive’s reforms.
Congress
In assessing Congressional oversight under the Menem administration we have to
distinguish different phases, as legislators’ behavior changed over time as the country’s
socioeconomic situation affected the balance of Executive-legislative in terms of bargaining
power. Legislators’ behavior also varied according to the importance of a governmentsponsored bill. Thus, both timing and saliency do matter in explaining how Congress
used, or failed to use, its oversight powers. Being an excellent strategist, Menem
Between 1853 and 1983 presidents had used about twenty DNUs, and then only under
circumstances of political and economic emergencies that could potentially endanger the
very existence of the nation (see Ferreira Rubio and Goretti 1997).
33
The most important of which created a new currency, the Austral, in mid-1986, which
was eventually ratified into law by the Congress a year later
34
27
skillfully used penalties when circumstances were favorable to him and rewards when his
bargaining power was doubtful.
What helped Menem further in curtailing congressional resistance was the
hyperinflation crisis that he inherited from Alfonsín. To prevent the country from
collapsing into total chaos, a lame duck Alfonsín (Menem won in May 1989 but was not
expected to take office until December) offered his successor to take office six months
ahead of schedule. Menem accepted but forced the Radicals to make major concessions.
Among such concessions was the Radical pledge to withdraw a sufficient number of their
113 members in the Chamber of Deputies when crucial legislation was introduced. In so
doing, the 97 Peronist representatives would become de facto the largest bloc in the
legislature and could pass the president’s emergency measures (Vidal 1995:53). The
Radicals also agreed not to oppose two laws that granted Menem broad emergency
powers that helped him create the cornerstone of his market reforms. The first one was
the State Reform Law, which gave the Executive the authority to privatize 32 state owned
enterprises immediately and put in charge of the trustees accountable only to the
president for a period of 180 days and renewable for another 180. The second piece of
legislation was the Economic Emergency Law. This law gave the president the authority
to change the budget, eliminate subsidies for industrial promotion, modify tax collection,
end any legal discrimination against foreign investors, alter the payment system of federal
bonds, and reorganize the social security agency. In short, through these laws the
legislature delegated to the presidency discretionary powers to legislate via decree on a
wide range of matters that, according to the Constitution, were solely ascribed to the
Congress for a set amount of time (Ferreira Rubio and Goretti 1997). Eventually,
Congress later expanded the extension to three years in the case of the State Reform Law.
In short, the combination of economic crisis and electoral losses led Radical legislators to
grant Menem sweeping powers.
Menem employed a second powerful tool to bypass Congress. Whenever the
emergency powers described above were not sufficient to expedite his reform agenda, the
president employed the DNUs at a staggering pace. As Ferreira Rubio and Goretti
(1997:34) clearly showed, Menem indiscriminately used DNUs “as a policy-making
device, whereby the executive presents legislative faits accomplis that circumvent the
principles of checks and balances, [replaced] the rule of law with presidential fiat.” The
DNUs greatly expanded presidential legislative authority in areas that the Constitution
had reserved to the Congress. Between 1989 and 1994, Menem issued a total of 336
DNUs. Among other issues, they covered crucial policy areas such as taxation (72),
salaries and wages (39), public debt (29), trade (10), transport (21), real estate
privatization (22), litigation against the federal government (5), industrial promotion (8),
civil and political rights (8), public agencies (32), and relations between federal and state
government (6) (Ferreira Rubio and Goretti 1997:47). By comparison, prior to Menem,
less than 30 DNUs had been issued. This points to the fact that since 1853 the Executive
had abided to the rule that DNUs were to be limited to situations when Congress was not
in session or the regular legislative process could not be used due to an impeding national
crisis that demanded a quick response. Regardless, DNUs by law had to be submitted for
28
legislative approval at later date otherwise they would decay. Menem regarded all these
requirements as mere formalities. Indeed, in 51 percent of the DNUs issued, the
government itself did not identify them as such but nonetheless they were used to repeal
laws or enforce laws without any clear legal ground or congressional delegation. Between
1989 and 1992 four out of ten DNUs were promulgated when the Congress was in
ordinary session and a good amount of the remaining ones when Congress was convened
in extraordinary session. As noted, under both circumstances the Executive should have
sent the legislation to Congress but Menem ignored the whole matter. The president’s
disregard for due process is also demonstrated by the fact that in 25 percent of the DNUs
issued in the 1989-92 period, the Executive failed to inform the Congress as mandated by
the Constitution (Verbitsky 1993:169). Yet, when Congress could not be bypassed and
the fate of a bill was very much in doubt, the Peronist leadership resorted to illegal means
to get things done. During the debate of the bill for the privatization of Gas del Estado in
1992, the Radicals tried to force Menem to bargain by depriving the necessary quorum for
the vote to take place in the Chamber of Deputies. At this point, some impostors
slipped inside the voting session and provided the necessary quorum that allowed the
Peronists to pass the bill notwithstanding the request of Radical legislators to annul the
session and start an investigation to look into the matter (Vidal 1995:122-128). In brief,
these events are clear examples of an Executive blatantly abusing its authority (Ferreira
Rubio and Goretti 1997:43).
