The Two Faces of Institutional Innovation: Promises and Limits of Democratic Participation in Latin America 2017941894, 9781786436658, 9781786436641

Table of contents :
Front Matter
Copyright
Contents
List of tables
Preface
Introduction: The theory of institutional innovation – an overview
1 The two sides of institutional innovation
2 A second source of innovation: Critical public policy
3 Participatory budgeting as a democratic innovation: Origins, expansion and limits
4 Councils and monitoring in Latin America as forms of participatory accountability
5 Innovation in the wrong direction: The Brazilian and Colombian constitutional traditions, Ministério Público and the courts
Conclusion: The two faces of innovation
References
Index

Citation preview

The Two Faces of Institutional Innovation

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ADVANCES IN CRITICAL POLICY STUDIES Series Editors: Frank Fischer, Rutgers University, New Jersey, USA, Holger Strassheim, Humboldt University, Berlin, Germany, Steven Griggs, De Montfort University, UK and Laureen Elgert, Worcester Polytechnic Institute, USA The Advances in Critical Policy Studies series offers scholars and practitioners an innovative and interdisciplinary forum to further the understanding and analysis of public policy. Critical policy studies as a field of inquiry has emerged as an effort to understand policy processes not only in terms of apparent inputs and outputs, but more importantly in terms of the interests, values, and normative assumptions that shape and inform the practices of policy-making. Led by distinguished series editors, and supported by an esteemed international advisory board, this series brings together critical approaches to policy studies and invites scholars to engage actively with the interpretive interplay between normative and empirical perspectives, as well as qualitative and quantitative methodological issues. The audience for the Advances in Critical Policy Studies series is global, and books in the series will appeal to those interested in public policy analysis, political theory and analysis, governance, discourse and deliberation, interpretive analysis, policy practices, and methodological issues.

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The Two Faces of Institutional Innovation

Promises and Limits of Democratic Participation in Latin America

Leonardo Avritzer Federal University of Minas Gerais (UFMG), Brazil

ADVANCES IN CRITICAL POLICY STUDIES

Cheltenham, UK • Northampton, MA, USA

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© Leonardo Avritzer 2017 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library Library of Congress Control Number: 2017941894 This book is available electronically in the Social and Political Science subject collection DOI 10.4337/9781786436658

ISBN 978 1 78643 664 1 (cased) ISBN 978 1 78643 665 8 (eBook)

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Typeset by Servis Filmsetting Ltd, Stockport, Cheshire

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Contents vi vii

List of tables Preface Introduction: The theory of institutional innovation – an overview

1

1 The two sides of institutional innovation 2 A second source of innovation: Critical public policy 3  Participatory budgeting as a democratic innovation: Origins, expansion and limits 4  Councils and monitoring in Latin America as forms of participatory accountability 5  Innovation in the wrong direction: The Brazilian and Colombian constitutional traditions, Ministério Público and the courts

13 31

100

Conclusion: The two faces of innovation

131

46 75

References  141 Index 165

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Tables 1.1 The dynamics of participatory innovation 27 2.1  Types of innovation and conditions for their success 44 3.1  Overlapping elements for participatory budgeting success57 3.2  General data on participation in São Paulo’s participatory budgeting (PB) 60 3.3  Analysing participatory budgeting (PB) as a participatory innovation 66 3.4 Participatory budgeting in Buenos Aires 68 4.1  Number of councils in cities with more than 100 000 inhabitants81 4.2  Comparison of cities with high, medium and low levels of participation 82 4.3  Presence of participatory interfaces in different areas of the Brazilian federal government, 2010 83 4.4  Proportion of public policy programmes that achieved at least 80 per cent of their original aims 84 4.5  Patterns of operation of participatory accountability institutions94 5.1  Comparison of sentences before and after plea bargain agreements awarded under Operation Lava Jato 113 5.2  Treatment of Worker’s Party (PT) and associates in Operation Lava Jato  115

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Preface This book expands on and reinterprets my previous analysis on democratic innovation. My two previous books Democracy and ­ the Public Space in Latin America and Participatory Institutions in Democratic Brazil have been part of the wave of books on the positive elements of innovation and participation. This book takes a more cautious approach based on both recent developments in Brazil and Latin America and the expansion and diffusion of democratic experiences in Europe and the United States. It follows the same analysis of previous books in the sense that I still regard democratic and participatory innovations in public policies as the greatest achievement of Latin American democratization processes. However, I propose in this work to qualify an acritical process of expansion of democratic innovation and to differentiate democratic innovation from judicial innovation. My point is that democratic innovation in public policy is bottom-up and democratizing, and in the worst situation it does not produce any damage to the democratic culture. Conversely, judicial innovation is top-down and linked to legal corporations. Drawing on the Brazilian experience since 2013, I show in the book that there has been a connection between innovation at the judicial level and the strengthening of non-democratic actors at the judicial level. At the extreme, these actors are willing to challenge main tenets of democracy and even the rule of law itself. I wrote this book during a short stay at Wagner Graduate School of Public Service at New York University (NYU). I am very grateful to Salo Coslovsky and Gianpaolo Baiocchi for a warm reception at NYU. A number of people at NYU and the New School helped me to reach a final format of the book. Sonia Ocaño gave me very useful comments on the book’s central argument and helped me incorporate the argument on the judicial system. Other people made useful comments during presentations of the book’s argument. I would like to thank Andrew Arato and Carlos Forment who discussed the book’s argument on the Brazilian judicial system with me at the New vii

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School. Francoise Montambeault also helped me through discussions on both participation and the Brazilian judicial system during a short visit to Montreal. Enrique Peruzzotti helped me to design the final format of the book’s theoretical argument. Finally, Frank Fisher was enthusiastic about the project all along. I am very grateful to all of them. The ideas presented in the book are the result of several debates and interactions with people in Brazil and Latin America. In Brazil, Rogério Arantes and Marjorie Marona helped me to formulate the criticisms on the expansion of Brazilian judicial institutions. Yves Sintomer welcomed my criticism on the de-politicized expansion of participatory budgeting in Europe. Brian Wampler provided useful comments and criticism on several ideas presented in the book. Rocio Annunziata and Isidoro Cheresky encouraged me to learn more about participatory budgeting in Argentina. Alberto Olvera helped me understand the transformation passed by the Federal Electoral Institute (Instituto Federal Electoral – IFE). Felipe Hevia was kind enough to share with me his work on accountability in Mexico. Anthony Pereira has been following and encouraging my work on Brazil since we met at the New School during the 1990s. I am very grateful to all of them for helping me to make this book more comparative. I also want to thank the Brazilian CNPq (Conselho Nacional de Desenvolvimento Científico e Tecnológico –­ National Council for Scientific and Technological Development) for several grants to study the Brazilian judicial system and for the grant that allowed the creation of the INCT (Instituto Nacional de Ciência e Tecnologia – National Institute for Science and Technology), Institute for Democracy and Democratization of Communication (Instituto da Democracia e da Democratização da Comunicação). Barbara Lamounier and Priscila Zanandrez helped me with the tables and the biographical references for the book. It has been a pleasure to work with them. Colleen Brennan helped me in improving the English in the manuscript. Ana Faria joined me again in an enjoyable and productive stay in New York. It has been a pleasure to share time and experiences with her during all our stays abroad.

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Introduction: The theory of institutional innovation – an overview Institutional innovation has become one of the key concepts of democratic theory (Almeida, 2015; J. Cohen, 1997; Dryzek, 2000, 2006; Elstub et al., 2016; Fischer, 2000; Goodin, 2005, 2008; Habermas, 1994; Geissel and Newton, 2012; Smith, 2009; Spada, 2013). The origins of institutional innovation are rooted in recent changes in contemporary Northern and Southern democracies. On the one hand, in old and consolidated democracies of the North, changes in public policy in areas such as housing, the environment and compensatory policies have generated innovations that have increased the level of citizen participation and produced more effective results (Fischer, 2000; Fung, 2007; Fung and Wright, 2003; Sintomer et al., 2008; Sirianni and Friedland, 2001). At the same time, the idea of experimenting with democratic design has acquired relevance through the proliferation of mini-publics (Fung, 2003; Parkinson, 2006; Parkinson and Manbridge, 2012; Smith, 2009). Mini-publics are small groups ‘genuinely deliberative and representative enough to be genuinely democratic’ (Goodin and Dryzek, 2006, p. 220). Because of their size mini-publics have become experiments in democracy and in public policy. In certain cases, such as in the British Columbia experiment, mini-publics have discussed changes in electoral rules (Warren and Pearse, 2008). In other cases, such as healthcare in Britain, mini-publics have debated the quality of public policy and proposed innovation (Parkinson, 2006). Thus, experimenting with democracy has become an important political aim in the agenda of old and consolidated democracies. Alongside institutional innovations in the North, democratization in Southern countries has provided parallel cases of institutional innovation in new democracies, particularly in Latin America (Ackerman, 2007; Annunziata, 2011; Avritzer, 2013; Avritzer and Ramos, 2016; Hevia and Isunza, 2010; Ramos and Faria, 2013; Seele and Peruzzotti, 2010). The Latin American cases, and particularly 1

