Summary – Moving Brazil Forward

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Prologue: I wrote this piece as part of a presentation I made to visiting students from Holland. It assembles my thoughts on how current events pertaining to corruption and the rule of law might transform Brazil. I amply plagiarize my previous work. GM

A Conflagration of Corruption in Brazil – Will it Lead to Transformation?

Over the past five years or so, Brazil has witnessed a transformation in the rule of law quite unlike anywhere else. Much of this revolution seems to have started with a legislative vote-buying scheme that Carlos Pereira and I wrote about in our recently published article, “A Great Leap Forward for Democracy and the Rule of Law? Brazil’s Mensalão Trial”.[1]

Orchestrated by the Worker’s Party (PT) of President Luiz Inácio Lula da Silva, the Mensalão was a scheme whereby leaders created fake government advertising contracts and laundered public money through state-owned banks, using the cash to then pay legislators for their votes in congress. This scandal has led to the successful prosecution of 28 individuals, including the President’s Chief of Staff, and has generated a flurry of laws and judicial decisions that are currently transforming a political landscape of impunity into… well, a political reality that has yet to reveal a stable equilibrium. A few of these transformative initiatives include:

  1. A freedom of information law (12.527) that has begun to lay bare bureaucratic cultures of secrecy, inefficiency, incompetence and – all too frequently – corruption.
  2. Laws on Criminal Organizations (12.850) and Anticorruption (12.846) that include generous reductions in penalties in return for inculpating evidence on corruptors and corruptees (plea bargaining measures). This law has led to exponential finger-pointing among corrupt politicians and business operators keen to reduce their penalties.
  3. A decision by the Supreme Court to allow for the imprisonment of suspects after a guilty verdict has been handed-down by a bench of judges subsequent to a first appeal. This decision reverses previous precedent, wherein imprisonment occurred (incredibly rarely) only after all appeals had been exhausted. Opportunities to appeal guilty verdicts in Brazil are frustratingly numerous and go all the way to the Supreme Court, meaning that politicians have tended to ‘run out the clock’ (prescription – statute of limitations) before their appeals could be heard. So this precedent, referred to as Habeas Corpus 126-292, is a dramatic departure for a criminal justice system that has historically offered impunity to those able to pay the legal fees.[2]

Only a year after the Mensalão criminal trial had wrapped up, the Petrolão exploded into the news, the result of anomalies found in big-data analyses of contracts in the state oil company, Petrobras. The Petrolão, which includes the famous Lava Jato (Car Wash) investigation, has only added fuel to the fire. As a scandal, it is not dissimilar to the Mensalão: legislative allies of the ruling coalition received kickbacks from contracts and acquisitions undertaken by Petrobras and its suppliers – in return for support in congress.

The news media have done a good job of covering the crimes of both the Petrolão and Mensalão, which involve complicated webs of political criminality. The news media has been less successful, however, at pointing to the root causes of these atrocious scandals and corresponding remedial measures.

TRANSFORMATION HINGES ON NEWS MEDIA COVERAGE

Here, I argue that whether this conflagration of political scandals will lead to real, lasting, and systemic transformation hinges largely on the prospective accountability role of the news media. While the media may provide skilled portraits of what happened and who is to blame (retrospective accountability), they have been weaker on what is the source of these constant scandals and what to do about it (prospective accountability).

It is natural for us to diminish the importance of the news media. After all, news is almost wholly about government, with a little business, sport, and sensationalism added to the mix. The news media provides negligible coverage of itself and we, in turn, therefore tend to give little consideration to its role in creating our political and social reality. But the importance of the news media cannot be overstated. Editors and owners of the press pick and choose what and who become news and, as the literature on agenda-setting demonstrates, what we think is important is highly correlated with how much salience a given subject receives in the news.[3] In these functions, as a gatekeeper and agenda-setter, the news media is largely failing Brazil.

As I suggest in the next few paragraphs, there are solid candidate explanations for why the news media have failed to cover systemic sources of corruption scandals and corresponding prospective solutions, let alone demonstrate self-reflection.

On a first level, the media is badly regulated in Brazil.[4] Rules are comparatively lenient regarding ownership – both horizontal and vertical. Media law is anachronistic in Brazil: the broadcasting law is from 1962, and the constitution provides that congress establish who obtains broadcasting and radio licenses. This attribution, which in modern democracies is delegated to a regulatory body, gives Congress significant power over the news media, and generates a quid pro quo relationship with media owners (many of whom are politicians) that is unhealthy for democracy.

On a second level, the news media have little interest in seeing the electoral system change, and the Mensalão and Petrolão have clearly demonstrated that corruption is rooted in political finance and the party system. In other words, the problem is Brazil’s electoral system. It is a system that generates an unwieldy number of parties and corresponding vicissitudes. As I wrote in a blog post earlier this year:

How ridiculous is Brazil’s Congressional party landscape?

Take Michael Gallagher’s country-by-country summary of party system size (effective number of parties) around the world over the last decades. Without getting into the mathematics of calculating effective number of parties, Brazil tops the globe with 14 effective parties at the electoral level (Eff Nv 2014). In a distant second place is Indonesia, with nearly 9 effective parties – more than one-third fewer than Brazil. No country in Europe exceeds 8, and most are closer to 3-4.

In short, Brazil is not an outlier, it’s a freak.

In order to hold coalitions of upwards of 20 parties together, presidents, governors and mayors have been reduced to condoning corruption – effectively paying for their votes through illegal means, and entrusting upwards of half a dozen different parties with control over different parts of government.