Menem’s third means to overcome legislative opposition was the veto. Between
1989 and 1993, of the 625 bills passed by Congress the president vetoed 37 completely
and 41 partially. In the 1994-97 period, the president vetoed 87 bills of which Congress
overrun 14. During the same time span Menem used line-item vetoes on 38 occasions to
enforce legislation. What is noteworthy is that Menem, in the case of partial vetoes,
automatically promulgated the parts of the bill that pleased him, in clear violation of the
Constitution, which mandated the amended bill be sent back to the chamber of Congress
that had originated it (art. 72).
These three factors together partly explain why Congress, at least during
Menem’s first term (1989-95), put up little resistance to the president’s steam-rolling
legislative initiative. Yet, this explanation would be incomplete if we were not to take
into account other elements that played an important role in shaping congressional
behavior. As discussed, the hyperinflation crisis of mid-1989 and early 1990 had put the
Radicals on the defensive. Public opinion polls showed a strong support for decisive
government action to fight inflation and promote structural reforms (Mora y Araujo 1991,
Palermo and Novaro 1996). Menem skillfully exploited this popular malaise. Any time
the Radicals tried to mount some opposition, the president used an effective media
campaign charging them of stalling his effort to remedy the chaos that Alfonsín had left
behind. After a disastrous presidential and congressional election in May 1989, the
Radicals were simply in disarray and felt that their standing in public opinion polls was
too low and they could not afford another blow. Compounding the situation for the
Radicals was the fact that they were deeply divided. Governor Eduardo Angeloz, the
UCR presidential candidate in 1989, had campaigned on a market reform platform and
29
while he and his faction’s followers in Congress criticized Menem’s means, they
generally agreed on his long term goals to reform the Argentine economy (Palermo and
Novaro 1996). In point of fact, the Menem-Alfonsín pact of 1994 that would pave the
way for the Constitutional reform allowing Menem’s re-election was born out of the
Radical frustration to the situation just described. With the PJ having enjoyed an outright
legislative majority in both houses since late 1991, and considering that Menem was
willing to undercut Congress through executive powers blessed by a complacent Supreme
Court (see below), Alfonsín hoped that the new Constitution could restrain Executive
authority. Alfonsín’s reasoning brings about another crucial point that discouraged
opposition: Menem’s intimidation tactics (Vidal 1995:70). From the inception of his first
term Menem’s message was clear, “if Congress did not pass [his] bills, the executive
would implement them by [DNUs] and that if Congress introduced modifications into the
texts, the executive would veto them” (Ferreira Rubio and Goretti 1997). Executive’s
officials also made public that if congressional opposition to Menem’s plans was to
materialize even more dramatic initiatives were in the cards. In 1990, then Vice-President
Eduardo Duhalde invoked “all the power to Menem,” which many interpreted as a
possible institutional coup in the making (Clarín, 5 September 1990). People, in and out
of Congress, took these public pronouncements seriously. A month later as telephone
workers were on strike to stop the privatization of ENTel, an unnerved Menem publicly
stated that he wished he had the powers that Chilean dictator General Augusto Pinochet
had had for seventeen years (Verbitsky 1993:164). The threat never materialized but
convinced whatever stiff opposition existed in Congress to go along rather than getting in
the way.
However, Menem’s strategy did not consist of just institutional and verbal
intimidation. He adopted a softer approach when Congress could not be circumvented.
According to media reports this translated into bribes to benefit legislators from the
interior of the country when it came to vote the privatization of the oil and gas companies
(Verbitsky 1991; Vidal, 1995:219-224). Save for the media, such corruption charges were
never seriously investigated as, oddly enough, federal state prosecutors seemed
uninterested and therefore there is no hard evidence to prove them. However, Menem
made use of other legal means to win over congressional votes to his draconian
privatization and deregulation programs. As well documented by Gibson (1997), Menem
devised a brilliant divide-and-conquer strategy to co-opt congressional votes from
potential opposition coming from both his own party as well as small provincial parties
from the provinces of the interior. For most of his first term, large industrial urban areas
in the provinces of Buenos Aires, Cordoba, Mendoza, and Santa Fe suffered the brunt of
the government market reforms. However, Menem assured a steady amount of porkbarrel programs from poorer provinces of the interior as a way to retain their legislators’
support in Congress to offset an eventual defection from urban areas representatives.
Evidence of this strategy comes from the so-called “fiscal pacts” that the federal
government forged with the provinces (the Argentine equivalent of the states in the U.S.
federal system) in order to establish a revenue sharing mechanism. In the early 1990s, the
poorest provinces accounting for only 32 of the Argentine population earned nearly 56
30
percent of federal revenue transfers as opposed to the four provinces mentioned above
that despite having a population of 67 percent obtained only 44 percent of federal
revenues (Eaton 2000:15).