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the Brazilian case, have one similarity with and one difference from the Northern cases. The similarity is that they are also strongly concentrated in policy (Cambraia, 2014; Pires, 2011) and connected to social movements in important areas such as healthcare and social assistance (Cunha and Almeida, 2016; Ramos and Faria, 2013). The difference is that they are connected with participatory mechanisms that are institutions in charge of producing decisions that are binding for the political system, which makes them more effective but also more contentious (Avritzer, 2016a). The spread of institutional innovation in old, well-established democracies in the North, as well as in new democracies in the South, has made innovation a trendy phenomenon. Some experiences, such as participatory budgeting, have become world famous and are practised in all parts of the world (Allegretti, 2014; Sintomer, 2007, 2010). Other experiences, such as mini-publics, are practised from Australia to British Columbia (Warren and Pearse, 2008). Even in the legal system, innovation has been introduced but with highly ambiguous results (Avritzer and Marona, 2017). Thus, the issue of widespread diffusion of innovation is: are there limits to the positive aspects of political and institutional innovations, or are innovations good per se? Because there are good reasons to promote innovation but also to stick with a democratic core of norms without which democracy itself may be endangered, the second question is: how can we learn to separate the positive from the negative elements of institutional innovation? This book will try to answer these questions by differentiating types of innovation, reasons for introducing innovation and timing of political innovation and innovation diffusion. The first issue is perhaps the most important. The differentiation of types of innovation, a task carried out by only a few scholars (e.g., Hevia and Isunza, 2010), is important to discovering whether innovation serves to strengthen participation, to empower citizenship or to empower specific groups or corporations. I will argue that in many cases innovation can play the role of co-optation and disempowerment. It is also important to have a much broader grasp on diffusion of innovation because in many cases the adoption of innovation is limited to propagandistic effects. The second issue is areas of innovation. Innovation originated in areas of public policy in both Northern and Southern democracies. In the case of public policies, I will argue that innovation usually

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­ roduces positive results such as greater citizenship engagement or p more equitable distribution of public goods (Fischer, 2000, 2009; Pires and Vaz, 2010; Wampler, 2015). In addition, I will argue that innovation in public policy, even when it does not work well, never poses dangers to democracy. These cases should be clearly distinguished from the cases of innovation in judicial institutions, one of the key areas in which innovation took place in Latin America, particularly in Brazil but also in Colombia. This could be much more problematic, because the role of legal corporations in democracy cannot be compared with the role of engaged citizens. To evaluate these cases and provide a broader approach, I will define political/democratic innovation as the capacity of government to express political will and civil society inputs in several formats. Usually, these inputs are linked to the introduction and/or implementation of public policies, through which civil society and the state interact in order to democratize the state itself. Thus, one of the issues that the book will approach is the differentiation in innovation. I will argue that there are two types of innovation: political/democratic and administrative/judicial. Most of the literature conflates the two and assumes that administrative innovation can have democratizing effects. I will show in the book that this mistake goes back in history to the New Deal in the United States between 1933 and 1938 that bureaucratized the democratic drives behind progressivism (Pestritto and Atto, 2008, p. 15). Thus, innovation in policy needs to be differentiated into political and administrative. It is this book’s argument that innovations in new Latin American democracies also need to be differentiated in their administrative and democratic aspects. Figure 0.1 shows the model of differentiation of innovation that I am proposing. The differentiation between democratic innovation and administrative/judicial innovation is the main theme of this book. Political and administrative innovations became intertwined in Latin America and differentiation is complicated. I understand political and democratic innovations as those that, through changes in design, give citizens the capacity to participate in policy elaboration and to benefit from the results of policy. I understand judicial/­ administrative innovation in two different ways: as self-contained changes that strengthen rights-based policies and as top-down changes in policy made through judicial institutions and agencies that strengthen the power of the legal corporation members. They may both broaden

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Political

Democratic

Bottom-Up Horizontal

Judicial/ Administrative

Streered by Professional Self-interest

Top-Down Vertical

Institutional Innovation

Figure 0.1  Types of institutional innovation rights but even in those cases, the top-down examples do not favour the democratization of state and society’s interfaces. There has been a sharp increase in both democratic innovations and administrative innovations in Southern democracies, in particular in those located in Latin America. The motive for the concentration of innovation in Latin America is the process of constitution-making that took place in the region after democratization (Avritzer et al., 2017). Constitution-making took place in Brazil (1988), Colombia (1991) and Bolivia (2009), among other countries. In each of these cases, there were important innovations in at least two areas – participation and the organization of the judicial system. Participation was introduced as an innovation in Brazil in different parts of the 1988 Constitution. Among the important changes ­introduced is a significant increase in forms of participation, all of them grounded on the idea of broader participation introduced in Article 1. The Bolivian Constitution has similar articles. In fact, before Bolivia created its Constitution, it promulgated (in 1994) the Popular Participation Law – the Ley de Participación Popular (Oxhorn, 2001). Thus, all new constitutions in Latin America created new venues for participation and even the cases in which there has not been the crafting of new constitutions (Mexico and Argentina), participation increased through ordinary laws or international treaties. A similar innovation was introduced at the level of the organization of the judicial system. Brazil, Colombia and Bolivia introduced new forms of organization, whereas Argentina did not write a new constitution but added a large constitutional amendment in 1994 (Abramovich, 2009) and introduced new practices in the legal system. In Chapter 5, I will discuss the Brazilian and the Colombian cases. In the Brazilian case, the Ministério Público (Public Prosecutor’s Office)

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was the most important innovation. The Ministério Público and the idea of the separate autonomy of legal bodies emerged in the writing of the Brazilian 1988 Constitution. Autonomy of legal bodies was practised in Brazil and is now extended to many areas, including the Federal Police. The practice of legal autonomy is creating autonomous judicial bodies above sovereignty and the rule of law, showing that innovations need to be differentiated according to their role in deepening democracy. Colombia is a different case in that there is a much more self-limited role attributed to the Constitutional Court than in Brazil. In the next section I will differentiate these innovations according to their capacity to promote more active citizenship and strengthen democracy or to organize judicial corporative bodies.

DEMOCRATIC INNOVATIONS IN BRAZIL, ARGENTINA AND EUROPE: ORIGINS, EFFECTS AND EXPANSION Democratic innovations in Latin America have introduced many new policy experiences in Latin America and most of them have led to the increase in social participation or state and society interfaces, among them participatory budgeting, policy councils, citizenship councils such as the Federal Electoral Institute, (Instituto Federal Electoral – IFE), in Mexico and the comités de vigilancia (monitoring committees) in Bolivia. In all cases, we see both success and failure; figuring out what makes an innovation successful is key to the continuing success of innovations. The most important democratic and participatory innovation that has emerged in democratic Brazil is participatory budgeting. Participatory budgeting is a local practice of public deliberation on budget issues. Introduced in Porto Alegre in 1989, participatory budgeting was expanded to 103 cities in 2003 and to 201 additional cities in 2008 (Avritzer and Wampler, 2008). It is practised in more than 300 Brazilian cities today. Participatory budgeting spread beyond Brazil to other South American cities and was very successful in Argentina in the city of Rosário (Annunziata, 2011, 2013). Participatory budgeting has been adopted in Europe, and we see cases such as Portugal where the main phenomenon is the death of participatory budgeting (Allegretti, 2014). How can we evaluate the different experiences of participatory budgeting?

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Participatory budgeting is characterized by four elements: the first is the delegation of sovereignty by elected mayors to a set of regional and thematic assemblies that operate through universal criteria of participation. Every citizen can participate and vote on budget issues in regional and thematic assemblies. The second characteristic is the combination within the participatory model of different elements of participation that belong to different participatory traditions, such as direct participation and election of councillors at the city level. The third element is the principle of self-regulation. The rules for participation and deliberation are defined by the participants themselves and are adapted or changed every year (B. Santos and Avritzer, 2002). The fourth element is an attempt to invert priorities in the distribution of public goods through a combination of participation and technical decisions about who should have access to public goods. Participatory budgeting had two main effects in Porto Alegre from 1990 to 2004. The first effect was a sharp democratization of political practices. As I will show in Chapter 3, this democratization involves the following aspects: more participation at the local level, better information on and transparency of state policies, transfer of decision-making from the mayor to the participatory budgeting council, learning negotiation skills by grassroots actors and democratization and decentralization of public goods so that more resources are going to poor rural areas and deprived neighbourhoods. Theorists of democratic or participatory innovation should pose two questions: (1) What factors account for these results? (2) Can we keep these characteristics in an expanded design? I will try to answer both questions in Chapter 3 in order to evaluate potentials and problems in the theory on democratic innovation, posing three criteria to evaluate success: the capacity to democratize state practices, the capacity to expand citizenship and the capacity to distribute public goods. It is my main point that participatory budgeting was successfully exported from Brazil such that all three of these elements were retained, as I will show when I discuss the experience in Rosário in Argentina. It is also my contention that important experiences such as in Buenos Aires and São Paulo were unsuccessful because they could not resist the political system’s drive to incorporate democratic innovation in a ‘politics-as-usual’ scheme. The second important innovation I will deal with in the book is participatory accountability. In Chapter 4 I will fully explain the concept, which I differentiate from social accountability (Peruzzotti

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and Smulovitz, 2006) because it has a clear participatory element and because it represents a non-electoral and participatory form of continuation of public policies. I include in the cases of participatory accountability, councils in Brazil and Mexico and comités de vigilancia in Bolivia. Brazil is an example of success in the areas of healthcare and social assistance due to a state policy that instituted separation between elected mayors and a control body. The case of Mexico is very important because it shows both the success of an independent control body and the later political disempowerment of this same body – the IFE. The IFE incorporated citizens’ practices and implemented a citizenship policy of control of electoral fraud between 1996 and 2006 (Avritzer, 2002; Schedler, 2000, 2002). Yet the IFE is also a case in which success was transformed into co-optation. The IFE’s history is of co-optation of citizens’ control by political parties and the quota system. Finally, Bolivia is a successful case of participatory accountability since the enactment of the Ley de Participación Popular. The law not only transferred 20 per cent of the total central government revenues to local communities but also allowed the creation of monitoring committees that greatly enhanced the local administrations’ performance in the areas of healthcare and education. After 2010, many cases in Bolivia involved the disempowerment of these committees by the Movement for Socialism (Movimiento al Socialismo – MAS). Thus, we have three cases of participatory accountability: Brazil, Mexico and Bolivia. The three cases show a variation in one key aspect – the relation of accountability to the political system. Only when accountability becomes a state policy involving citizens’ control of policy will innovations in accountability work well. This control cannot be politically disempowered or administratively performed, as I will show in the approach to judicial innovation.

