notes-books-limitsOnExportingTheUSCongressModelToLatinAmericaMorgenstern

Excerpts from Limits on Exporting the U.S. Congress Model to Latin America by Scott Morgenstern

" Latin America’s democracies all have constitutions based on the U.S. model of presidentialism in that their presidents and legislatures are elected separately and on set schedules, the two branches have independent powers, and neither branch can dissolve the other. Beyond these framework traits, however, there are important differences between the United States and Latin American constitutions and other features of the democratic framework, such as the electoral and party systems. As a result of these and other factors, the Latin American legislatures are not co-equal branches with the executive; few significant bills that become law are initiated in the legislature, most legislatures cannot increase the budget, and most executives are empowered to alter the legislative agenda and they can often end-run the legislatures on policy proposals. Given their more limited roles, Latin American legislatures attract very different sorts of legislators than in the U.S. case. As I show in this chapter, many Latin American legislators have only limited interests in becoming policy experts, writing legislation, or even winning reelection. ... In order to develop this argument, the body of this paper is broken into three sections. The first contrasts the U.S. and Latin American legislators’ interests by focusing on the low reelection rates across Latin America and those countries’ lack of a long-term continual experience with democracy. I argue that these factors limit the Latin American legislators’ incentives to professionalize their workplace and the necessary time to do so. Not only do interests contrast, but so do the institutional frameworks that direct how legislators pursue their goals. This is the subject of the next two sections. The first of these focuses on how constitutional differences affect the legislatures’ role in elaborating the budget and other legislation, arguing that the constitutions and courts have severely limited the role of most Latin American legislatures in these areas. The U.S. Congress also faces some important impediments, but their possible scope of action is much wider. The result, then, is that the Latin American legislators should be less interested in spending time, money, and political resources to develop their own expertise or the staff and bureaucratic institutions to aid them in writing and reviewing complex legislation. The succeeding section then turns to how the party and electoral systems influence legislators’ relation with voters and leaders, thereby influencing legislators’ preferences with regard to the committee system and other legislative structures. The argument is similar; as a result of the unique U.S. party and electoral systems, the structure of the U.S. Congress—which is a reflection of these systems—should be unique. ... For a legislature to adapt new forms or practices, legislators must see an accord between proposals and their interests. An important aspect of their interests lies in whether the legislators foresee long-term legislative careers (i.e. have static ambition) or whether they see their time in the legislature as a relatively short stop-over on their way to other elected positions or posts in the bureaucracy, party hierarchy, business, or other areas (i.e. they are progressively ambitious). By and large, U.S. legislators fit the first description while Latin American legislators fit the latter. This pattern is evident from a view of reelection rates; In the United States around 90 percent of legislators seek reelection and 90 percent of the seekers are successful. In Latin America, by contrast, the percentage of legislators returning to their posts after an election ranges from 0 (in Mexico where reelection is prohibited) to around 60 percent in Chile, and the median rate is surely under 50 percent. This contrast between the United States legislators and their colleagues from Latin America should yield different desires among the legislators with respect to the development of the legislature as a professional organization. The United States across time allows a test of this proposition, since there was a marked change from static to progressive ambition. Polsby (1968) reports that in the post-civil war period, turnover rates were at least 50 percent, but this changed thereafter. He argues that legislators began building careers in the legislature when the job became more attractive, partly owing to the larger federal budget that resulted from the government’s preparation for and prosecution of WWI, legislators began to seek longer careers in Congress. Once the legislators saw the Congress as a career, they began formulating an organizational scheme to serve their long-term interests and improve their ability to accomplish their goals. The results were the seniority system, a more complex organizational scheme, greater staff resources, and a decentralization of power in the chambers. These factors, moreover, had a rebound effect, that further increased the attractiveness of a legislative job, thus leading even more legislators to pursue careers in the legislature (though they also should have incited extra competition too). The U.S. story stands in contrast to the modal Latin American case. When legislators do not expect to stay in the institution