In sum while we cannot discount the importance of the crisis situation or
Menem’s strategic use of resources, these cases, combined with the examples we
discussed earlier where the legislature has had some success in reining in the executive,
corroborate our thesis that a divided government is more likely to exercise an oversight
control function as opposed to one where the presidential party controls the legislature.
Several interviews that we had with members of the Ministry of the Economy and Public
Works first under Minister Domingo Cavallo (1991-95) and then under Minister Roque
Fernández (1995-99) also support this view. These ministers complained that though
Congress was usually cooperative until 1994, it became more and more self assertive,
particularly after the Fall of 1997 when the Peronists lost their majority in the Chamber
of Deputies. To stylize the facts, it seems that during Menem’s first term Congress was
keenly aware of its weakness in dealing with the Executive. This was particularly true
during the height of the economic crisis (1989-91). Accordingly, legislators avoided
challenging Menem on matters dealing with market reforms that were top priority to his
administration and chose to hold their ground mostly on bread-and-butter issues where
there was greater room for compromise. Conversely, although we do not have hard data
on the number of DNUs and unsuccessful government-sponsored bill from 1995 to 1999,
our interviews indicate that after the PJ lost its congressional majority in 1997, Menem’s
ability to bypass Congress diminished appreciably.
Supreme Court
The Supreme Court’s inability or unwillingness to address executive abuse is a
final factor contributing to the weakness of legislative oversight. This inability or
unwillingness, in turn, has resulted from a) Menem’s anti-democratic strategies and b) the
weakness of the Congress in upholding democratic procedures.
Aware of Alfonsín’s problems in having the Supreme Court assent to
controversial presidential initiatives, Menem proceeded from the start to make sure that
the highest court in the nation would be squarely on his camp. In doing so, Menem
resumed Alfonsín’s original idea of enlarging the Supreme Court membership with the
excuse that more justices were necessary to deal with the logjam of pending cases. The
attack on the Court’s independence started a few weeks after Menem took office. The
strategy behind it was exposed by Minister of Justice Jorge Maiorano later on who
candidly stated that by electing Menem the people had voted for a new project to
transform Argentina. This meant that it was “absolutely necessary that there be a Court
that understand the [administration’s] policy and be addicted to the program that the
[Argentine] society had voted” (Ambito Financiero, 11 November 1992). Initially, to
convince some justices to step down voluntarily, the Menem administration offered
ambassadorships abroad to some (Carlos Fayt). For those close to the Radicals, it used
intimidation as in the case of Justice Augusto Belluscio against whom the Congress
started an impeachment procedure on the grounds of an alleged conflict of interests. As
31
was the case under Alfonsín, four out of the five members of the Court denounced
Menem’s attempt. On 5 April 1990, the Chamber of Deputies voted in favor of
increasing the number of justices to nine. The Radicals charged that, as it will later
happen in the privatization bill of Gas del Estado, impostors did cast the decisive votes
to have the necessary quorum (Verbitsky 1993:49). The Peronist president of the
Chamber overruled the Radicals’ request. One of the five justices, Jorge Bacqué, quit in
protest before the measure became effective, giving Menem the opportunity of
nominating not four but five new justices. . Three weeks later the Judiciary committee in
the Senate approved in only seven minutes the new justices proposed by the Executive.
The remaining original four instead, concerned with possibly losing their job given
Menem’s threat of impeachment procedures that could surely be approved in a Peronistdominated Senate, reversed their initial hostility and decided to cooperate by lending
crucial support for highly controversial government initiatives. In the end, the full Senate
put the final seal on the matter as representatives of small provincial parties joined the
Peronists by granting the two-third majority needed to ratify the candidates.
In the following paragraphs we will show how the packing of the Supreme Court
played a pivotal role on the one hand in giving the executive a legal justification for its
dubious reforms and, on the other, to thwart any challenges coming from the Congress,
lower courts, and civil society. Within this context, three decisions were key in helping
Menem overcoming any legal opposition to his authoritarian decision-making style.
The first of such decisions was the Peralta, Luis A. y otro c/ Estado Nacional
issued on December 27, 1990. This ruling is fundamental since it legitimized the
Executive’s authority to legislate without congressional approval. Late in December
1989, the government issued DNU 36/90 which sanctioned that all bank accounts
exceeding $610 were automatically turned into Bonos Externos, which at the time traded
30 percent below their par value. The reasoning behind this confiscation of assets was
that it would help stem a new bout of hyperinflation by curtailing the amount of liquidity
in the market. Later that month, the Supreme Court received about 30 cases challenging
the constitutionality of such a measure, commonly referred as Bonex Plan, since it had
been enforced without Congressional approval which had jurisdiction on this type of
fiscal measures. The Supreme Court instead ruled in favor of the government decree. It
asserted that in situations when the very existence of the nation is at stake restricting
property rights, protected by article 17 of the Constitution, is not a violation of the
Constitution itself as long as an emergency situation persists and the decree does not
favor specific individuals. The importance of this point is that first individual rights are
subject to government limitations under circumstances decided by the Executive. The
second point is directly related to the first. That is, since the Congress by passing the
Economic Emergency Law had established a situation of crisis, the Executive could
legislate through DNUs and restrict constitutional rights as long as the causes that created
the crisis continues. Of course, the Court implicitly left to the Executive the
determination of whether or not the country is an emergency situation. Indeed, at least
technically, Menem ruled Argentina under emergency powers until he left office in
December 1999.