JUDICIAL INNOVATION: BETWEEN THE EXPANSION OF RIGHT AND SELF-INTERESTED AUTONOMY BY CORPORATIONS The last case I will deal with in the book is judicial innovation. There is not enough literature that differentiates political innovation from administrative/judicial innovation. The main assumption in the literature is that innovation encompasses both dimensions – p ­ olitical

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The two faces of institutional innovation

and administrative. However, there are enough grounds to seek an analytical distinction. The issues that differentiate political from administrative innovation are the nature of the bureaucratic control over innovation and the top-down elements of the policy. In the political cases I described earlier, participatory budgeting, comités de vigilancia and the IFE are all based on the same assumption, namely, breaking hierarchical control of bureaucracy and the political system over policies and transforming them into horizontal and participatory deliberation and/or accountability. When we move from political to administrative innovations, we do not see this change. Administrative control remains top-down in all forms of administrative innovation. In addition, when we deal with the legal/judicial system we may see an additional problem of the role of professional corporations (Bourdieu, 1986; Luhmann, 1982; Rosanvallon, 2015). Professional corporations cannot be considered equivalent to citizens in the way they handle policies for one single reason: they dispute power with other state agencies and actors. The issue of creating new rules in the legal system requires a different approach. It is from this perspective that it is difficult to retain the idea that administrative and legal innovations involve the processing of citizens’ input. On the contrary, in most cases of administrative innovation, there is no democratic input. It is from this perspective that I will analyse the third case of innovation – the Ministério Público and the Supreme Courts in Brazil and Colombia. The Ministério Público follows from a judicial/administrative innovation made by the Brazilian 1988 Constitution. According to the Constitution, the Ministério Público would be the institution in charge of defending various rights and the union assets against corruption, in addition to its prerogatives in criminal cases (Rojas, 2011). To pursue both aims the Ministério Público would have full administrative autonomy. Thus, two innovations were introduced at the same time in the creation of the Brazilian Ministério Público: the idea of diffuse rights and the idea of organizational autonomy. The Ministério Público in that case is a legal and administrative innovation that tried for a long time to defend its role as a representative of civil society institutions with a similar democratic drive (Pinto, 2004), a claim accepted by many scholars and social actors in Brazil with a few exceptions (Arantes, 1999). The Brazilian Supreme Court is not an innovation per se but the constitutionalization of judicial review is.

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The Ministério Público’s strengthening role in the Brazilian ­ olitical scenario shows what is wrong with the conflation of adminp istrative and political innovation. It is true that in its first years it created legitimacy through the defence of civil and social rights, such as the right to health services and the rights of minorities such as the Brazilian indigenous population (Avritzer and Marona, 2017). However, as the Ministério Público matured as a legal institution, it revealed the problems of conflating political and legal innovation by both establishing a professional corporation-specific agenda and circumventing issues linked to individual guarantees. In Chapter 5 of the book I will use Ministério Público and the political decisions of the Brazilian Supreme Court as an extreme case of lines that political innovation should not cross. However, Brazil is not the only case of judicial innovation. I will also analyse in Chapter 5 a case that seems to me more successful than Brazil’s, namely the Constitutional Court in Colombia. The Colombian case is different because innovation is more clearly centred on the expansion of rights. In addition to that, in the key moments of dispute between the executive and the Constitutional Court it reiterated its role of revising the written Constitution and not on rewriting the Constitution. My point in this regard is that we should always bear in mind in the evaluation of institutional innovation the capacity of new institutions to foster citizenship and deepen democracy, a capacity that the judicial system may not have in some cases. This capacity should be clearly differentiated from judicial institutions’ challenge to the balance of power, which is where most of the Latin American cases of judicial innovation are heading. The last issue approached in the book is the different possibilities in regard to the consequences of innovation. In regard to participation I will show how innovation unleashes democratic impulses that deepen democracy. This is clearly true for cases of participatory budgeting, councils, the IFE and comités de vigilancia. However, the literature follows a logic that claims that once these innovations are implemented, they can be reproduced. I challenge this logic in this work. According to this logic, participatory innovation should be understood as allowing democratic deepening in all cases. I will show in Chapters 3 and 4 that expansion and routinization of innovation unleash more complex and mediated processes. In some cases, innovations are reproduced but without the processes that deepen

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­ emocracy and citizenship. In other cases, innovation is successful, d but the political system contains it or thwarts its most important aspects. Yet, democratic dangers are not linked to democratic innovation, as I will argue in the book. Other cases, such as the Ministério Público and the Supreme Court in Brazil, and the Colombian Constitutional Court that has played a more democratic role than the Brazilian example, are different. In these cases innovation is undesirable whenever it weakens the normative core of rules without which the rule of law cannot operate. In this regard, two key issues will be analysed in the book. The first is the difficult position of the political system in relation to innovation. The political system should be understood as the aggregative and electoral force that has an ambiguous relationship with innovation. It may be the force that, in certain cases, brought in innovation, but most of the time it is the drive that blocks innovation, because, as I will show in the book, innovation stands in tension with the political system in at least two ways: in cases of bottom-up innovation it diminishes power-holders’ decision-making capacity on budget issues; in cases of participatory accountability it diminishes government control on policy orientation. Thus, democratic innovation has an element of deepening citizens’ control over policy and budgeting, which reduces the control of the political system over them. This is why the political system is ambiguous in relation to innovation. The political system uses different strategies for blocking innovation. The first is ignoring innovation or deliberative ways of handling problems (Avritzer, 2002; Dryzek, 2013; Elstub et al., 2016). However, there is a second issue, not addressed by the literature, that plays a similar role: co-opting innovation. I will argue in Chapters 3 and 4 that co-opting innovation takes place after innovation succeeds. I will show how that strategy was used in Mexico after democratization and in Brazil after the Workers’ Party (Partido dos Trabalhadores – PT) victory in the presidential elections of 2002. I will also show that it is in operation within the MAS in Bolivia. Thus, the other issue in regard to innovation is that even in cases where it breaks with the political system or pressures it to adapt to citizenship, there is still the possibility that new elements will be integrated into ‘politics-as-usual’ practices. In this case, democratic deepening fails. The other concern of the book is the dangers linked to judicial innovation. Judicial innovation may carry out the strengthening of a specific kind of professional corporation, namely, lawyers in charge

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of specific state institutions, the public ministry and the courts. Again, Brazil and Colombia are different cases and one of the most important innovations in Colombia – the acción de tutela (writ of protection) – does not require a lawyer. In the Brazilian case, lawyers pursued the strategy of strengthening rights but they also chose to strengthen their own corporation or government branch throughout this process (Bourdieu, 1986). The danger of judicial innovation is that disputes within monopoly institutions will be carried out in the name of innovation or that challenges to the democratic order will be made in the name of innovation, as I will show in Chapter 5 of the book. Thus, the aim of the book is to evaluate both democratic innovation and the different strategies used to strengthen or weaken innovations. To deepen democracy and strengthen innovation, it is essential for democratic theorists to have a realistic analysis of its positive and negative aspects. Up to now, democratic theorists have presented only the positive elements of democratic innovations. It is my position that a more thorough analysis is needed, one that can incorporate a more nuanced view that presents not only the positive aspects but also the limits and the distortions of democratic innovation. Such work, instead of making innovation weaker, could help it become a defining feature of old and new democracies.

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1. The two sides of institutional innovation FROM THE BUREAUCRATIC STATE TO STATE INNOVATION Democratic innovation is a change in course in terms of classical democratic theory. Classical democratic theory did not value democracy for its capacity to innovate (Downs, 1957; Sartori, 1980; Schumpeter, 1942). Many classical scholars approached democracy formation only from the perspective of its relationship with the formation of political will. In the field of classical democratic theory, government has been seen more commonly as stable and predictable than as innovative (Weber, 1992, Vol. 2, p. 956). Max Weber could be considered the most classical author on the subject of the predictability of different forms of government. According to his view, bureaucracy and predictable rules should form the basis of government, which should in turn make it possible for rational individuals to achieve their goals. Thus, for Weber, bureaucracy and government should be understood in terms of their capacity to produce ‘precision, constancy, stringency and reliability of. . .operations’ (Weber, cited in Mommsen, 1989, pp. 13–14). Certainly, Weber was also aware of the tension between bureaucracy, government and political will, yet his view was that nothing could be done in modernity to alleviate this tension, which was a result of modernity itself (Schluchter, 1980, p. 117). Thus, innovation, for Weber, was not among the desirable characteristics of government.1 The New Institutionalism tradition has also dealt with the matter of innovation in government. New Institutionalism emerged with the aim of highlighting symbolic and normative systems that affect and constrain organizational choices (Powell, 2007, p. 1). New Institutionalism considered cultural and normative systems as determining, facilitating or constraining choices taken by individuals within political institutions. The way the results of these 13

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constraints were perceived mirrored the way Weber saw political institutions, namely ‘as stable patterns for sequences of activities that were routinely enacted’ (Jepperson, 1991, pp. 144–5). Again, we see a tendency within political science to either oppose or ignore institutional innovation because of the fact that rules are required to generate predictability or constancy, which are central to the concept of institutionalization. However, not all New Institutionalist trends have adopted the same conception of the relationship between rules and predictability. Hall and Taylor described two conceptions of rule behaviour within New Institutionalism and showed, particularly within historical and sociological institutionalism, that changes in actor and actor behaviour also produce changes at the institutional level: ‘organizations often adopt new institutional practices, not because it advances means–ends efficiency of the organization but because it enhances the social legitimacy of the organization and its participants’ (Hall and Taylor, 1996, p. 940). Thus, institutional life can be understood in two ways. According to one conception, the role of institutions is to give predictability to social actors. This is the conception of rational choice institutionalists (Przeworski, 1992, p. 27; Tsebelis, 1994). According to a second conception, legitimacy issues need to be resolved by institutions, otherwise predictability becomes engrained and social actors lose the horizon their actions are aiming towards.