The news media are the beneficiaries of this trough of political parties, as advertising dollars roll in during electoral periods. Meanwhile, mayors, governors and presidents spend recklessly on ‘public advertising’ in the news media to try to shore up favorable coverage and promote their governments. Moreover, a fragmented Congress facilitates the purchase of legislator loyalties, precluding key reforms… such as media reform.

Why ruin a good thing? Although there are very large citizen movements attempting to reform the electoral system, they receive barely any coverage. Nor does the topic of electoral reform itself.

To its credit, the media is generously covering many of the rule-of-law reforms that have been approved or are being considered.  But then again, I have noticed that most of this coverage deals with ex post rather than ex ante accountability reforms – they deal with inculpating or punishing politicians who have committed crimes – as opposed to looking into changes that might prevent crimes in the first place. Content-analyses are needed to better understand the disparity of coverage between prospective and retrospective forms of accountability.

BRAZIL’S PROSECUTOCRACY

Lavish media coverage of corruption scandals should not be confused with dramatic citizen movements to clamp down on corruption. Instead, this is a struggle between politicians and an emergent legal technocracy, or better put, a “prosecutocracy”.

Advances of the rule of law typically adhere to a pattern.

A crime leads to popular calls for reform, which gains coverage by the press. Principled legislators and the parliamentary opposition then demand reform. Finally, new laws are enacted and applied, and the crime finds resolution in both curative and preventive measures. In the US, this sort of process gave rise to a professional civil service after the assassination of President James Garfield, critical amendments to the US freedom of information law in the wake of Watergate, and a host of other reforms, from environmental regulation to consumer protection policies.

Yet today’s Brazil has few such story lines.

Discoveries of grand corruption in Petrobras set off a showdown among different parts of the state, with no systemic reforms in sight. Brazil’s prosecutocracy – crusading judges, prosecutors, and police – inspired popular mobilization and press support for punishment, rather than reform. The opposition has remained silent – as its representatives have also been criminally implicated – and no political reforms of note have moved forward. In effect, the most salient result is inter-branch hostility, with increasing showdowns between Congress on the one hand, and the Federal Police, the Public Prosecetor and the Judiciary, on the other.

THREE OBSTACLES TO REFORM

Brazil’s political elite, legal elite, and media elite suffer from irreconcilable ‘character problems’. These may prevent Brazil from using the current crisis to vitalize greater institutional resilience and strength.

First, the political elite is compromised ethically and tend to be more private than public regarding. The public interest – an imperative of solid democracies – seems to get lost in particularism. No visible group of legislators has emerged – at least they are not being covered by the media – to lead a drive for reform. As I’ve written before, Brazil suffers from political recruitment dilemmas. Good people need take heart and go into politics.

Second, Brazil’s legal elite believe themselves above the rule of law.

Indeed, FGV transparency audits as well as a study by Article 19, an NGO, show that the Public Prosecutor and the Judiciary are among the worst adherents to basic transparency obligations, as established in 2011 by Brazil’s new access to information law, 12.527. It is also clear that the judiciary does not comply with constitutional ceilings for remuneration. As a result, Brazil’s is one of the most expensive and inefficient judiciaries in the world (observe – salaries as multiples of per capita income). In effect, the behavior of these entities seems to demonstrate a belief that they are ‘above the rule of law’.

Third, as I write above, the news media is ineffective at giving voice to advocates or real reform. Case-in-point, when we released a book[5] detailing how the Public Prosecutor had scored lower than any other jurisdiction or power we have analyzed in FGV’s Public Transparency Program, I sent it to a journalist friend at one of the major Brazilian newspapers. He was delighted with the data we had collected and promptly penned an article with infographics, which he shared with me before sending it off to his editor. What happened? You guessed it: nothing. The article never came out. Indeed, no article on this excellent analysis came out. The news media fears prosecutor scrutiny and depends on the Public Prosecutor for leaks and information. Editors thus decided to privilege private interests over those of the public. This sort of decision is representative of a news media that could be doing much, much more to increase the quality of democracy in Brazil.

This leaves Brazil in a quandary.

Who moves reform forward? As I have suggested, Brazil’s provisions for popular petitions appear to be perhaps the best solution. As it stands, Brazil’s prosecutocracy is undoubtedly doing good by purging the system, and media coverage of this purge is necessary. But perpetually purging an unhealthy system is insufficient for positive transformation. Reform is required, and the media must step up to let advocates of reform be heard.

[1] Gregory Michener e Carlos Pereira, “A Great Leap Forward for Democracy and the Rule of Law? Brazil’s Mensalão Scandal”, Journal of Latin American Studies, forthcoming de 2016.

[2] See Matthew Taylor, “The Federal Judiciary and Electoral Courts”, in Corruption and Democracy in Brazil (Notre Dame, IN: University of Notre Dame Press, 2011), 162–83.

[3] McCombs, Maxwell. Setting the Agenda. Cambridge: Polity, 2004.

[4] Mendel, Toby, e Eve Salomon. The Regulatory Environment for Broadcasting: An International Best Practice Survey for Brazilian Stakeholders. Debates Communication and Information. Brasília: UNESCO, 2011.

[5] Moncau, Luiz, Gregory Michener, Marina Barros, e Rafael Velasco Braem. Avaliação de Transparência do Ministério Público. Rio de Janeiro: FGV-Open Society Foundations, 2015.

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