32
There is a third, and equally important point in the Supreme Court ruling. The
Court stated that in situations of “high social risk,” which require the application of
“swift measures whose efficacy are not conceivable through other means” the president
can issue DNUs as he see fit. The only condition to do so is that the Executive informs
the Congress and the Congress itself does not express its disapproval. In other words, in
so doing the Supreme Court established a new doctrine that could be labeled of “tacit
approval.” The ruling was tantamount to sanctioning the transfer of legislative powers
from the Congress to the Executive as it added:
Immersed in today’s reality, not only Argentina’s but the universal reality,
we have to admit that some kinds of problems and the solutions that they
demand can hardly be dealt with or solved efficiently and expeditiously by
[a] multi-personal [legislative] body. Confrontation of interests that
delay…the process of making decisions; special interest pressure on those
decisions, which is also the norm since the [legislature] represents the
provinces and the people; the lack of homogeneity [of the legislature] as
the individuals and groups that it represents are moved most of the time
by divergent interests—make it necessary that the President, whose role
demands the maintenance of peace and social order, which [is] seriously
threatened in this case, has to make the decision to select the measures that
are unavoidable and this reality urgently demands with no delay (Cons.
[paragraph] 29).
In justifying its ruling, the Supreme Court went further. It stated that although
the Constitution established the division of power among the three branches of
government, this should not be interpreted in a way to allow the “dismemberment of the
State so that each of its parts acts in isolation to the detriment of national unity.” What is
ironic in this interpretation is that, if we stretch it to the limit, under emergency situations
and in the name of pursuing the national interest, even the Supreme Court has to
subordinate itself to the Executive.
The transfer of Congress law-making powers to the Executive was reiterated in
1994 in the Cocchia bench-mark case. In writing the majority decision, Justice Boggiano
stated:
…there exists a modern and strong doctrine that admits, within certain
reasonable limits, the delegation of legislative powers as a claim for good
government in the modern State. “Delegation of legislative powers from
the Assembly to the government has become a universal manifestation of
the technological age,” as argued by Lowenstein, without distinguishing
between parliamentary and presidential systems, and indeed [ Lowenstein]
pointed out the new universal character of the trend [Fallos, 1994,
Cons.(paragraph) 24, reported in La Ley, 1994-B, 633].
33
Whereas the Peralta and Cocchia cases gave legal justifications to the executive in its
quest to advocate to itself the role of the legislature, the case Fontela, Moisés Eduardo c/
Estado Nacional of September 1990 was significant in that it made it clear from the start
that individual legislators could not use the court system as an alternative to Congress to
make the Menem administration accountable for its policies. In July 1990, using the same
arguments expressed earlier by the Inspector General of Justice Alberto González Arzac
with regard to legal and administrative irregularities in the upcoming privatization of the
national flag carrier Aerolíneas Argentinas, Congressman Fontela filed before federal judge
Oscar Garzón Funes an injunction to stop the sale until an investigation could ascertain
the legality of the transaction. Garzón Funes, who was known for being
quite an independent-minded judge, accepted the case and ordered Minister of Public
Works Roberto Dromi, who was in charge of the privatization program, to restructure
Aerolíneas according to law 19.550. In response, Dromi pleaded for the Supreme Court
to take up the case. The Court accepted the minister’s request less than an hour after
Grazón Funes had issued his order. This move was in open violation of art. 257 of the
Civil and Commercial Procedural Code which allowed appeals to be filed only to the
tribunal that had issued the sentence regarding the case. Using an obscure legal procedure
called per saltum, the Supreme Court claimed the case for itself due to the “institutional
gravity” of the matter without actually specifying what was so critical about selling an
SOE from a constitutional standpoint. However, Menem needed this ruling badly.
Aerolíneas was his first privatization. Had it failed, the whole privatization process
could have collapsed, putting into question his administration ability to overcome the
opposition that had derailed Alfonsín earlier attempts in the late 1980s. It took only a
few minutes for the Supreme Court to rule void Garzón Funes’ injunction, thus paving
the way for the airline transfer a few days later. The Court justified the use of the per
saltum citing that the U.S. Supreme Court had ruled on cases without previous sentences.
Yet, in his dissenting opinion, Justice Fayt pointed out that the Evart Act of 1891, which
had established the U.S. Supreme Court right to advocate cases in lower courts, was not
applicable since the Argentine Law 4055, inspired by the U.S. jurisprudence, did not
contain any per saltum clause. Nonetheless, Menem obtained what he wanted and the
message behind the sentence was clear: the Supreme Court was squarely behind the
president no matter what and could not be counted on to challenge his initiatives, no
matter how unconstitutional they may be (Verbistky 1993:140).