THE CRITIQUE OF THE INSTITUTIONALIST VIEW ON INNOVATION Since the early 1980s, democracy evolved in the direction of a critique of the bureaucratic conception of government (Fischer, 2003, 2009). The critique of the Weberian view on innovation came from different theoretical perspectives. The first is a critique of technicians’ and professionals’ capacity to handle social reality without the input of social actors, a theory I will engage with in Chapter 2. The second is a critique of the Weberian framework. Habermas and J.L. Cohen and Arato were part of an attempt to provide a second view of Weber’s concept of bureaucratization from a theoretical perspective. For them, the political system has to be open to innovation in practices brought by civil society actors to the public space. For Habermas, the political system is not only an institution or a

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form of political organization; it is also a form of state and society interaction. In spite of Habermas’s acceptance of the systemic view of administration,2 his work has opened the way for a broader ­conception of politics based on the concept of the public sphere (Habermas, 1989, 1996). The public sphere is the place where ‘a public opinion generated more or less discursively in open controversies is certainly an empirical variable that can make a difference’ (Habermas, 1989, p. 47). Public sphere involves debates in spaces outside normal politics, spaces such as associations, churches and schools (J. Cohen, 2009). It also gathers claims in relation to the administrative authority. In this way, the public sphere theory is a point of departure for a dual conception of politics according to which civil society actors can act and influence the generation of new political ideas. The issue is how to transform these new political ideas into a new form of institutional organization. In their seminal work on civil society, J.L. Cohen and Arato (1992; see also Emirbayer and Sheller, 1999; Glasius et al., 2004; Keane, 2003) help us to see how new drives within civil society associations may generate a non-bureaucratic view of the organization of political institutions. According to the authors, it is possible to maintain that ‘modernized cultural forms set in motion discursive practices and expectations that cannot be kept away entirely from everyday life through selective institutionalization. As associations are transformed into bureaucratic organizations, new egalitarian and democratic associational forms tend to emerge’ (Arato and J.L. Cohen, 1988, p. 50). In short, the authors propose to analyse the processes of bureaucratization within a dual framework capable of pointing out new organizational potentials and breaking away from democratic elitism’s one-dimensional analysis of bureaucratization. The institutional duality of contemporary organizational structures opens up the possibility of new organizational forms as well as new institutional designs. Both social movements and voluntary associations can generate new organizational forms. Both draw on the ability of the communicative infrastructure of contemporary societies to respond to the bureaucratization of previous forms of interest aggregation and issue articulation (Przeworski, 2010). Thus, the analysis of political parties and parliaments upon which the democratic elitism based its conclusion that bureaucratization was inevitable need not be dismissed, but it needs to be strongly relativized (Evans, 1995; Fung and Wright, 2003). The available i­nstitutional

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forms do not exhaust the possibilities of social organization or the need for new policy organization (Baiocchi et al., 2011; Evans, 1995; Fraser, 2003). Thus, it is possible to propose more democratic, less bureaucratic institutions. Solving the problems of bureaucratization requires providing a solution for the democratic debate that is different from those proposed by elitists (Dahl, 1971, 1990; Przeworski, 2010) and advocates of participatory democracy (Pateman, 1970, 2012).3 A dual conception of politics assumes the feasibility of a parallel but not alternative framework to the traditional mechanisms of interest aggregation. In such parallel spaces of discussion, new themes, new identities, and moral issues can be dealt with in ways that bypass the older forms of majority aggregation. The voluntary and democratic forms of action in this sphere renew the democratic potentials of the political system by facilitating discussion and decision within a local sphere of public participation that allows the aggregation of nonparticularistic interests. By pointing out this new possibility, contemporary critical theory provides an alternative to the democratic elitist response to democracy. Instead of narrowing it to a procedure for resolving materially conflictual interests, critical theory points out the possibility of retrieving a parallel potential proper to associative life. A local public sphere can become the primary place for discussing identities, forming solidarities and discussing interests on a non-­particularistic basis. Yet, the fact that such publics can develop an offensive ­capacity (Fraser, 2003) does not completely solve the problem of a Habermasian conception of an inherently defensive public sphere (Dryzek, 2000; Habermas, 1992) unless we suppose that the organizational drives generated by voluntary associations are automatically transferred to the political system, which would be a grave mistake. If, however, we assume that these drives may or may not be transferred and that there are different institutional methods of transferring them, we can see that in order for a public sphere to become offensive, it also needs to become deliberative. There are two main reasons why Habermasian critical theory falls short of providing democratic theory with a non-elitist alternative: it limits the relationship between the public sphere and the political system to the transmission of influence and it dramatically reduces public deliberation by limiting it to law-making. Following systems theory (Luhmann, 1982; Parsons, 1951; Zolo, 1992), Habermas the-

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matizes the relationship between the public sphere and the political system in terms of the transfer of influence. According to this view: [. . .]within the boundaries of the public sphere or at least of a liberal public sphere, actors can acquire only influence, not political power. The influence of a public opinion generated more or less discursively in open controversies is certainly an empirical variable that can make a difference. But public influence is transformed into administrative power only after it passes through the filters of institutionalized procedures of democratic opinion- and will-formation and enters through parliamentary debates into legitimate lawmaking. The informal flow of public opinion issues in beliefs that have been tested from the standpoint of the generalizability of interests. Not influence per se, but influence transformed into ­communicative power legitimates political decisions. (Habermas, 1996, p. 371)

Habermas’s position on the role of the public sphere within democratic political systems is clear – it is not to produce decisions or deliberation, but through a symbolic form of communication that he calls influence to demand that the consensus that emerges at the level of public opinion be reflected in administrative decisions. This is where the theory shows its clear limits. For Habermas, modern citizens do not find a parallel forum for practising democracy or for expanding their participation in public policy. Thus, Habermasian theory falls short of providing an alternative way of reconnecting reason and will because, regardless of the rationality of the results of public debate, it is left to power-holders to decide whether to incorporate them into policy (Bohman, 1996). In this sense, Habermasian theory falls prey to the voice or exit dilemma. Alternative theories of public deliberation expand the Habermasian framework (Avritzer, 2002; Baiocchi et al., 2011; J. Cohen, 1997; J. Cohen and Rogers, 1995; Fischer, 2009; Fung and Wright, 2003; Warren, 2001).

A SECOND SOURCE OF INNOVATION: PUBLIC DELIBERATION Habermas reduces the public sphere’s deliberative aspect almost to a fiction – as if it were theoretically possible but empirically impossible, or least dangerous. A different response to the connection between the public sphere and the process of political deliberation should be constructed. This perspective should not be regarded as

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contradictory to discursive consensus-building; rather, it facilitates the f­ormation of consensus on the policies to be implemented. According to this conception, ‘a legitimate political system should foster deliberation and thus increase the chances of arriving at correct (or valid, fair or true) decisions’ (Bohman, 1996, p. 6). The issue here is that without referring to institutional design, these new venues would never be constructed (Goodin and Dryzek, 2006; Smith, 2009). Public debate is tied to a framework that ‘both facilitates public discussion among equal citizens by providing favorable conditions for expression, association and discussion, and ties the authorization to exercise public power – and the exercise itself – to such a discussion by establishing a framework ensuring the responsiveness and the accountability of political power to it’ (J. Cohen and Sabel, 1997). Public debate and political deliberation should not be separated, because both aim not only to create societal consensus but also to establish more accountability for the exercise of power. Thus, a stronger mechanism than influence is required to connect the public sphere to the political system. J. Cohen (1997, 2009) provides us with a different possibility for connecting public debate and deliberation by stressing the institutional consequences of deliberation. He argues that the members of a democratic polity or public sphere should share ‘a commitment to coordinating their activities within institutions that make deliberation possible’ (1997, p. 72). This model provides a more effective way to bind deliberation and communication than Habermas’s. Within a deliberative model, success and failure are different moments of the process of deliberation: in the first case because it is deliberation itself that provides the framework for a consensus agenda; in the second because deliberation might also play a role in avoiding the disruption of communication. Fung and Wright (2003) take this debate further by giving a clearer institutional form to deliberative formats. For the authors, the phenomenon that has to be taken into account as a point of departure for reconstructing democratic vitality is to acknowledge: [. . .]that the problem has more to do with the specific design of our institutions. . . If so, then a fundamental challenge for the Left is to develop transformative democratic strategies that can advance our traditional values – egalitarian social justice, individual liberty combined with popular control over collective decisions, community and solidarity, and

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the flourishing of individuals in ways which enable them to realize their potentials. (Fung and Wright, 2003, p. 4)

Fung and Wright make an important point but also fall short of giving a comprehensive answer to the problem of innovation. The authors’ important contribution is the criticism of conservative institutional politics in the issue of new institutional designs. They are less interested in debate issues such as normative values or commitments to democracy and more interested in approaching the translation of these issues for citizens’ everyday lives. For them, the process of deepening democracy should focus on more concrete principles such as the focus on specific problems, the involvement of citizens in the decision-making process and the deliberative development of solutions to these problems (Fung and Wright, 2003, p. 15). Thus, their theory triggered a process of translation of deliberative democratic theory into principles of organization of the polity. This is the greatest merit of the book. However, there is a second, more problematic issue that I will tackle here, which is whether or not these principles that were deduced from important experiences in the United States, Brazil and India can be extended to other settings or to other institutions in a non-problematic way. Because the authors narrowed down the analytical frameworks to one successful case for each of their examples of empowered participation, they could not find any variation in the context for the implementation of participatory institutions (J.  Cohen and Rogers, 2003). Fung and Wright’s approach to enabling conditions for the emergence of participatory institutions falls into the so-called cultural trap. Because their model is based on a heuristic assumption that successful designs may be carried out in different contexts, they suppose that the enabling conditions for participation are the same across different cultures. This critique would be key in the evaluation of the expansion of participatory budgeting or the co-optation of the Federal Electoral Institute (Instituto Federal Electoral – IFE; made in Chapters 3 and 4). Fung and Wright’s book and other works on deliberation have greatly contributed to a theory of participatory democracy based on deliberative designs. However, one issue in the Fung and Wright framework remains problematic, namely, the connection of these innovations to the political system. This problem, which had emerged in Habermas’s theoretical framework during the early 1990s

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(Habermas, 1992; see also Bohman, 1996; Dryzek, 2000; Elstub et al., 2016; Hendricks, 2006), remained unresolved in the Fung and Wright model. It received an important solution in the deliberative systems framework.

