—Juliano Zaiden Benvindo, Associate Professor at University of Brasília and CAPES/Humboldt Senior Fellow at the Max-Planck Institute for Comparative Public Law and International Law
“PEC Kamikaze”, “PEC of Despair” or “PEC of the Coup” – This is how a recently approved proposal for constitutional amendment (Proposta de Emenda à Constituição – PEC, in Portuguese) has been dubbed as the potentially last resource for President Jair Bolsonaro to gain some votes for the presidential election in Brazil in October. The amendment establishes the so-called “state of emergency”, which would authorize the government to raise public spending and create new social benefits despite electoral and fiscal rules prohibiting them within the electoral year. As a strategy of serious economic consequences whose electoral goals are not hidden – it includes a sunset clause with an expiration date of December 31st, 2022 – such an amendment is the upmost expression of how constitutional erosion in the country has reached new highs. It shows that not only has Congress sided with Bolsonaro in his autocratic goals, but also that the Supreme Court has grown increasingly timid as threats against it have intensified.
Lucky contingencies matter, though. Despite all efforts and attacks on Brazil’s rule of law, the fact that Bolsonaro is being challenged by the very popular former President Lula da Silva may explain why Brazilians, according to the current polls, are likely to get rid of Bolsonaro in the coming elections. It is certainly a relief, but it also speaks volumes about the difficulty of constitutional and institutional means to provide themselves effective mechanisms to fend off would-be autocrats such as Bolsonaro. In the end, Brazil may overcome such a nightmare and tragedy, but perhaps only because there is a politician who is strong enough to beat him and a society that is finally awakening for reaction, not because institutions are working properly to protect Brazil’s democracy. Such a dysfunctional response begs the question of how institutions and society will react in the pretty likely scenario of Bolsonaro not conceding his defeat and even plotting a coup against Brazilian democracy. Where is constitutional law failing in such cases?
Autocratization strategies are well documented in the constitutional and political science literature, and Bolsonaro’s ones do not differ significantly from that playbook. Still, there are some nuances in the Brazilian case that make it quite compelling: the multiparty and fragmented bicameral Congress, the rather independent and interventionist (though politicized) Supreme Court in interbranch conflicts, and fairly robust accountability institutions in comparison to most Latin American and middle-income countries. Bolsonaro has been pretty successful in disrupting some key accountability institutions, such as the Federal Public Ministry, the Federal Police, the Federal Controller’s Office (Controladoria Geral da União), the Advocacy-General of the Union, and the Financial Activities Control Council, despite the high professionalization of the Brazilian bureaucracy and several legal protections against such moves. Moreover, Brazil has seen its “coalition presidentialism” turning into a sort of “informal co-optation semi-presidentialism,” which exacerbates clientelism and corruption through non-transparent budgetary grants as an incentive for co-optation. Step by step, Bolsonaro has built a political base that, despite its volatility and instability, can be enough to approve constitutional amendments. Such a perverse mutualism has provided high incentives for congresspeople, and in particular the Speaker of the House, Deputy Arthur Lira, to abuse procedural rules of deliberation in Congress, since Bolsonaro’s reelection means keeping mechanisms of co-optation undisturbed.
The consequence is that, unlike his first year, when confrontation with Congress was a key element of his populist agenda, Bolsonaro began achieving some success in his legislative proposals, though most of them are concentrated on also providing benefits to congresspersons’ own political interests. The “informal co-optation semi-presidentialism”, which is anchored in distributing non-transparent budgetary grants to congresspersons in exchange for support, has disrupted the Brazilian “coalition presidentialism” to the point that it is now Congress itself that determines how and where large sums of public money should be spent. There is no central coordination and rational criteria based on cost-benefit analyses or public policies studies, but rather sheer parochialism and clientelism, if not blatant corruption. The numbers are staggering: in 2014, Congress controlled 4% of the federal budget that could be freely managed, while, in 2022, 24.57% of it is in Congress’s hands. It is possibly a unique case in the world (just for comparison, in the United States, such grants amount to 2.4% of the federal budget and are far more transparent and subject to social control). This is a shocking outcome, given that Brazil features several fiscal rules, many of them of constitutional nature, as well as rather strong accountability institutions that exist exactly to foster greater transparency in public spending and restrain such behaviors, especially when they also negatively impact on political competition and breach electoral rules.