Oversight Institutions
The dominant executive (over both the legislature and the judiciary), the continual
downfall of democracy, and the crisis situations explain much of the lack of oversight in
the Argentine system. We argued earlier, however, that the legislature has had some
successes and that the current system, in which corruption has become highly publicized
and presidents lack unqualified legislative support, is ripe for change. As a result, the
government has formed several institutions to perform these tasks. Some are beginning to
34
have an effect, while others are still burdened by executive dominance. The following
discussion shows how once these institutions began to investigate wrongdoing, Menem
undercut their authority (generally through illegal firings).
In analyzing administrative oversight institutions, we must distinguish two broad
categories. The first one consists of agencies and departments created under special
clauses that allow them some degree of independence, at least in theory, from executive
interference. The second one is represented by departments directly under executive
control and therefore unable to shelter themselves from presidential manipulations.
Within three years from his election, regardless of the power of these institutions, Menem
systematically proceeded in either eliminating them or neutralizing them by putting at
their helm loyal supporters regardless of their credentials.
Tribunal de Cuentas
Let us now consider the former category. The Tribunal de Cuentas, as noted
earlier, was established under the authoritarian government of President Pedro Aramburu
(1955-58) as a means to address widespread administrative corruption during Perón’s
first two terms (1946-55). Modeled after its French and Spanish equivalents, the
Tribunal had substantial powers to exercise ex-ante investigations over government
spending. The tribunal could also veto spending allocations and had the capacity to
initiate criminal procedures of acts perpetrated against the federal treasury. A board of
four federal judges with life tenure specializing in fiscal and accounting matters managed
the institution. In turn, the board members were nominated by the Executive and
appointed after being approved by the Senate. Yet, despite having wide powers, the
performance of the Tribunal was very uneven during the course of its history. It would
denounce excesses but rarely prosecute prominent offenders. But, when it became too
much of an irritant for the president, Menem illegally fired the members of the tribunal,
replacing them with his supporters (led by his own brother).
The relations between the Tribunal and Menem became rocky shortly after the
president took office not so much because the Tribunal was actively going after suspects,
but rather because it dared to expose financial improprieties committed by administration
officials. Here are some examples. In March 1990, Decree 477 ordered the Ministry of
Health and Social Action to purchase 1.3 million aprons for school children at $5.90 per
unit when in the market the average price was $4.30. Radical Congressman Antonio
Berhongaray believed the tender to be suspicious and alerted the Tribunal. Not only was
the base price inflated but, as later discovered by the press, no company in the country
was capable of producing that large amount of aprons in the specified time. What was
also suspicious was that although the Economic Emergency Law had set strict limits on
public contracts, Interior Minister Eduardo Bauzá, Menem’s most trusted adviser,
created a loophole to allow the public tender to take place because of its “emergency”
nature. Eventually, the company Herrera Hermanos S.A. that had never made an apron
nor did it have any real capital, won the contract. Its only qualification seemed to have
been the political connection of its owner, a Buenos Aires Peronist politician by the name
of Juan Ricardo Mussa, who had been spotted in the group of dignitaries at the time of
35
Menem’s inauguration ceremony. Mussa’s other notable distinction was a pending trial
for fraud. As the scandal evolved, high ranking administration officials menaced the
Radicals to reopen cases of alleged corruption under President Alfonsín (Verbitsky
1993:91). In the meantime, and against the terms of the contract, the Ministry of Health
and Social Action paid in advance $3 million without having received a single apron.
Upon discovering these irregularities, the Tribunal started a criminal investigation for
fraud. Shortly thereafter, as the media began to publicize the scandal, Menem signed a
decree in which rescinded the contract with Herera Hermanos S.A. for lack of compliance.
There were other four instances in which the Tribunal discovered flagrant financial
irregularities in 1990, which it denounced and due to the media uproar prevented from
materializing. One case involved the privatization of the reading of meters, billing,and
collection of fees for three large SOEs in public utilities: Gas del Estado, Segba, and Obras
Sanitarias. The administration issued a DNUs in this regard that contemplated a bidding
process for the contract award. However, the Ministry of the Economy later issued
another decree that replaced the bidding process with a direct negotiation benefiting a
consortium that had direct connections with some of Menem’s old friends in his native
province of La Rioja. The Tribunal found the 15 percent fee that the consortium charged
the government for the billing procedures of the three SOEs as exaggerated and nullified
the contract.
A second case dealt with the telegraph and mail SOE Encotel. The company
Villalonga-Furlong had asked Encotel $10.7 for having rescinded a five-year contract. In
March 1990, the Ministry of Public Works and Services and the Ministry of the
Economy instead decided to pay Villalonga-Furlong $25.6 million. The Tribunal noted
that although Encotel had failed to comply with the contract for three years the
compensation of $25.6 million amounted to 138 percent more had the SOE complied with
the original terms (Verbistky 1993:92). The Tribunal also added that the indexes that the
two ministries used for the compensation did not respect those currently used at the time.