TOWARDS DELIBERATIVE AND PARTICIPATORY SYSTEMS The question of how to move from a participatory or deliberative experiment to a form of innovation that influences the political system has remained unresolved from the emergence of Habermas’s work to Fung and Wright and other works on democracy (Avritzer, 2002; Baiocchi, 2005; Dagnino et al., 2007). Deliberative democracy and empowered participatory governance are a criticism of the aggregative view of democracy that dominated post-war democratic theory. They look for new institutional formats that can enhance practices that are very often devalued by the political system in contemporary democracies (Avritzer, 2002, p. 11; 2009, p. 8; Baiocchi et al., 2011, pp. 10–11; Fung and Wright, 2003, p. 16). Parkinson and Mansbridge present the idea of deliberative systems as a way to overcome the current stalemate in both deliberative theory and deliberative practice, a stalemate that makes the connection between deliberation and the political system problematic (Dryzek, 2001; Hendricks, 2006; Parkinson, 2006). As a solution to this problem, they propose a deliberative system as ‘a set of distinguishable, differentiated, but to some degree interdependent parts, often with distributed functions and a division of labour, connected in such a way as to form a complex whole’ (Parkinson and Mansbridge, 2012, p. 6). This definition is the starting point for thinking about deliberative systems in North Atlantic democratic theory – a form of integration through everyday talk and the formation of mini-publics (Parkinson and Mansbridge, 2012). The theory of deliberative systems resides at the intersection of talk-based mini-publics and parliament. Many authors have approached the idea of mini-publics. According to Goodin and Dryzek, mini-publics ‘are designed to be groups small enough to be genuinely deliberative, and representative enough to be genuinely democratic (though rarely will they meet standards of statistical representativeness, and they are never representative in the electoral

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sense)’ (Goodin and Dryzek, 2006, p. 220). Though Goodin and Dryzek did not emphasize the semi- or quasi-institutional form of mini-publics, other authors such as Archon Fung and Graham Smith have done so. Fung points out that mini-publics may acquire a semi-institutional form as they fulfil the promises of inclusiveness and democratic equality of deliberative democracy (Fung and Wright, 2003, pp. 34–42; Smith, 2009, p. 109). In his excellent piece on institutional designs for mini-publics, Fung highlights the existence of two different publics that can be participatory in terms of advising or in terms of problem-solving. For him, ‘this type [of public] envisions a continuous and symbiotic relationship between the state and the public sphere aiming at solving particular collective problems’ (Fung and Wright, 2003, p. 25). Thus, Fung builds upon the work of Dryzek and Goodin in the sense that he acknowledges the interaction between the state and society as a dimension of the institutional design of some mini-publics, and particularly of the ones he calls ‘participatory democratic governance’. The best mini-publics approach is the one adopted by Smith. Smith deals with the artificial dimension of mini-publics by making clear that ‘participants are selected using random sampling techniques’, but he also acknowledges that mini-publics are a type of assembly, put together by random selection (Smith, 2009). In this sense, he both draws from and goes beyond the existing literature on mini-publics by recognizing assemblies as an institutional format that differs from mini-publics. In my opinion, a number of points have been overlooked in the debate on mini-publics, and analysing them in depth may help us to better evaluate democratic innovation in Brazil.4 The first point overlooked is the artificiality of the recruitment process and the institutional detachment of the mini-public design from the political system (Sintomer, 2010; Smith, 2009). Many authors have argued that the key element in the effectiveness of mini-publics is the randomness of the selection process (Sintomer, 2010, pp. 480–82; Smith, 2009, p. 73). The most important democratic element of the lot is political equality generated by the common capacity of a deliberating citizen. The second most important element is a pragmatic epistemology that allows citizens to construct their own view of a public policy they had no role in designing (Ramos, 2013). Other authors, and Sintomer in particular, see the mini-public as a second best to broad publics. However, the

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theory of deliberative systems fails to recognize that mini-publics remain secluded from the real institutions and fail to influence real politics.5 In this sense, following a mini-public exercise there is always some doubt about how the outcome of the exercise may become influential within the broader political system. Thus, it remains doubtful whether democratic mini-publics can become intertwined with broader political institutions, unless we assume that talk-based politics are sufficient to establish this connection (Parkinson and Mansbridge, 2012). A second, often overlooked issue is how mini-public theoreticians conceive of the problem of inclusion. Inclusion in politics may assume different meanings: social inclusion of the poor, cultural inclusion of marginalized groups (Fraser, 2003), discursive inclusion (Habermas, 1994) or inclusion through policy deliberation (Fischer, 2009). From the perspective of mini-publics, inclusion refers to discursive integration. Deliberative democracy has often understood inclusion as the discursive or thematic inclusion of ideas and themes that were originally excluded from the public sphere (Dryzek, 2001). The debate on mini-publics has often followed the same reasoning, establishing the lot as a good way of decentring deliberation from already established interests (Sintomer, 2010). Goodin and Dryzek argue that ‘some claim’ of ‘representativeness’ is enough to establish a mini-public: By ‘some claim,’ we do not mean statistical representativeness – which only one design, the deliberative poll, explicitly asserts. Nor do we mean electoral representation. All ‘some claim to representativeness’ need mean is that the diversity of social characteristics and plurality of initial points of view in the larger society are substantially present in the deliberating mini-public. (Goodin and Dryzek, 2006, p. 221)

In my view, political inclusion needs to go beyond this to attempt to effectively include not only ideas but also those who are socially and culturally excluded from the polity. It is interesting to note that these issues affect a theory on deliberative systems. In my opinion, these authors fail to show how these two elements of politics – everyday talk and mini-publics – are integrated into the political system. Thus, there is an automatic assumption that if talk is successful, it will positively impact the political system. However, there is no guarantee that this will happen, and in this sense we are still within the Habermasian trap. As Pateman has recently

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remarked, mini-publics ‘are not integrated into the overall system of representative government or democratic institutions, nor do they become part of the regular political cycle in the life of a community’ (Pateman, 2012, p. 10). Meanwhile, participatory systems and participatory accountability as important innovations from the South, have remained undertheorized. Brazil, Bolivia, Mexico and Argentina’s participatory systems share a number of key characteristics. First, they emerged at the grassroots level with a strong presence of institutionalized local assemblies, small public or participatory accountability institutions. These assemblies have roots in different moments of these countries’ democratization process: local assemblies in Brazil, instituciones ciudadanas (citizen institutions) in México, comités de vigilancia (monitoring committees) in Bolivia, asambleas barriales ­(neighbourhood assemblies) in Argentina, and are results of the process of democratization or of state and society conflicts in the aftermath of democratization. With the evolution of democratization, as I will show in Chapter 3, new institutionalized forms of participation such as participatory budgeting emerged. These new forms of participation are institutional because they are triggered by decisions made by elected officials, for example in the case of participatory budgeting, where the mayor of Porto Alegre took the initiative of proposing its implementation and the city organized the assemblies (Baiocchi, 2005, p. 56) or in the case of the Ley de Participación Popular (Popular Participation Law – LPP) in Bolivia, it has been approved at the national assembly. They are also much broader in the sense that their success is related to the number of participants they are able to engage, although quality may also play a role.6 A second key characteristic of participatory systems in Latin America is how they connect participation with administration and representation. In Brazil, participation has been linked with administration since the introduction of participatory budgeting (Avritzer, 2002). Participatory budgeting decisions become mandatory after their approval at the participatory budgeting council, and the administration of Porto Alegre has established new administrative institutions such as the Gabinete de Planejamento (Planning Office – GAPLAN) to incorporate these decisions into the government’s proposed budget (Abers, 2000). We see similar tendencies in Bolivia, Argentina and Mexico. In Bolivia the LPP has decentralized 20 per

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cent of the budget to the local level and institutionalized almost 16 000 civil society institutions and social movement organizations (organizaciones territoriales de base – OTBs) to establish community priorities. Its most important achievement was the creation of administrative references for the rural communities. The experience of participatory budgeting in Rosário, Argentina, shows the integration of asambleas barriales into the institutionalized logic. Last but not least, the most intense democratic moment of Mexican democratization also involved the creation of new institutions such as the Federal Institute for Access to Public Information (Instituto Federal de Accesso a la Información Pública –  IFAI). Thus, it is possible to state that all Latin American cases of participation involved the emergence of institutions with strong participatory orientation that were part of an attempt to craft a participatory system. To summarize, we can say that a participatory system centres on the idea of linking different participatory and deliberative processes together and linking those processes to the political system and the state. These two links are responsible for the integration between participation and representation. This integration must take place via institutional mechanisms because it is politically naive to assume that all or most results of talk-based deliberation have the potential to make their way into the political system. Although they may or may not become a part of the political system, they stand their best chance through the institutionalization of political participation, although often this form of institutionalization becomes a very contentious issue, as it was in Brazil in 2014 or Mexico in 2007–08. These characteristics are not exclusive to the Brazilian experience of participatory budgeting but are also shared by successful experiences of participation in other South American countries, as the experience of participatory budgeting in Rosário shows.