for more than a few years, they have little incentive to expend their time and resources into building the institution. Further, given the very low support for the legislatures among Latin American voters and the region’s difficult economic situation, pushing for extra resources will not generally endear legislators to voters. Upon election Colombian president Uribe summed up this sentiment: “How is it possible that the Congress continues spending 600,000 million pesos per year in a country that has to close hospitals due to a lack of resources?” (Spain’s El Pais, 6/23/02; my translation). Finally Mayhew (1974) argued that U.S. legislators have built their organization in ways to aid them in the areas critical to their reelection: credit claiming, position taking, and advertising. By extension, if legislators are uninterested in reelection, they will not see a value in building similar institutions. These factors go a long way towards explaining the great lack of physical and staff resources (at least vis-à-vis the U.S. members of Congress) available to Latin American members of congress (MCs). First, many Latin American legislative libraries are inadequate, and though this is changing rapidly, some legislators even lack phones, let alone computers. Unlike U.S. legislative offices that have a virtual army of people to answer letters and queries from constituents, work on different aspects of legislation, and advise on policy matters, most Latin American members of congress have little more than a personal secretary and access to the party’s staff of advisors. A survey of legislators undertaken by a team from the University of Salamanca1 (P61) highlights the importance of this issue. In Chile, usually considered to have one of the most professional legislatures, 41 of 48 legislators who answered the question cited a lack of staff or other resources as the principal obstacle to fulfilling their legislative duties (39 others answered either that they did not know). Large percentages answered similarly in other Latin American cases. If the legislators recognize this need, why don’t they vote themselves larger staffs? In most cases the answer is not that the president will veto any spending increases, as most legislatures are formally autonomous in determining their operating budgets. An important part of the answer, I contend, is progressive ambition. Investing the time and resources to professionalize the legislature requires significant time, and the investment of political resources. When asked, one legislator responded to me that voting to increase the staff support in the Uruguayan legislature would be political suicide, since the legislature is already seen to be wasting the limited public funds. Building a coalition of support for such a project, then, would require a political entrepreneur willing to risk electoral defeats (and outsider status) for the return of a vague notion of professionalization. Progressively ambitious legislators would not perceive personal benefits from the fruits of such a project, and would thus be unlikely to lend support. While this argument is relevant to the simple idea of building staff support, the argument is magnified when considering larger support mechanisms that take many years to develop. In addition to U.S. legislators’ private and committee support staff, U.S. MC’s can demand investigative reports from the Congressional Research Service, the Congressional Budget Office, or the Library of Congress. These institutions developed over long periods of time and are quite costly. It should come as no surprise that legislators with short time-horizons and dubious levels of support in the public would not move to drain their country’s limited budget to support these types of institutions. Further, few legislatures have a long enough history for such institutions to develop as they have in the United States. There have, however, been major improvements in recent years, many of which are directly attributable to U.S. influences. One of the most notable “export initiatives” has come from the U.S. Agency for International Development’s (USAID) program in legislative strengthening.1 The stated goals of the program are to “(1) help build political will to strengthen the legislature; (2) build the legislature’s representation, lawmaking, and oversight capabilities; and (3) improve its infrastructure and management so that itcan carry out its responsibilities.” (Handbook of Legislative Strengthening, p. 27). The program has thus given loans and fostered “modernization committees” in several countries. USAID’s report gives credit to the new Nicaraguan committee for “the development of a legislative information system, web page, and bill-tracking system” (p. 28). They also cite assistance to the Chilean legislature in setting up a system to improve correspondence and contact with constituents and tout their program in Peru as an improvement on many developed countries, in that the new program allows citizens to forward their comments on current legislation directly to legislators (p. 39). Their report also discusses methods for improving committee work, including suggestions for revising rules and staffing. Among the many other projects that the detailed report discusses are those to develop software to help legislators review budgets and another to establish non-partisan research centers (not unlike the U.S. Congressional Research Service).