A third instance occurred with the Consortium Puente Posadas-Encarnación,
which in November 1987 had requested a re-negotiation of his contract with the Highway
Authority and the Ministry of Public Works and Services. At the time, the Radical
administration refused the request but by March 1990 the Menem administration
accepted it and agreed to pay $20 million in back fees that the Tribunal found
unacceptable due to legal and financial improprieties involved in the re-negotiation.
As it can be seen from the timing, all these events climaxed by the end of March
1990. Shortly thereafter, Vice-President Duhalde signed a decree in which he dismissed
the board of the Tribunal in violation of Law 20.677 that required the Senate to start
impeachment proceeding for the removal of any of its members. As noted above, the five
were replaced with people close to the president, including his brother Eduardo Menem.
Not surprisingly, after 1990 the Tribunal ceased to create problems to the administration.
Fiscalía Nacional de Investigaciones
The Fiscalía Nacional de Investigaciones was an institution in charge of
investigating public officials suspected of having perpetrated crimes against the federal
36
patrimony. The federal judge in charge of the Fiscalía had substantial powers to
investigate and could remit his findings to a federal prosecutor for criminal or civil
proceedings. At the time Menem took office Ricardo Molinas was at the helm of the
institution. Molinas had a solid reputation as a human rights lawyer and belonged to a
small centrist party. Considered by some as being a maverick, he was appointed to his
post, with the rank of federal judge, by President Alfonsín. Molinas soon acquired quite
a reputation for being very active in pursuing offenders as he investigated three times as
many cases as his predecessor. Molinas began to investigate several cases, ranging from
subsidies granted to companies in violation of the Economic Emergency Law, to
irregularities in the privatization of the federal highways and ENTel. In early 1991,
Menem removed Molinas through a decree despite the fact that, as a judge, the latter had
to first go through an impeachment process in the Senate. Yet, nobody protested but the
press. The usually pro-Menem newspaper Ambito Financiero underscored the gravity of
Molinas firing as follows:
…Molinas continues to represent public honesty and the possibility of
control over the government that [allows a scrutiny] alien from the most
despicable interests. [Were this situation to continue], the country will
enter a dark tunnel, with a [co-opted] Supreme Court, a Justice
Department depending on the government, where the only means left to
confront the praetorian power of the administration is the free press…
(Ambito Financiero,12 July 1990).
Molinas appealed the decision and a federal judge, after reviewing the case, ordered his reinstatement. Menem’s ignored the judge’s injunction and appealed himself to the
Supreme Court. The highest court upheld Molinas’ removal in a split decision. The
majority opinion stated that Molinas did not enjoy immunity from administrative
removal and ruled as unconstitutional Law 21.383 which gave to the head of the Fiscalía
Nacional de Investigaciones the rank of federal judge, which would have required Molinas
impeachment by the Senate. Menem needed a legal justification to get rid of Molinas and
the Supreme Court conveniently invented one.
Sindicatura General de Empresas P blicas and Inspector General de Justicia
Let us now turn to those institutions that depended directly from the executive branch.
The most important one in 1989 was the Sindicatura General de Empresas P blicas
(Sigep). This was an institution in charge of auditing the financial and legal procedures of
SOEs. It had been created by the 1976-83 military regime and had, in theory, substantial
powers. It could use a variety of means ranging from simple observations to formal
warnings and up to the suspension of any financial and administrative SOE’s decision.
Suspensions had to be ratified by the president. Menem appointed to head the Sigep
Mario Truffat, who had managed his presidential campaign. In the two years that Truffat
was in charge of the Sigep, he drafted 600 objections to ongoing Executive’s initiatives.
This was more than any of his predecessors put together had compiled. Truffat’s
37
activism was due to the many improprieties in the way administration officials were
managing the privatization process as well as other issues affecting SOEs. His
preoccupation was that the Executive would at least keep a façade of legality while
pursuing its goals (Verbitsky 1993:109). Truffat’s collision course with several of
Menem’s ministers and close advisers started in the Fall of 1989 when he suspended the
sale of the Galeria Pacifico as its contract was full of irregularities. Months later, Truffat
came into a conflict with Minister of Public Works and Services Dromi, in charge of
privatization, Inetriro Minister Bauzá, and Speaker of the House Jose Luis Manzano over
the sale of Petroquímica Bahía Blanca to a consortium led by Techint. A rival consortium
claimed foul play in the way the privatization was carried out and informed the Sigep.
After an investigation, Truffat found the charges to be well founded and raised strong
doubts about the soundness of the transaction but stopped short from annulling it.
In another instance, the Sigep forced Enrique Pescarmona, an Argentine
businessman, to leave the consortium that won the Aerolíneas privatization for lack of
financial credentials. Truffat also disallowed a plan by the Spanish carrier Iberia, which
was the majority shareholder in the Aerolíneas winning consortium from selling some of
Aerolíneas planes in order to pay for its acquisition. Yet, despite this and other
irregularities involved in the Aerolíneas privatization Sigep ultimately gave the green light.