POLITICAL INNOVATION AND CONTENTION IN NEW DEMOCRACIES The debate on political innovation or democratic deliberation poses two issues, one of them grossly overlooked by deliberative democrats. The first is how to make innovations influence the political system. It is possible that this remains the key issue in critical democratic

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theory. It is clear that democratic innovation may foster citizenship and participation. It is also clear that citizens learn a new conception of democracy and start to practise it, creating important new inputs to the political system. However, we cannot underestimate the difficulties posed by the political system to changes brought by democratic innovation. There have been examples of this difficulty to expand participation in Mexico, Brazil and Argentina. In Mexico, the short-lived experience of ciudadanización (citizenization – citizen involvement) was thwarted by the events following the 2006 presidential elections. The IFE was submitted to a control body whose link with Congress weakened the Institute. In the Brazilian case, Congress was completely hegemonized (dominated by conservative sectors) through an illegal process by which 19 companies financed more than 50 per cent of the campaigns (Mancuso, 2015). This new conservative majority posed itself against the expansion of social participation in Brazil through its proposal of Law Decree No. 8243, which created the National Policy on Social Participation (Zanandrez, 2016). In Argentina the Kirchners7 were able to control the government of the province of Buenos Aires and effectively shut down participatory budgeting in the city. Thus, the issue of how to renew practices through the strengthening of a bottom-up process of political innovation remains unanswered. On the one hand, institutional innovation remains the best bet on how to improve the quality of the political system (Morlino, 2012). On the other, it is very clear that innovation does not transmit itself automatically to the political system. I will go even further and point out that with the exception of token participation, most of the political system is closed to political innovation or accepts only token or symbolic aspects of important political innovations such as participatory budgeting and deliberative mini-publics. The second issue is the expansion of innovation. On the one hand, there is nothing wrong with Fung and Wright’s idea that successful innovation should be reproduced. However, two important limits should be kept in mind in the process of expanding innovation. The first is cultural and contextual, and I have written about it in earlier works (see, for example, Avritzer, 2009). I return in the book to this argument showing that councils, local assemblies and ciudadanización are all based on important local traditions that in certain cases go back to the colonial period (Forment, 2009; Lockhart and Schwartz, 1983; Van Cott, 2008).

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The second is related to different actions of the political system, because it is impossible to broadly expand innovation without a political actor willing to do so. I have in mind here the process of expansion of participatory budgeting in Brazil, which has been carried out mainly by the Workers’ Party (Partido dos Trabalhadores – PT) (Avritzer and Wampler, 2008) or the supra-party support for the LPP in Bolivia. It is important to remember that successful expansion is also possible, as experiences of participatory budgeting in Recife and Canoas, Brazil, show. Successful experiences of participatory budgeting have occurred outside Brazil as well, such as in Rosário, Argentina (Annunziata, 2011; Ford, 2007). Mexico also shows a second possibility, which is the expansion of the participatory or democratic accountability design to other areas of government, as the Access to Information Law (Ley Federal de Transparencia y Acceso a la Información Pública Gubernamenta) has done. Yet, the issue is how fully actors engage in democratizating democracy and carrying out distributive policies and there are more examples of political actors disengaging in the expansion of these designs than engaging, as I will show in Chapters 3 and 4. Even in successful cases of innovation we see different processes of reversal of implementation of participatory designs in Mexico, Brazil and Argentina. The IFE in Mexico is a good example in this regard. The IFE has been one of the stars of citizenship engagement and innovation during Mexico’s democratization (Aguayo, 1995; Avritzer, 2002). New monitoring practices emerged through citizenship participation and allowed clean elections in Mexico from 1996 on (Cantun, 2002; Hevia and Isunza, 2010). However, innovation success is often accompanied by problems. In the case of the IFE, a deal among the most important political parties in the aftermath of charges of election fraud allowed the disempowerment of citizenship at the IFE. There are similar cases in Brazil and Argentina. In Argentina, participatory budgeting in Buenos Aires has been involved in a network of empowerment and disempowerment that in the end led to its discontinuation (Rodgers, 2010). In Brazil, the disassembling of participatory budgeting experiences even under PT administration is very common. The political system is the key element in the expansion or contraction of democratic innovations. They move forward in the cases in which the political system engages in the expansion of innovation or at least does not block them, as has been the case in Sánchez de

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Table 1.1  The dynamics of participatory innovation Country

Type of New Democratic Institutions Created

Reasons for Successful Implementation

Actors Who Limited or Attacked New Institutions

Brazil

Participatory budgeting and policy councils

Support of the PT and civil society actors

Mexico

IFE and the IFAI

Support of civil society actors and acceptance by PRI actors after long process of negotiation

Participation received supraparty support until 2014 IFE received supra-party support until 2006; all parties contributed to the disempowerment of the IFE Kirchneristas tried to derail PB

Argentina Participatory budgeting Bolivia

Ley de Participación Popular and comités de vigilancia

Support of civil society and political actors in the case of Rosário Broad support of MAS politicized political actors comités de vigilância

Note:  IFE = Federal Electoral Insitute; IFAI = Federal Institute for Access to Public Information; PT = Workers’ Party; PRI = Institutional Revolutionary Party; PB = participatory budgeting; MAS = Movement for Socialism.

Losada’s8 support for the LPP or President Vicente Fox Quesada’s9 support for the Access to Information Law. However, the clearest case of support for participation is Brazil during the National Constituent Assembly. These are the successful cases that do not preclude important reversal because democratic innovation very often remains contentious within the political actors who have sponsored it in the first place. Table 1.1 summarizes the different paths of expansion and retraction of innovation. However, the most acute danger innovation faces is when corporations pick up the discourse of institutional or democratic innovation. This happened with the Ministério Público in Brazil. The effects of this reform have come in fits and starts. The 1988 Constitution

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established in Article 127 an independent Public Prosecutor’s Office, the Ministério Público. The idea of a Ministério Público was an innovation in relation to the previously existing institutional format in which the executive branch in Brazil controlled the Declaration of Unconstitutionality at the same time that there was a very low level of enforcement in relation to human rights and the environment (Avritzer and Marona, 2016). In addition to that, corruption has been rampant. The institutional design of the Ministério Público made it both a bureaucratic organization and an autonomous agency. As a bureaucratic organization, the Ministério Público draws on a strong principle of legality that it tries to impose on every organization or association it controls or audits (Oliveira et al., 2015). As an autonomous agency, the Ministério Público draws on a principle of complete autonomy that it justifies as leading to obeisance only to a citizenship principle. In Chapter 5 I will show how the Ministério Público became a very dangerous organization, with anti-democratic behaviour by its members drawing selectively on the principle of autonomy. Thus, an initial theoretical position on democratic innovation is clear. We understand innovation as the changes in design that support the expansion of citizenship or the integration of citizenship claims into the political system. There have been historically different waves of integration of political participation in the state. We are currently passing through a long wave of democratic innovation that poses real possibilities for the expansion and the improvement of the quality of democracy. This is not a first wave of innovation in world democracies. In the United States in the early twentieth century, innovation was linked to progressivism and the introduction of democratic mechanisms such as the referendum and the recall in the American West (Fischer, 2003; Pierson, 2004). This first wave of innovation came to a close after World War II. The current wave of democratic innovation is part of the third wave of democratization and in this regard it has one major change from previous waves; it has a global dimension and includes countries in the South, particularly the new Latin American democracies. It is the deliberative and participatory practices of these new democracies that this book will address. This book seeks to establish a double dialogue with deliberative democrats in their approach on the democratization of ­democracy (Cohen, 2010; Dryzek, 2006; Fung, 2007; Parkinson and Mansbridge,

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2012; B. Santos, 2002; Sintomer et al., 2008). It seeks a dialogue based on experiences that may further enlighten the theory through the incorporation of new experiences of participation. It seeks to throw light upon differences in design and to trigger a process of comparative analysis within this theoretical field. Second, the book also intends to show limits to the implementation of new designs linked to the specific interaction with the political system. Thus, the Latin American cases play the role of an additional case in the theory of democratic and participatory innovation because they bring forth experiences that bind the political system within democratic innovation more closely. At the same time, these new cases of innovation are also vulnerable, as I will show, to the derailment of innovation by the same political system. The book will try to present a balance of the new Latin American experiences in the hope of providing new insights into their mechanisms and on how they help or hinder democratic deepening, in the hope of making these experiences more widely known and singling out their contributions to democratic deepening in the region.

NOTES 1. It should be noted that Weber proposed the ‘charismatic leader’ as a solution to this problem. The charismatic leader, according to Mommsen, is an antinomy in Weberian thought. On the one hand, Weber understood democracy as generating the free and self-determined individual. On the other, Weber perceived democratic leadership as a variant of charismatic leadership, whereby the choice of a leader is legitimized only in form but not in substance (see Mommsen, 1989, p. 33; see also Breiner, 1996, p. 139). 2. Many people criticize Habermas in this regard, starting with his long-time interlocutor in the United States, Thomas McCarthy. For them, Habermas conceded too much to a traditional and systemic view on politics (McCarthy, 1981). Fischer (2009, p. 31) criticizes Habermas from the perspective of the double side of technological complexity. 3. It is worth pointing out that in an excellent review article published recently, Pateman (2012) heavily revised her framework proposed in Pateman (1970) and pointed towards a tension between participation and deliberation. 4. Some of these points emerged after a very enjoyable discussion with Graham Smith in London. I thank him for sharing his thoughts on mini-publics with me. 5. Simone Chambers (2006) has discussed this dilemma, albeit from a very different perspective. For her, deliberative democracy chose to substitute mass publics for mini-publics, opting for the quality of small public debate instead of mass democracy. 6. Baierle (1998) analysed local assemblies in terms of which actors have the most voice in the process. He showed that the use of voice was fairly distributed in

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participatory budgeting, with poor social actors making frequent use of the floor. 7. Cristina Fernández de Kirchner became the first female elected president of Argentina, 2007–15. She succeeded her husband, Néstor Kirchner, who had served as president from 2003 to 2007. 8. President of Bolivia 1993–97 and 2002–2003. 9. President of Mexico, 2000–06.