To an important degree the USAID programs imply some bias towards a U.S.-style of legislative professionalization. Still, the Handbook and other publications do suggest that the programs should take into account and be sensitive to the particularities of the given case. This is crucial, but there is a potential for misinterpreting this proposal; the programs should be sensitive to the needs of the legislators, not just the legislatures. That is, even if there is a recognizable need for legislative professionalization, a USAID program that does not further the interests of the individual legislators will fail to win the enthusiastic support necessary for full implementation. In short, if the collective action problem here is not solved, the public good—a professionalized legislature—will not come about.

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The Constitution and the Initiation and Modification of Legislation ...

In comparison with the United States, most Latin American presidents have a much greater ability to determine the legislative agenda and force or limit particular legislative outcomes (Cox and Morgenstern, 2001). ... The thesis of this section, then, is that the Latin American constitutions inhibit legislative proactivity, and without such power, these countries’ legislators should have only limited interests in building structures that would aid them in writing bills and overseeing the executive. ... Though formal democracy now reigns throughout the region, their legislatures continue to maintain the reputation as places to hold debates or ratify executive initiatives, rather than initiate bills, develop budgets, and oversee executive actions (Mezey 1979; Packenham 1970). This reputation even permeates the legislators themselves, as is evident in a battery of questions from the Salamanca survey which asked legislators about how they see their various roles. While most of the surveyed legislators see themselves playing at least a relatively important role in “elaborating laws” and “controlling government action,” a large percentage see themselves as playing little role in “elaborating the budget.” Chile exhibits the most remarkable difference; while 97 percent of legislatures answered that they play either a large or pretty large role in elaborating laws, only a few more than one-half answered as such with regard to the budget process.

The responses with regards to the budget process, and to a lesser degree the high number of legislators that assigned only a fair amount of importance to their role in elaborating laws, suggests that the Latin American legislatures have a much more limited policy role than the U.S. Congress. Four constitutional variables have a particular influence in explaining this difference. First, many Latin American presidents are endowed with constitutional decree powers that allow them to implement legislation without legislative interference. Others have had extensive powers delegated to them from the legislatures, and others have appropriated “para-constitutional” powers as well (Carey and Shugart, 1998). U.S. presidents have executive orders, and these too have allowed presidents some important leeway in avoiding the legislature at times (Cooper, and West. 1988; West and Cooper, 1989-90; Ragsdale and Theis, 1997; Mayer, 1999, 2001; Morgenstern 2002). Generally, however, the scope of the Latin American presidents’ decrees is wider. At least where this is the case (e.g. Argentina, Brazil, and Peru), the legislators have fewer incentives to develop structures that would aid in their independent law-making abilities, and perhaps limited interests in trying to reviewing executive decisions or overseeing executive operations.

Second, many Latin American presidents are empowered with a partial veto. Presidents with this power can effectively kill logrolling coalitions by disemboweling deals made among legislators. When the value of deal-making is questionable, legislators should be less willing to organize a scheme that facilitates give-and-take negotiations. In two countries, Brazil and Venezuela, the president’s package veto powers are weaker than in the United States. In these two countries, the president’s veto can be overridden by a 50 percent majority, and is thus only suspensatory. By itself this should embolden the legislators to move towards a policymaking mode, but the legislators in these two countries are hindered by decree powers and the party system

Third, legislators in many Latin American countries face presidents who can determine their agenda through invoking constitutional “urgency provisions.” The specific provisions vary, but overall they allow the president to force a legislative decision within a short time period. In some cases, this is merely an agenda-setting mechanism, but an urgent bill becomes law if the legislature fails to act in Chile, Uruguay, and Ecuador. 1 In some cases the president’s continuous use of urgency provisions greatly impedes the legislature’s ability to work on its own bills, since the almost limitless executive legislation must come first

The most striking feature of Table 1 was the large percentage of Latin American legislatures who see only a limited role for themselves in elaborating the budget. This result is tied to the fourth factor affecting the Latin American legislatures’ role and organization: the constitutional provisions that limit the legislatures’ ability to initiate or modify legislation that affects budget outlays and some other important issue areas. With only two exceptions, Mexico and Argentina, the constitutions of Latin America prohibit the legislature from significantly altering the budget or proposing laws that increase government expenditures, though some constitutions allow the Congress to propose increases if they can also specify a source for the necessary funds. The Brazilian Constitution is typical. Article 166:3 states that amendments to the president’s budget must be compatible with the multiyear plan and that new projects must be financed through the specified reduction in other areas (which cannot include debt payments, inter-governmental transfers, or a few other areas).