What is striking is that, despite those blatantly unconstitutional actions, the Supreme Court has behaved in a very self-restrained manner and has not really interfered in Congress’s deliberations. This is very different from the way the Supreme Court has behaved when Bolsonaro’s culture wars agenda and his deleterious public policies are at stake. The Supreme Court, in such matters, has acted more effectively, as occurred during the COVID-19 crisis and in cases involving the spreading of fake news. Yet, when it comes to the corrupt backscratching between the executive and the legislature, the Court, which is comparatively powerful for interbranch conflicts, has favored strategy over law. All this looks even more concerning since the Supreme Court has ruled several times that constitutional amendments can be unconstitutional either because they violate formal procedural rules for lawmaking or because they infringe the vast array of unamendable clauses of the Brazilian Constitution. The approval of the PEC Kamikaze, for example, led to tactics such as suddenly changing the rules to accept remote voting (which facilitates reaching the minimum quorum), a deliberative session that began at 6:30 am and lasted less than a minute, and workarounds to bypass prior mandatory deliberation in specific committees, among others. Such transgressions of elementary procedural rules are nowhere to be found in Brazilian history, and they have gained momentum both because the “informal co-optation semi-presidentialism” raises incentives for disruptive behavior and because Congress does not see itself as threatened by the Supreme Court.
President Bolsonaro’s continuous attacks on the Supreme Court are mutually beneficial for both Congress and the executive: a timid Court will think twice before striking down the unconstitutional actions that led to a transformation in Brazil’s “coalition presidentialism.” It will instead act in a more restrained way for self-preservationist purposes, carefully considering every single next step in an unstable political environment even if this means not enforcing the Constitution. In the end, blatant unconstitutional constitutional amendments such as the “PEC Kamikaze” will not be effectively challenged by the Court, because the trade-offs have all been severely politicized. This is a dangerous game. Strategic behavior matters, for sure, but whether the Supreme Court should enforce the Constitution or balance it with sheer politics is central for understanding its role in a democracy. It raises the insurmountable dilemma of whether constitutional principles – and their deontological nature – should prevail over political machinations of various sorts. The Supreme Court has observed and acted according to how the pieces of such a political game are played, but the danger is that it may not only lose sight of the Constitution, but also miscalculate its own strength to confront undemocratic behaviors.
This just proves that autocratization processes are dynamic and find every single opportunity to advance despite the existence of a reasonable institutional and legal framework. The disruption of the “coalition presidentialism’ by an “informal co-optation semi-presidentialism”, which is certainly Bolsonaro’s most successful autocratizing strategy, led to an overhaul of the very meaning of the supremacy of the constitution. For a would-be autocrat, those constitutional rules are just a hindrance to his or her grip on power, and thus they need to be changed – sometimes, unabashedly changed – no matter what. If Congress, even though largely fragmented, sees the opportunity to also empower itself by increasing the costs of co-optation (and hence control over larger sums of the federal budget), the Constitution will be the fatal victim. Since the political system is in tatters, the Supreme Court becomes naturally the last resort. But here Adam Przeworki’s recently tweet on the US Supreme Court could be smoothly transported to Brazil: “Final blow to the myth that counter-majoritarian institutions protect rights. [It] depends on who is on the Court.” Even if most of “those who [are] on the Court” still play the cards of democracy, the truth is that all the attacks the Court and its justices have suffered by Bolsonaro and his acolytes have led it to be just another, though relevant, political player in the dispute, not that powerful institution that exist exactly to provide the last call when it comes to defending the Constitution.
The truth is that institutions matter a great deal, but they are not enough and may not be the last resort for defending democracy. The background movements of civil society and the unpredictability and imponderability of contingencies, though more difficult to assess and interpret than constitutional rules and designs, should be a focal analytical point when it comes to incentives for an effective institutional reaction against autocratization. Brazilian institutions have been seriously disrupted, for sure, but they are not dead. The Brazilian Constitution has been unconstitutionally amended in a frenetic pace, but, despite all damage, its core and legacy are still mostly preserved. Yet, what is fascinating of the current moment is that Brazilian society is finally awakening and reactions in favor of democracy are gaining momentum, from grassroots movements to CEOs and CFOs of the major economic sectors in the country. The so-called “Letter to Brazilians in Defense of the Rule of Law” (Carta às Brasileiras e Brasileiros em Defesa do Estado Democrático de Direito), which is an ecumenical document defending Brazil’s democracy that recalls the previous “Letter to Brazilians” (Carta aos Brasileiros) that was written in 1977 against the civil-military dictatorship, will be read on August 11 at the Law School of the University of São Paulo with vast support of diverse segments of society. And there is the lucky contingence of Brazil featuring former President Lula da Silva as a front runner, whose popularity and recall make a significant difference in the electoral dispute. This is a turning point.