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2. A second source of innovation: Critical public policy INTRODUCTION Critical public policy is a second source of institutional innovation that has independent but parallel origins in relation to the critical theory debate. Critical public policy is also a reaction against important assumptions of the Weberian theoretical framework. The critique of the Weberian view on innovation comes from a different theoretical perspective, namely, through a critique of technicians and professionals’ capacity to handle social reality without the input of social actors.1 Max Weber defended the view that the bureaucracy and technical personnel have the ability to gather all the information needed for the elaboration of public policies. For Weber, the modern state resulted from the development of technology and incorporated technology in carrying out policies such as police protection or social welfare (Breiner, 1996, p. 136; Radkau, 2011). The bureaucracy introduced a top-down method of policy-making that, according to Weber, allowed it to gather all the information it needed for policy implementation (Weber, 1946, p. 196). This theory has hegemonized postwar political science and public administration. In the area of political science a theory of modernization connected Northern and Southern scholars and assumed that technical evolution at the economic and state levels was enough to rationalize societies (Apter, 1966; Parsons, 1951; Parsons and Platt, 1973). Thus, modernization updated the Weberian argument on top-down bureaucracies. The critique on how technicians handle social issues emerged in both political science and related area literatures during the 1980s. Lowy has shown how general or broader interests are completely captured in important technical projects implemented by the state (Lowy, 1969 [1989]). Urban industrial projects and policies incorporated biases related to the interest of large holders of urban land 31

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(Fernandes, 2007; Holston, 2008). In other areas such as public security, policing based on technical information often misses how criminality organizes itself (Fung, 2003). All those facts that took place repeatedly in both Northern and Southern democracies point in the direction that: [. . .]‘hidden hierarchies’ have. . .substituted their expert discourses for those of ordinary political talk about the pressing policy issues of the times. With each area of modern life under the control of disciplinary expertise – welfare, crime, family, environment, schools, and so on – there is little that the citizen would seem to be able to offer. To be sure, the citizen can still express his or her view but in a world dominated by a centralized state guided in large part by the views of administrative and policy experts. (Fischer, 2009, p. 55)

Both the North and the South reacted against this perspective but in different ways. In Northern democracies, these movements started in the United States during the late 1960s and led to the emergence of engaged professionals, spokespersons for the poor, medical doctors who joined picket lines and lawyers who got themselves arrested (Fischer, 2009, p. 22). The aim of these movements was to challenge the association made by the Weberian conception of politics between bureaucracy and knowledge. Contrary to the Weberian assumption, these professionals acted in a way through which knowledge and political action become immediately connected. New knowledge on health and the environment became important to politics. The presence of social and technical actors in different arenas led to a generalized perception that policy issues are by definition contested (Hajer and Wagenaar, 2003, p. 21). Interesting enough, a similar movement was taking place in Southern countries at the time of their democratization. Authoritarianism in Latin America involved the appropriation of technical expertise for its political projects. Authoritarianism led not only to the suspension of elections (Linz and Stepan, 1996; O’Donnell and Schmitter, 1986) but also to a technical project on the city, on the characteristics of urbanization and on the hygienization of the poor population (Escobar, 1995). This project involved urban reform, health policies, labour reform and a vision of economic policy (Avritzer, 2002). These ideas were challenged by a new group of technical personnel that emerged in Brazil, Colombia and Mexico by the end of their authoritarian regimes (Alvarez et al., 1998; Boschi, 1987; W.G. Santos, 1987).

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Economists, lawyers and urban professionals engaged in the struggle for democratization, and challenged the authoritarian regime’s plans for city, health and legality. In all these cases, new plans emerged and were part of the agenda of democratization. During the Constituent Assembly in Brazil, Colombia and Bolivia and during the reorganization of the Argentinian constitutional tradition, public policies became contested issues. The rise of a new group of technical personnel together with the emergence of new social actors in several arenas, such as health, social assistance, urban policy and the environment, created contention and contestation in the elaboration of public policies in Southern democracies. The presence of new actors in important constitution-making venues gave rise to new participatory and democratic designs. Constitutions in Brazil, Colombia and Bolivia introduced incentives to social participation and to both new participatory drives and old institutionalized ones. Democratic design involved introducing a participatory element between organizations, citizens and the state. The importance of innovation is that it allows the emergence of ‘institutions that have specifically been designed to increase and deepen citizen participation in the decision-making process’ (Smith, 2009, p. 1).2 Policies of income distribution, democratization of access to urban land, gender inclusion, racial integration and environmental policies require different designs. In this chapter I will analyse these designs.

INNOVATION AS DEMOCRATIC AND PARTICIPATORY DESIGNS Democratic innovation, as defined earlier, is the capacity of the state to process input by the citizenship in different ways or institutional formats. The different designs that deepen democracy are linked to processes of democratization. Democratization creates great expectations of how to better handle politics. This is a point that bridges old and new democracies – in particular, the United States and Latin America. I will start with participatory designs in the United States during the late nineteenth century, a period that democratized politics in America (Goebel, 2002). Progressivism placed the democratization of local politics through the introduction of innovations (Nugent, 2009) on the agenda of American

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democracy. I will show that there are important similarities between the concerns of American Progressives in the late nineteenth/early twentieth century and the political motives behind the innovation drive in Latin America during the past 20 years (Avritzer, 2012b). Both cases resulted in contentious democratic claims by the population, particularly at the local level. I will show in this chapter that local democratic claims led to the introduction of interfaces between government and society. These claims for democracy and inclusion take place mainly in the area of social policies. However, they vary according to public policy, and the designs that place organization, citizens and the state together also vary. In line with the work of Hevia and Isunza (2010, p. 64), I classify innovation into three types: mandatory, accountability-related and codeliberation interfaces. Mandatory interfaces emerged in the United States during the Progressive Era as a result of the claim of democratization of local politics. Accountability interfaces are part of politics both in the North and in the South and have the capacity to produce strong democratization effects. Last but not least, we have the codeliberation interfaces that characterize the Latin American processes of democratization. I will analyse each one and propose a typology of innovations and their democratizing effects at the end of the chapter.

MANDATORY INTERFACES OR THE DILEMMAS OF INNOVATION IN AMERICA Mandatory interfaces are those designs through which the state or the political system renounces its capacity to take decisions and transfers it to civil society or the population as a whole.3 Mandatory interfaces, perhaps the oldest innovation in democracy, include the referendum and the recall, which emerged on the West Coast of the United States in the early twentieth century.4 The democratization that took place in the United States during the Progressive Era assumed two main forms: democratic reform and administrative innovation. Democratic reform anticipated administrative innovation. Many new democratic institutions were proposed during the Progressive Era, including the referendum and recall (Persily, 1997, p. 11). The habit of state-wide consultation was already ingrained in the American West and most states proposed such legislation between 1898 and 1918. Although recall was also

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widely established in the American West, its spread was more limited than that of the referendum. A few characteristics of referendum and recall are worth calling attention to because they anticipated the conflict generated by democratic innovation that is faced by Latin American democracies today. The practice of direct democracy emerged in the United States in the same way that it emerged in Latin America during the late twentieth century. Social actors thought it blocked the political system from following the logic of special interests. The Progressives, in a fashion similar to Latin American reformers in the late twentieth century, had two main concerns: the first was to reform the local level (Rice, 1977). Corrupt practices and rigged elections prevailed everywhere but greatly impacted American cities. (The same holds true for Latin America after its democratization, 1983–90.) The second concern was longer lasting and influenced the whole debate on innovation, namely how to curb the relationship between private interests and politicians. Progressives’ initial answer to this issue was to propose new institutions (Nugent, 2009; Piven and Cloward, 1978). However, bureaucratic answers became more common with the emergence of a new form of rule within public administration, through the creation of agencies. A second important innovation that emerged in the American West but made its way to the East Coast was the institution of electoral primaries (Merrian, 1909 [2012]). Electoral primaries emerged in the Western United States much in the same way as other political innovations – as a result of the lack of rules in the nomination of candidates and the power of private brokers in determining party candidates (Lipset, 2003, p. 47). The first law on electoral primaries was enacted in California in 1866 with the very suggestive title ‘An Act to Protect the Elections of Voluntary Associations and to Punish Frauds Therein’ (Merrian, 1909 [2012], p. 9). The California law was revised in 1874 when additional requirements were inserted, namely the retaining of a voters list for 20 years and the incorporation of general law requirements into primary elections (ibid.). The California law was adopted by other states such as New York, Illinois, Kentucky, Massachusetts, Missouri and Ohio (Merrian, 1909 [2012], p. 25). Again, as with direct democracy, the United States adopted institutional innovations in the early stages of its democratic life. However, these democratic innovations were later substituted by administrative innovation in public policies.

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Together with the development of direct democracy, Progressives proposed an agenda in the area of public administration. This agenda, together with direct democracy in the state, included reforms of the civil service, a shortcut in elected positions and the creation of agencies (Persily, 1997, p. 22). Even during the nineteenth century, Progressive leaders such as Woodrow Wilson were concerned with public administration (Wilson, 1887). They perceived the public administration system to be very outdated and explained their views through the very strength of democracy: ‘The English race has long studied the art of curbing executive power to the constant neglect of the art of perfecting the executive method’ (Wilson, 1887, p. 7). Thus, a new civil service and a group of agencies were created, and agencies and administrative regulation were introduced in California at the beginning of the century. However, it was the New Deal of the 1930s that highlighted the issue of administrative regulation by agencies at the national level. Thus, the case of the United States during the early twentieth century is particularly instructive for analysing the positive aspects but also the limits of democratic innovations. Referendum, recall and primaries emerged with a clear aim: to place a limit on the particularisms of a political system already controlled by private financing. However, when we analyse closely the nature of the innovation, we see the barriers to a reconnection between citizens and the political system. Referendum and recall cannot determine the nature of public policies and they do not establish bottom-up forms of policy implementation. They seek to control power-holders, but the most they can do is remove power-holders. The same can be said about primaries. They seek to place a citizen’s input into the political system and they are successful in this regard (as we have seen, e.g., in the case of the 2016 primary elections in the United States). However, they cannot control policies. In this regard, the United States is the first country to introduce democratic and participatory innovations, and by analysing them we see that the major problems facing innovations are that they become routinized and are incorporated by the political system. They become adapted to a top model of policy-making and democratic decision-making. Is this a necessary development, or can it be changed by the new wave of innovations that is emerging in Latin America? This is one of the questions this book seeks to answer.