These types of provisions, of course, prevent the Congress from initiating any project that involves expenditures, and severely limits the ways in which the Congress can modify executive proposals (Baldez and Carey, 1999). Siavelis (1997) cites an example in Chile where the Congress could not deal with maternity leave, since it would have repercussions for Social Security, another area of exclusive executive initiative.

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The Chilean experience appears to differ sharply from that in Argentina, where the constitution does not prohibit the legislature from proposing bills that imply new government costs. According to the database compiled by a team in Salamanca, Spain1 there were 521 bills proposed by either the House or Senate between late 1994 and early 2001 (the second mandate of Menem) that were either vetoed (56) or eventually became law.2 Unlike the database that details the bills discussed in the Chilean legislature, the records for the Argentine legislature show the Congress proposing—and passing—important legislation much of which did necessitate new government expenditures ... The Latin American legislatures do have budget committees and policy committees that review executive initiatives. These committees, however, work under severe time pressure and do not generally attempt to formulate alternative comprehensive budgets. In Uruguay, for example, the legislature carefully reviews the budget, and adopts numerous amendments. The committee, however, has only 45 days to review the budget and at least through the mid-1990s (when I conducted field research) the committee members had no policy, economic, or accounting advisors.9 (9: It had only a few secretaries and one “technical” advisor who could explain the process of how to review the amendments, where to find previous bills, etc.) As a result, the legislators had to rely on the executive branch for policy information or analysis of policy proposals. For these reasons, the vast majority of the amendments were technical in nature.

The Argentine budget committee is organized and acts somewhat differently. In part due to hyperinflation, the Argentine Congress did not seriously review the budget until 1992. In 1992 the Congress changed the total spending only minimally (8 million pesos of a 35.7 billion peso budget), but it did succeed in funding some new programs (at the expense of “undisclosed” cuts in the president’s budget). In 1994 the Congress only added two amendments, which were subsequently vetoed. But, they also succeeded that year in eliminating a key provision in the budget that would have allowed Menem sweeping powers to reshape the economy by privatizing state enterprises without congressional approval. This limited role did not necessitate an elaborate advisory or support system, and legislators had little more than personal assistants.1 The parties, however, did develop extra-legislative think-tank like institutions to support their legislative contingents, though according to Mark Jones (personal communication), the most successful of these ran with just three people and two computers. Still today the legislature has failed to develop a support system, and the executive therefore continues to dominate the process. One final area that is severely affected by the degree of power held by legislatures is the lobby system. When legislatures hold limited ability to mold legislation, lobbyists will expend limited resources on legislators. They will, alternatively, turn to the executive branch, putting pressure on the bureaucrats who write the legislation to write favorable legislation. While the bureaucrats may be value in shielding decision-makers from electoral pressures to improve efficiency, bureaucrats’ lower level of accountability and separation from the exigencies of legislative coalition building also suggest normative problems

The Courts’ Role in Enforcing Limits on Executive Authority

In addition to this greater scope of powers, the Latin American presidents have had, at least historically, more success in resisting challenges to their authority. This success, which has often allowed abuses of authority, is endogenous to the question of the legislature’s role, and it is therefore necessary to explain this phenomenon. A full answer would have to include issues such as collective action problems, leadership issues, and resources, but here I will focus on the role of the courts in adjudicating between the branches. The main premise is that the Latin American courts have lacked the power of judicial review and have been less independent from the executive than in the U.S. case, thus facilitating executive victories over the legislature. This is not meant to imply, however, that the U.S. courts have fully constrained the U.S. presidents. The courts have sometimes blocked U.S. presidents’ actions, but a 1987 ruling (discussed below) with some surprising parallels to a later Argentine decision made it very difficult for the legislature to overturn executive decisions. As a result, while some Latin American constitutions afford their presidents a greater scope of powers in comparison with the U.S. case, the ability of the presidents to make their decisions stick is often similar.