The upcoming months until the October elections will be tense and dangerous. An adapted reedition of January 6 in Capitol Hill at Praça dos Três Poderes is almost a certain bet, with serious implications for Brazil’s democracy. Yet, at least for now, all the polls are showing that Bolsonaro will lose in the first or second round by a reasonable margin. Brazil’s democracy will likely survive: not because institutions have the right tools to fend off autocratization, but because society and lucky contingencies may play an even more central role. Constitutional law should know better.
Suggested citation: Juliano Zaiden Benvindo, Constitutional Law Should Know Better: Society and Lucky Contingencies in Brazil’s Awakening Democracy, Int’l J. Const. L. Blog, Aug. 5, 2022, at: http://www.iconnectblog.com/2022/08/constitutional-law-should-know-better-society-and-lucky-contingency-in-brazils-awakening-democracy/
 See A Cassani and L Tomini. Autocratization in Post-Cold War Political Regimes (Springer International Publishing 2019); R Dixon and D Landau Abusive Constitutional Borrowing, (Oxford University Press 2021); D Landau, ‘Abusive Constitutionalism’ (2013) 47 University of California, Davis 189, 189-260; T Ginsburg and AZ Huq How to Save a Constitutional Democracy, (University of Chicago Press 2018); A Przeworski Crises of Democracy, (Cambridge University Press 2019) ; S Levitsky and D Ziblatt How Democracies Die, (Crown 2018). OO Varol, ‘Stealth Authoritarianism’ (2015) 100 Iowa Law Review 1673, 1673; KL Scheppele, ‘Autocratic Legalism’ (2018) 85 University of Chicago Law Review 545, 545-83; Mark A Graber, Sanford Levinson, and Mark Tushnet, Constitutional Democracy in Crisis? (Oxford University Press 2018
 G Helmke and J Ríos-Figueroa, ’Introduction: Courts in Latin America’ in G Helmke and J Ríos-Figueroa (ed.), Courts in Latin America (Cambridge University Press 2011) 1-26; JZ Benvindo The Rule of Law in Brazil: The Legal Construction of Inequality, (Hart Publishing 2022) 113-145.
 See Timothy J Power and Matthew M Taylor, Corruption and Democracy in Brazil: The Struggle for Accountability (University of Notre Dame 2011) ; MA Melo and C Pereira Making Brazil Work: Checking the President in a Multiparty System, (Palgrave Macmillan 2013); JZ Benvindo The Rule of Law in Brazil: The Legal Construction of Inequality, (Hart Publishing 2022) 146-178.
 See RB Arantes, ’The Federal Police and the Ministério Público’ in TJ Power and MM Taylor (ed.), Corruption and Democracy in Brazil: The Struggle for Accountability (University of Notre Dame Press 2011) 184-217
 P Cavalcante and P Carvalho, ‘The Professionalization of Brazilian Federal Bureaucracy (1995-2014): Avances and Dilemmas’ (2017) 51 Revista de Administração Pública 1, 1-26.
 S Abranches Presidencialismo de Coalizão, (Companhia das Letras 2018) 440
 JZ Benvindo and A Osório, ’Brazil’ in R Albert, et al. (ed.), 2020 Global Review of Constitutional Law (I-CONnect and the Clough Center for the Study of Constitutional Democracy at Boston College 2021)
 See G Helmke and J Rios-Figueroa, ’Introduction’ in G Helmke and J Rios-Figueroa (ed.), Courts in Latin America (Cambridge University Press 2011) 5.
 See 85STF, ADI 829-3-DF (1994); ADI 939 (1994); ADI 2362 (2011); ADI 2666 (2002); ADI 3865 (2006); ADI 3105 (2005); ADI 1946 (2003) JZ Benvindo, ’Brazil in the Context of the Debate over Unamendability in Latin America’ in R Albert and B Oder (ed.), An Unamendable Constitution? (Springer 2018) 358-361.
 See J Habermas, Between Facts and Norms (MIT Press 1996) 194-268; K Günther, The Sense of Appropriateness: Application Discourses in Morality and Law (SUNY Press 1993) ; R Dworkin, Law’s Empire, (Harvard University Press 1986); JZ Benvindo, On the Limits of Constitutional Adjudication: Deconstructing Balancing and Judicial Activism (Springer 2010).
 See DC North Institutions, Institutional Change and Economic Performance, (Cambridge University Press 1990)