The Sigep also objected to the way ENTel’s trustee María Julia Alsogaray had
managed the company’s debt , which had doubled under her leadership prior to its
privatization. The agency also momentarily suspended the inflated payments to ENTel’s
suppliers that Alsogaray had approved as well as her decision to award contracts for
phone books without a public tender.
The last incident that made Truffat’s position untenable came when the
engineering company Impsa demanded the government to pay for $70 million worth of
public contracts. Menem and his cabinet actually decided to award Impsa $200 million
and told the Sigep to justify the $130 million in excess. Reluctantly, Truffat complied but
Menem and the Ministry of the Economy had come to the conclusion that the Sigep
constituted an “obstacle” to the privatization process. Using another decree, in August
1991 the president downgraded the Sigep from Secretería de Estado to Dirección
Nacional. This meant in practice that the Sigep’s ability to suspend dubious contracts
was terminated and its functions were relegated to non-binding admonitions. Before these
events took place, Truffat had already resigned and his successor and former assistant
Alberto Abad, made a point of not only going along but also getting along with the
president (interviw with Abad, BA April 1993).
The Inspector General de Justicia was yet another institution entrusted with the
authority of making sure that new rules and requirements affecting the public
administration conform to the existing legislation. Upon becoming president, Menem
appointed to this office a long time friend and supporter, Alberto González Arzac.
However, the new General Inspector, much to the displeasure of the president, took his
role seriously. In June 1990, González Arzac warned the administration that Aerolíneas
Argentinas could not be privatized as planned. In fact, the government intended to
become a minority shareholder with veto rights and change the corporate structure of
38
Aerolíneas. Yet, Arzac contended that this scheme was legally unfeasible since the
existing commercial codes did not contemplate such a company arrangement. Arzac’s
opinion was used, as noted earlier, by Congressman Fontela in his attempt to stop the
privatization process of Aerolíneas. In September of the same year, the Inspector
General warned the Ministry of Justice that ENTel had not fulfilled some of its obligation
prior to its transfer to private operators. Days later, Arzac warned María Julia Alsogaray
that the person whom the president had chosen to manage the ENTel divestiture could
not be on the board of one of the firms that was going to menage the proceeds of the
telephone privatization. Although none of Arzac’s legal opinions were binding, they had
embarrassed the administration enough to prompt Menem to dismiss him and appoint in
his place a more reliable official who never caused troubles thereafter.
Post-1993 Reforms
Upon removing/neutralizing most oversight institutions, Menem pushed through
Congress a new, comprehensive law, which reformed both legislative and administrative
forms of accountability procedures. This was done in part to please multilateral lending
agencies, like the World Bank, that had grown increasingly worried with numerous
allegations of corruption practices involving government officials managing the
administration’s market reform agenda in the early 1990s.
On October 30, 1992, Congress approved Law 24.156 (Ley de Adminsitración
Financiera y de los Sistemas de Control del Sector Público Nacional). The law became
effective only later in 1993. It streamlined auditing procedures by creating two new
separate agencies: the Auditoria General de la Nación (AGN) under the control of
Congress, and the Sindicatura General de la Nación (SIGEN), under the control of the
Executive. Ithe AGN depends upon Congress and its role is to be the external auditing
institution for the public sector. Financially, Congress sets the AGN budget. Its structure
and internal regulations are established by the Joint Parliamentary Auditing Committee
and the Joint Budget and Public Finance Committee in Congress. The AGN has a board
of seven members elected for an 8-year term. The House and the Senate appoint three
each. The appointments mirror the composition of the congressional membership, with
the largest party nominating the largest number of board members. This means that in
1993 the PJ, which controlled both houses of Congress, had four members out of seven
on the board. The president of the AGN is appointed jointly by the President of the
Republic, and the Speakers of the House and the Senate. As a result of the Pacto de
Olivos, in which Menem and Alfonsín agreed to introduce amendments to the 1853
Constitution, the AGN presidency goes to the largest minority party in Congress. This
meant that between 1994 and 1999 Enrique Paixao, a Radical, was in charge of the
institution and staffed the agency with people coming primarily from his party. The
AGN board executes the action plan previously approved by the two joint congressional
committees but has discretion in its internal hiring, consulting contracts, and internal
organization procedures.
On paper, the AGN is a powerful institution. It has jurisdiction over budgetary,
39
economic, financial, legal and patrimonial management of the public administration as well
as the Federal District of Buenos Aires. Moreover, it audits the fulfillment of
privatization contracts as well as private companies and foundations that receive public
funds. Section 118 of Law 24.156 specifies the AGN duties that are widely conceived.
Section 119 states the power to perform such duties. The AGN can solicit information
from all the public administration offices and promotes investigations whenever it sees fit
and then transmits the results to the joint congressional committees mentioned above.
The AGN establishes the criteria for control and auditing, submits a report to the joint
congressional committees by May 1 st and may receive from Congress auditing powers for
entities that are not state-owned and are governed by private law.
There are several factors that potentially undercut the AGN’s broad powers.