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The courts’ debilities are clear in the case of Argentina, where the Freedom House (2002) sees “an abject absence of professionalism in the judiciary.” Helmke (2002) finds that the Argentine courts have ruled against the presidents with some regularity, particularly when the president was in a weak position. But, it is still clear that the presidents have been able to clean house or pack courts throughout the country’s history. It was after such a packing that the court made its infamous 1990 Peralta ruling that validated Menem’s continual use of decrees of necessity and urgency (DNUs), with only insignificant limits. ... The Peralta ruling, as noted, was parallel to, if not imported from, a 1987 U.S. Supreme Court decision (Immigration and Naturalization Service v. Chadha) that ruled legislative vetoes unconstitutional. Thereafter, if the Congress disapproved of a bureaucratic rule or executive order, they, like their Argentine counterparts, had to pass a law—subject to an executive veto—in order to overturn the decision (Cooper, 1983; Leigh 1984). ... For example, Furnish (2000) argues that recent reforms in Mexico may help their court develop an effective system of judicial review, and the courts’ new independence since the end of PRI rule may greatly improve their independence. The Brazilian courts have also seen great change since the country’s return to democracy in 1985. There the court has gained the power to review the constitutionality of laws and decrees and strike them down.1 Under the 1988 reforms, the president, the executive committee of the congress, a political party, a governor, the Brazilian Bar Association, or several other specified actors can request that the Court review a law in the abstract, without litigants.2 ... While this new activism may help limit executive abuses, the Latin American courts cannot be expected to generate a U.S.-style balance between the executive and legislature, owing to the constitutions that grant much more authority to the Latin American presidents

The Influence of Electoral and Party Systems on Representation, Leadership Roles, and Committee Systems

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First, no Latin American country currently employs a U.S.-style single-member district system, and the systems that they do employ vary greatly.13 (13: Mexico, Venezuela, and Bolivia do use single member districts to elect some but not all of the legislative seats.) All cases employ some variant of a list system, thus giving leaders some power in choosing or influencing candidate selection. This significantly alters the relation between the legislative rank-and-file and their leaders

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Where leaders closely control candidate nominations or legislators’ future careers, legislators should display more loyalty to leaders than to constituents. Campaigns therefore focus more on parties relative to candidate personalities, and once elected, these legislators may pay much less attention to local constituencies than in the U.S. case. ...Mexico provides an example of how less-personalized campaigning, plus a lack of interest in reelection, affects legislators’ “homestyle” (Fenno 1978). Through interviews, legislators demonstrated very different interests in maintaining contact with voters and working on local issues. Some saw “case work” as beneath them, while others enjoyed it and saw positive benefits from that role. The no-reelection rule meant that the legislators could ignore constituent service, but the parties, which are interested in reelection, could not. As a result they took a greater role in setting up systems to provide these services. ... The Salamanca surveys are also suggestive of legislators’ differing views about their representative roles. Table 2 details the responses to a question (P58) about who the legislators see themselves as representing. There is an important degree of variance across cases, with a much greater percentage of Mexican, Peruvian, Argentine and Colombian legislators giving a “politically correct” response about representing all citizens in their country, and much larger percentage of Uruguayans answering that they see themselves as representatives of the party or partisans. The two non-federal cases were at the opposite extremes in terms of the percentage who answered that they represented their province or district with just 13 percent answering as such in Uruguay and 51 percent in Chile. In the federal countries, only about one-quarter of the legislators in Argentina, Colombia, Peru and nine percent in Mexico answered that they saw themselves as representatives of their districts. ... Another question from the survey (P28) asked about the importance of directing resources for the legislators’ home states. In Argentina and Uruguay a fair percentage of legislators (26 and 22 percent respectively) saw this as having little or no importance, but 85 percent of Mexican legislators, 93 percent of the Colombian representatives, and every Chilean legislator answered that this was quite an important role (having either mucha or bastante importancia) ...

