—Juliano Zaiden Benvindo, Associate Professor at the University of Brasília and CAPES-Humboldt Senior Fellow at the Max-Planck Institute for Comparative Public Law and International Law
A significant transformation is taking place in Brazil’s system of government. The country has a long history of discussion of whether its political system should maintain its presidential form or whether parliamentarianism – and, most recently, semi-presidentialism – would function as a more reasonable and effective system for governance. The debate has been stormy at all levels, but the truth is that radical changes have already been put into practice within the presidential system, to the point that it looks like a distinct one. It is no longer “coalition presidentialism”, as the literature has dubbed it, but a sort of informal co-optation semi-presidentialism that exacerbates the costs of political support. Such an informal system raises the stakes of cohabitation between the President and the Speaker of the House (and, to a lesser extent, the President of the Senate) if no incentives for blatant pork-barreling (and corruption) are on the table. For Bolsonaro, it has become his most successful autocratizing strategy, though a very unstable one. According to current polling data, the odds that he may lose the presidential elections in October are high. In such circumstances, what may this legacy mean for Brazilian democracy? Is there any positive outcome of such a transformation? And what may comparative politics and democratic studies learn from such a shift in Brazil’s presidentialism?
Comparative constitutional law normally focuses on the traditional pathway to autocratization, such as court-packings, parliamentary co-optation, changes in electoral rules, extension or elimination of term limits, governmental assaults on civil liberties, attacks on the media and opponents, among others. The abuse of the constitution for unconstitutional goals is also an important feature of the so-called “third wave of autocratization,” even though the metaphor of waves might be misleading. Those movements are normally addressed as strategies of would-be autocrats or autocrats to hold their grip on power. Yet, a compelling debate lies in the paradoxical legacies of such transformations. For instance, Alexander Liman and Vladimir Kozlov argue that compliant political activism that helps strengthen authoritarian rule can become self-reinforcing and non-compliant once the regime is over. David Landau sustains that populist constitutions may provide mechanisms that, while “[creating] appropriate incentives for political leaders”, may also “facilitate popular solutions to crises and thus play a larger role than courts in defending against the democratic threat posed by populist leaders.” In all such examples, it looks like that tools that were first aimed at engendering coordination by political leaders for authoritarian goals could become tools for the citizens themselves to react “in concert against political leaders who transgress constitutional rules.” What may first work as an autocratizing strategy may, paradoxically, provide some positive outcomes to make democracy again “the only game in town.”
As an autocratizing strategy, the adoption of an informal co-optation semi-presidentialism is a symptom of a political system in tatters, whose dysfunctionality can be explored for undemocratic goals. At first glance, it also seems to be quite at odds with Bolsonaro’s former anti-system and anti-politics agenda that paved the way for his presidency. In 2019, Bolsonaro’s first year, his behavior was marked by direct confrontation with the political system, but it obviously did not work, especially because Brazilian governments are, unless successful coalitions are built, minority governments, which is aggravated by the high level of party fragmentation. The backlash was so notable that such a fragmentation functioned as a “shield against authoritarianism,” and the Supreme Court was not much called upon for such a role. The premise was that “a political system which is largely fragmentary such as the Brazilian may prove quite effective in curbing some visible authoritarian projects, especially when the president’s party shares only a fraction of the votes needed to pass legislation, let alone a constitution amendment.” At the same time, Congress itself began passing legislation that would strengthen its powers, visibly taking advantage of a president who, though still holding large popular support, was proving himself weak at pushing his agenda. It was when the governmental control over the national budget was severely weakened, to the point that some began arguing that the country’s system of government was leaning towards a sort of “soft parliamentarianism” or “semi-presidentialism”. Governance, in such a configuration, was marked by cohabitation as conflicts between the President and the Speaker of the House were common.
The shift in the system of government, however, would effectively gain ground after Bolsonaro’s second year. New internal elections took place for the chiefs of both Houses, and the newly-elected Speaker of the House, Arthur Lira, adopted the strategy of joining forces with Bolsonaro while controlling the distribution of budgetary grants to lawmakers. For such a purpose, non-transparent mechanisms of sharing budgetary grants became the new normal, thus raising the incentives for pork-barrel and corruption. Bolsonaro was fast and effective to readapt his strategy in order keep himself in office and build a sustainable, though volatile, coalition in Congress. Since Parliament’s rebellion was caused by the lack of incentives for co-optation – and not by ideological and programmatic opposition – providing such incentives and transferring them to an ally in Congress would be the natural call for changing the critical landscape, even if this meant blatantly surrendering to the so-called “old politics”.