First, the AGN’s board makes decisions by a simple majority. This means that if the
president’s party holds a majority within the board, as it happened between 1994 and
1999, it can effectively stop any initiative that can potentially damage the Executive,
which is exactly what happened during that period. According to our interviews with
senior AGN managers belonging to the UCR, those inquiries submitted to the board that
could embarrass the Menem administration were overruled by the PJ board members. A
second limitation comes from the fact that the congressional committees overseeing the
AGN draws the agency action plan, and can make changes to the AGN’s reports. If the
presidential party holds a majority in those committees, these powers can be used
effectively to thwart the AGN ability to fulfill its duties. Third, the AGN auditing
mechanisms are patterned after Canadian and Puerto Rican models where oversight is
done according to a post-facto approach as opposed to the pre-reform ex-ante method
used by the Tribunal de Cuentas (see above). This seriously limits the AGN’s ability to
stop government abuses in the making. Fourth, in the last couple of years of his second
term President Menem, citing the imperative of cutting government’s fiscal deficit,
unilaterally reduced the AGN’s budget although that authority is within the realm of
Congress. The Peronist-dominated committees overseeing the AGN did not protest the
presidential initiative in this regard. Since January 2000, the PJ has taken control of the
AGN.
The SIGEN is the auditing institution from within the public administration. As
the AGN, on paper it has large powers. It oversees the presidency, all government
departments and secretariats depending from the presidency, about 105 public entities
including 36 universities, and all remaining SOEs. Our impression from interviewing
SIGEN’s management in 1996 was that although on paper the agency seemed to perform
diligently, it only went after small offenders. This is because the presidency selects the
director and management of SIGEN, which in turn finds it hard to act independently. For
instance, in 1996 we interviewed the director of the SIGEN, Luis Augustini a public
accountant by training and a long time Peronist with close ties to Menem, who gave us a
glowing picture of how effective the agency was performing. At one point during the
interview we asked Mr. Augustini what happened in those instances when the SIGEN
discovered flagrant cases of misuses of public funds and procedures. His reply was, “I
immediately call Carlitos!” We were somehow naively confused and asked, “Who is
40
Carlitos?” to which Augusting replied, “But of course, Carlitos Menem, he is a dear friend
of mine!” Obviously, it is hard to believe that, given these close personal ties,
the SIGEN could effectively pursue its tasks when the executive branch, or people/public
entities close to the president were at fault.
Conclusion
While it is important not to overlook the important number of examples where the
Argentine legislature has effectively checked the often-abusive president, unlike the
United States, Argentina has not developed an effective system of checks and balances.
The unparallel tracks of these two countries, we argue, is the result of the difference in the
two legislatures’ ability and willingness to investigate and counter executive action.
In the United States, widely publicized scandals combined with the independence
of the legislators helped create a motivation for reform. Polsby (1968), Mayhew (1974),
and Fiorina (1977, 1989) all argue that electoral incentives pushed U.S. members of
Congress to reform their institutions in ways that improved their electoral fortunes. A
part of their efforts for more than a century have been aimed at improving their capacity
to fulfill the oversight role that Madison desired them. The fruits of this labor have been
the development of expertise among the legislators, as well as a number of institutional
changes that have helped the United States overcome what was once egregious and what
at one time seemed an almost hopeless level of political corruption and a lack of
accountability in government accounts. The secret (Australian) ballot and direct primaries
had great impacts in limiting electoral fraud. Civil service reform was the beginning of the
end of the rotten spoils system, and the professionalization of the bureaucracy and the
founding of professional accounting and investigatory agencies, such as the Government
Accounting Office, has made it possible to monitor and verify government accounts and
the workings of government services. These institutions were not all formed at one time,
contrariwise the US Congress has continually passed new legislation that has aided in
their (or the public’s) efforts to expose and punish wrongdoing.
The Argentine legislators, alternatively, have been hampered by an electoral
system that has worked against the legislators’ independence from party leaders and the
president, short terms in office, and numerous interruptions of the democratic process.
As a result, the Argentine legislators have not yet developed expertise, effective oversight
institutions, or professional practices.
Two changes in Argentina foreshadow improvement. First, a free press has
helped create a public disgust with executive abuses. While Menem is still admired for his
economic achievements, his abuse of power is widely known and resented. Second,
Argentina has now completed its fourth presidential election, three of which have resulted
in a change of power among parties. The military has not threatened the democratic
process since the mid-1980s. This hopeful change has allowed Argentina’s democratic
institutions, including the legislature, to develop professional staffs and practices which
they had always lacked. As a result, the executive is no longer the only branch of
government that can claim an exclusive capability to write or criticize legislation. In fact,
41
the new Argentine president, Fernando de la Rua, has pledged to work with Congress and
has taken some initial steps to investigate corruption cases
Though these changes are favorable, Argentine legislators still lack the reelection
incentives and the independence from their leaders that have helped U.S. legislators to
work as effective counterweights to the executive. Several countries in Latin America
have moved to improve the ties between voters and legislators, and our analysis suggests
that such a change, assuming that this also helps to improve reelection rates, could further
the professionalization of the legislature which is necessary for effective oversight.
42
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