the collective action aspects of multipartism versus the U.S. bipartism limit the applicability of the U.S. model in other countries. In the U.S. a partisan majority votes to install a legislative leader who, within limits of the delegation, controls the agenda, determines committee assignments, and generally runs the chamber’s business. Further, that majority leader can be the focus of negotiations with the other legislative house or the president, as that person can, to an important degree, speak for the legislative majority. Where there is no majority, the chamber and committee leadership will have more circumscribed powers and the majority versus opposition dynamic will look quite different.

Chile’s committee system shows that even with a majority actor in the legislature, there are viable and perhaps preferable alternatives to the U.S. model. In addition to holding the presidency since the inauguration of democracy in 1990, Chile’s center-left Concertación has maintained majority control of the legislature. The coalition, however, has faced a difficulty in using the committee system to serve legislators’ reelection interests that is complicated by multiparty nature of the coalition. Their solution has been to rotate the chairmanship of the committees among coalition members, so that each legislator could credit claim and advertise to their constituents. Perhaps this shows the limits of Mayhew’s oft-cited phrase about the difficulty in imagining a better organizational scheme than the U.S. Congress if the institution were nothing but a reelection machine.

A final aspect of the party system that affects legislative organization and functioning is the independence of the legislative party from the executive. Even when U.S. presidents have enjoyed a partisan majority in the legislature, they frequently have had trouble winning support for their initiatives. Latin American presidents, by contrast, often direct their legislative contingents and thus face limited pressure by legislatures when their parties do control a majority of legislative seats. There would not likely be much movement towards the development of oversight mechanisms in Chavez’s Venezuela, Menem’s (or Peron’s) Argentina, or Fujimori’s Peru. As an example, even though a new constitution in 1994 which gave Menem the right to run for reelection also gave the Argentine Congress the right and obligation to set up a committee to oversee executive decrees, the necessary enabling legislation was not passed. Of course the opposite system also exists in Latin America, where multipartism leaves presidents with very limited support in the legislature. These cases might be propitious for an interest in developing oversight of the executive, but collective action problems could inhibit the formation of the requisite structure or the necessary cooperation among the otherwise competitive parties.

Conclusion: The Limits of US Exports It is undeniable that Latin American legislatures have modeled important aspects of their systems after the U.S. case. They have moved towards a system of permanent rather than standing committees. They have begun to use roll-call voting on a more consistent basis and have improved their bill-tracking systems. Veteran consultants from U.S. campaigns have directed Latin American elections, thus yielding U.S.-style media battles and phonebanks... ...

In the past, Latin American legislatures were considered places to debate, express discontent, recruit for the executive, ratification and legitimate government decisions, or decide upon distribution of clientelistic resources (see, for example, Baaklini 1992; Mezey 1979; Kornberg and Mussolf, 1970; Kornberg 1973. Abuses of power by decree-wielding presidents and statements like those of Colombian President Uribe suggest a continued prominence of this view. However, recent and successful efforts in numerous countries to reform constitutions and shore up the Latin American legislatures in other ways also suggest that at least some policymakers in both North and South America have come to accept a new assumption about the proper role of the legislatures. This shift in assumptions is perhaps related to arguments about how the concentration of power in the executive cheapens the democracy and inhibits democratic consolidation (O’donnell, 1994; Shugart and Carey, 1993; Ordeshook and Shvetsova, 1997). If the purpose of the institutions changes, so too must the organizational scheme. In order to make such a move, the Latin Americans must deal with the institutional frameworks that inhibit or prevent a significant policy role for the legislatures, overcome resource limitations (which are not unrelated to the low esteem in which the public holds the legislature), maintain their democracies long enough for the new institutions to take hold, and attract politicians into the legislature who are motivated to fulfill the new roles.

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