Such a shift has been successful to the point that, unlike previous crises during his administration, Congress is mostly siding with Bolsonaro in conflicts with the Supreme Court, which has now become the major target of his institutional attacks. Bolsonaro needs the conflict as an electoral strategy to divert people’s attention from the economic crisis that is now afflicting the country. The Supreme Court itself – and also the Superior Electoral Court – are currently the main targets because, as a typical would-be autocrat, Bolsonaro needs to discredit the electoral system as defeat looks likely. He also may need it as a bargaining chip for some immunity once leaving office. Moreover, the Supreme Court is about to decide whether the so-called secret budgetary grants are unconstitutional or an internal political matter, which could destabilize Bolsonaro’s coalition in Congress. Neither the Speaker of the House, Arthur Lira, nor the President of the Senate, Rodrigo Pacheco, have really reacted to Bolsonaro’s blatant attacks on the Court, since they can also reap the benefits of discrediting it. There is also a corporatist behavior as many congresspersons were involved in corruption scandals whose trials are under the Court’s authority. The backlash against the abuses of the so-called “Operation CarWash,” which had convicted several politicians, has also served well as a legal argument to discredit a Court that, up until recently, kept acknowledging such an operation as a milestone in Brazil’s anti-corruption agenda. By producing noise, Bolsonaro lays the groundwork for a more troubling crisis once the election approaches and thereafter. The question is whether it will be strong enough to prevent Bolsonaro from leaving office.
Despite all the threats and the attacks on Brazil’s institutional framework, there should be a differentiation between the psychological drive Bolsonaro adopts as an electoral and autocratizing strategy, and the legacy for the political system that will highly impact on future governments. Perhaps more daunting for Brazilian democracy is not Bolsonaro’s behavior itself nor his shocking capacity of mass persuasion – which does not mean that they are not serious -, but how he has deeply disrupted “coalition presidentialism”. If Lula da Silva wins, it will be certainly a hard endeavor to provide incentives to bring back the system to its status quo ante. There is possibly no return , which begs the question of how to find a balance in the incentives for building a stable political coalition if the federal budget and much of its control and distribution are now under Congress’ control. For national governance, especially in such a fragmentary party system, it is certainly a hindrance when the national budget loses central coordination and becomes profoundly parochial, aimed basically at satisfying the needs of every single congressperson’s constituency. Though autocratization will suffer a counterattack with Lula da Silva’s victory, it does not follow that a crisis is not already contracted for the future.
It is in such a scenario that the discussion of “semi-presidentialism” or even “parliamentarianism” gains momentum, but it is visibly not for the best reasons. The argument that is usually raised in favor of such a system is that it would appease the political system by sharing powers between the president and the prime-minister and creating more flexible mechanisms for solving crises. But the truth is that, as Brazil’s political system currently behaves, it would be born from two major defects of such a system: cohabitation and a minority divided government. It is not that the debate is not valid and solutions for overcoming the current scenario are unnecessary, but, as it has been presented, it looks rather like a workaround aimed at strengthening congressional powers amid the likelihood that the Worker’s Party (PT) would once again be in power. There are also questions about the constitutionality of such a change. As such, it would only consolidate the defects of the current presidential system, instead of focusing on the incentives for a less clientelistic form of governance.
However, such a legacy might also provide some important insights about how to strengthen governance, as the form of congressional co-optation has been clearly on the radar of the national debate and under the review of the Supreme Court. This is where there might be a paradox of such a disruption in the “coalition presidentialism”: more than ever, institutionalized clientelism through budgetary grants controlled by Congress can be depicted as the most fragile facet of Brazilian institutional design towards autocratization. It is where Bolsonaro could finally begin to hold more successfully his grip on power, and it can become the central mechanism for consolidating his autocratizing project if he is reelected.
The Supreme Court still resists, but for how long? Luckily, Brazil has a former very popular and charismatic president running for office, so the incumbent will be challenged by a very strong former incumbent. It is one such things that proves that, beside institutions and structures, contingencies do matter. But the lesson is clear: counting on lucky contingencies may work in this case, but it is not a good omen when expanded as an argument for comparative constitutional law and comparative politics. Contingencies do matter, for sure, but they are, after all, contingencies and may prove short-lived.
Suggested citation: Juliano Zaiden Benvindo, Informal Co-Optation Semi-Presidentialism: Bolsonaro´s Most Successful Autocratizing Strategy, Int’l J. Const. L. Blog, May 12, 2022, at: http://www.iconnectblog.com/2022/05/informal-co-optation-semi-presidentialism-bolsonaros-most-successful-autocratizing-strategy.
 See Abranches, S. (2018) Presidencialismo de Coalizão. Companhia das Letras, São Paulo; Calvo, E., Guarnieri, F. & Limongi, F. (2015) Why Coalitions? Party System Fragmentation, Small Party Bias, and Preferential Vote in Brazil. Electoral Studies, 39, 219-229; Katz, A.S. (2018) Making Brazil Work? Brazilian Coalitional Presidentialism at 30 and its Post-Lava Jato Prospects. Revista de Investigações Constitucionais, 5, 77-102.
 See Dixon, R. & Landau, D. (2019) Constitutional End Games: Making Presidential Term Limits Stick. Hastings LJ, 71, 359.
 See Maerz, S.F. et al. (2020) State of the World 2019: Autocratization Surges – Resistance Grows. Democratization, 27, 909-927; Hellmeier, S. et al. (2021) State of the World 2020: Autocratization Turns Viral. Democratization, 28, 1053-1074.
 Varol, O.O. (2015) Stealth Authoritarianism. Iowa Law Review, 100, 1673.
 See Landau, D. (2013) Abusive Constitutionalism. University of California, Davis, 47, 189-260.
 See Lührmann, A. & Lindberg, S.I. (2019) A Third Wave of Autocratization is Here: What is New About It? Democratization, 26, 1095-1113.
 See Tomini, L. Don’t Think of a Wave! A Research Note About the Current Autocratization Debate. Democratization. See also Juliano Zaiden Benvindo, The “Metaphor of Waves” in Latin America: A Fragmentary Reality? Int’l J. Const. L. Blog, Jun. 23, 2021, at: http://www.iconnectblog.com/2021/06/the-metaphor-of-waves-in-latin-america-a-fragmentary-reality/
 See Libman, A. & Kozlov, V. (2017) The Legacy of Compliant Activism in Autocracies: Post-Communist Experience. Contemporary Politics, 23, 195-213.
 See Landau, D. Personalism and the Trajectories of Populist Constitutions. Annual Review of Law and Social Science, 16, 307.
 Weingast, B. (2006) Designing Constitutional Stability. In Democratic Constitutional Design and Public Policy Analysis and Evidence, (Eds, Congleton, R. & Swedenborg, B.) MIT Press, Cambridge, pp. 343-366.
 Przeworski, A. (2005) Democracy as an Equilibrium. Public Choice, 123, 253.
 Santos, N.C.B. & Gasparini, C.E. (2020) Orçamento Impositivo e a Relação entre os Poderes no Brasil. Revista Brasileira de Ciência Política, 339-396;
 See Elgie, R. (2011) Semi-Presidentialism: Sub-Types and Democratic Performance. Oxford University Press, 12-13; Schleiter, P. & Morgan-Jones, E. (2009) Review Article: Citizens, Presidents and Assemblies: The Study of Semi-Presidentialism beyond Duverger and Linz. British Journal of Political Science, 39, 877; Sedelius, T. & Linde, J. (2018) Unravelling Semi-Presidentialism: Democracy and Government Performance in Four Distinct Regime Types. Democratization, 25, 136-157; Linz, J.J. (1990) The Perils of Presidentialism. Journal of Democracy, 1, 51-69.
 Lagunes, P.F. & Svejnar, J. (2020) Corruption and the Lava Jato Scandal in Latin America. Routledge; Valarini, E. & Pohlmann, M. (2019) Organizational Crime and Corruption in Brazil: A Case Study of the “Operation Carwash” Court Records. International Journal of Law, Crime and Justice, 59, 100340.
 Elgie, R. (2011) Semi-Presidentialism: Sub-Types and Democratic Performance. Oxford University Press, 12-13.
 See Neves, Marcelo. Semipresidencialismo é desastre constitucional, https://www1.folha.uol.com.br/opiniao/2022/04/semipresidencialismo-e-desastre-constitucional.shtml; Cattoni, Marcelo. Da impossibilidade constitucional do semipresidencialismo: um diálogo com Marcelo Neves, https://www.migalhas.com.br/depeso/364400/da-impossibilidade-constitucional-do-semipresidencialismo.