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A SECOND TYPE OF INNOVATION: ACCOUNTABILITY The second type of interface encompasses those that are linked to accountability and transparency (Hevia and Isunza, 2010, p. 64). Accountability is a very old Western European practice linked to bookkeeping that has recently been extended to the political field (Bovens et al., 2014). In a similar fashion, transparency is not a concept that originated in the political system; rather, it migrated from the market to government.5 Today, it is very much practised within government. Accountability is both a feature of democracy and a new innovation linked to an attempt to relate government directly with citizenship. Accountability in Latin America assumed the form of mechanisms for the enforcement of policy decisions independently from the electoral process. Councils in Brazil and Bolivia and ciudadanización (citizenization – citizen involvement) in Mexico performed this role, which in the region traces back to a very old pre-Colombian and/or colonial practice (Van Cott, 2008). The most important cases of innovation in accountability and transparency in Latin America are: policy councils in Brazil, comités de vigilancia in Bolivia and citizen councillors in Mexico. All the three cases share the same characteristics, namely, the attempt to create institutions that follow a citizenship logic and are partially disconnected from the electoral system and its cycle of change. In all three cases these institutions challenge a technical and bureaucratic logic of policy-making and produce efficiency in public policy through social participation. Policy councils in Brazil are the result of a constitution-making process that accepted participation and accountability and gave social actors an important role in the implementation of health and social assistance policies. The proliferation of health and social assistance councils in Brazil during the last two decades greatly improved the quality of these policies at the local level, particularly in cities with more than 100 000 inhabitants. In all successful cases technical knowledge was democratized and efficiency was produced through the participatory control of power-holders. The Federal Electoral Institute (Instituto Federal Electoral – IFE) was the response to the massive frauds that marked the Institutional Revolutionary Party (Partido Revolucionario Institucional – PRI) regime during the 1980s and led civil society actors to establish

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­ arallel monitoring bodies after the creation of the NGO Alianza p Cívica (Aguayo, 1995; Olvera, 2010). After electoral fraud was confirmed in several Mexican states in the early 1990s, the IFE was created by the 1990 electoral law as a federation of government representatives, political parties and citizens’ representatives. IFE was a success in terms of transparency and accountability produced by a system of citizen participation (Avritzer, 2002). However, as Mexico democratized, the autonomy of citizens’ councillors was replaced by a capture of the now National Electoral Institute (Instituto Nacional Electoral – INE) by the political parties. Comités de vigilancia in Bolivia are a consequence of the implementation of the Ley de Participación Popular (Popular Participation Law). The law decentralized local government in Bolivia and transferred 20 per cent of the federal budget to more than 300 municipalities where comités de vigilancia have been active in the control of health and education policies. Comités de vigilancia performed the role of accountability and have allowed health and education policies to become more efficient than in the phase of top-down technical implementation from the centre. Thus, the three examples of accountability designs we see in Latin America are perhaps the best examples of successful innovation in areas of public policy. They are related to the act of making public policy independent from electoral decisions and transformed into a state policy. In Chapter 4 I will call this interface participatory accountability. I will show that it is capable of making an important difference in policy implementation because they connect a participatory design with bottom-up and horizontal policy design. In a similar fashion to the classical American case during the early twentieth century, this second format of innovation and resultant dilemmas have appeared in Latin America during the second half of the twentieth century. Participatory accountability is the result of demands of Mexican, Bolivian and Brazilian civil society and social actors during the struggle to put an end to the authoritarian regimes in the countries. However, as democratization went on in the three countries these new forms of participatory accountability became contentious. The political system as a whole has had different attitudes in relation to innovation. In Mexico, democratization proved to be a very conservative form of political normalization with the survival of the PRI and its later return to power and the IFE faced important challenges that committed its independence. In

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Brazil, councils survived a much longer period being able to make a difference for a long period of time. However, since 2014 all forms of participation are being contested by the political system. Bolivia seems to be the most successful case so far in spite of the fact that the Movement for Socialism (Movimiento al Socialismo – MAS) and the political system also challenge the independence of accountability institutions. I will show in Chapter 4 that the capacity of accountability institutions to democratize government through innovation also faces limits within the political system.

A THIRD TYPE OF INNOVATION: CO-DELIBERATION The third type of interface discussed by Hevia and Isunza is referred to as interfaz de cogestión, which I translate as ‘co-deliberation interface’. The co-deliberation interface is the most recent but also the most discussed. Unlike the previous innovations that grew from political crises in the United States in the early twentieth century, co-deliberation interfaces originated in the deepening processes of late democracies such as Brazil. These interfaces differ from the others in that they involve the sharing of deliberation between civil society and government, rather than the substitution of government by civil society inputs as in the direct democracy tradition. Moreover, co-deliberation interfaces are bottom-up structures: they involve the organization of assemblies or councils at the local level, which interact with the state. Decisions are taken through joint mechanisms. Participatory budgeting in Brazil and Argentina are the best examples of such mechanisms. Participatory budgeting (PB) emerged in Porto Alegre, Brazil, in 1990 as the result of structural characteristics present only in Rio Grande do Sul, and a space for innovation opened by the 1988 Constitution. PB changed the process of budget-making in Brazil (Abers, 2000; Avritzer, 2009; Baiocchi, 2005; Nylen, 2002; Wampler, 2015). In its most important application, in Porto Alegre (1990– 2003), PB introduced new types of institutions, three of which involve deliberation: regional and thematic assemblies, the Participatory Budgeting Council (Conselho do Orçamento Participativo – COP), and the establishment of the rules for the decision-making process itself. Each of these created a new type of interface between the state

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and civil society. However, what is the most important characteristic of all these deliberations is that they are integrated with policy decision in urban politics. Social actors with previous affiliations with urban associations are the ones who participate in these assemblies. In this sense, this deliberative institution is an attempt to combine collective action logic with democratic innovation in one specific area of social policy. Thus, PB is clearly an institution that challenges technical control over urban decisions and democratizes the debates on the budget. To understand it better, it is necessary to understand the emergence of the democratic innovation in Brazil. PB is the result of the Brazilian process of democratization and in particular the impact of this in the region of the country that developed the most democratic tradition. It took advantage of the new legislation that emerged in the constitution-making process as well as of the productive overlapping of a tradition of democratic associations in the South with a specific proposal for participation that emerged within the Workers’ Party (Partido dos Trabalhadores – PT). PB is a local innovation that responded to the drive to overcome the prevalence of private interests in urban policy. Both social actors (namely, poor urban dwellers) and political actors (the local branch of the PT that supported the initiative) participated in the process. This case was successful because of the positive convergence of actors, social and political, in the elaboration of a bottom-up process of policy-making. Success, as I will show in Chapter 3, reflects both democratic deepening (Fung and Wright, 2003) and distributive capacity (Avritzer, 2009). Both of them together constitute a challenge to a bureaucratic and technical conception of budget elaboration. However, questions of the conditions for replicability of the policy need to be answered and may also function as limits to its expansion and policy replicability.

THE REPLICABILITY, THE EXPANSION AND THE POLITICAL IMPLICATIONS OF INNOVATIONS Replicability and expansion of democratic innovations, at the level of both accountability and participation, are themes seldom addressed by political scientists. Some political scientists are not concerned

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with participation and are only concerned with how institutional design fosters administrative efficiency (Ostrom, 2005). Other political scientists are mainly concerned about innovation and seldom address the issue of the limits of innovation (Pogrebinschi, 2017). I would like to place my approach between the two. Innovation has been a key aspect of democracy and democratization since the late nineteenth century in the United States. Innovation was renewed as a key concern of democracy after the Latin American countries democratized. However, replicability has problems that need to be solved. PB is the institution that has been replicated most often. PB was expanded to 103 cities in Brazil in the year 2000 and to 201 cities by 2008 primarily because of its national and international success. In addition to that, PB has been expanded to Europe and the United States. What I will try to show in relation to PB is that it can be expanded in certain contexts but expansion does not mean democratic deepening or the success in the implementation of urban social policies that has characterized the well-known experiences. The difference between expansion, democratic deepening and success lies in the practices that are forwarded by the innovation. PB was expanded to many cities of Latin America, Europe and the United States. In Argentina we find a successful case of expansion, a case in which a sharp political crisis of legitimation justified the introduction of PB. PB is successful in Rosário because the actors, social and political, agreed on its implementation as a way of strengthening a new role for citizens in the city (Annunziata, 2011; Ford, 2007). In the successful case the change in a technical conception of top-down policy implementation is carried out. Other cities in Europe and the United States qualify more as a way of making propaganda on participation (Allegretti, 2014). Mayors of important cities such as New York agreed to implement PB as a secondary mechanism for making budget decisions. In most of these cases PB is implemented through a top-down process and has very few democratizing effects in policy-making. The discussion I will pursue in Chapter 3 is this: to what extent is it good to have the most radical democratic innovation implementation in disempowered contexts? I will discuss the Buenos Aires and Rosário cases and also other cases in Latin America and compare them. My point is the following: we should differentiate forms of

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innovation that deepen democracy and reverse the logic of top-down policy implementation from those that reproduce the innovation in a routinized way. In one case innovation plays the role of expanding citizens’ control over policy with very positive results. In the other cases, innovation is stripped from its democratizing effect. I will try in Chapter 3 to further differentiate these cases showing the different role the political system plays in each one of them.

A FOURTH TYPE OF INNOVATION? LEGAL AND ADMINISTRATIVE INSTITUTIONS The fourth form of innovation is administrative/judicial. Administra­­ tive innovation can potentially function as an interface between the state and civil society. Unlike the types of innovation defined earlier, administrative innovation is centred on the de-politicization of public administration. Woodrow Wilson used to say that public administration is the executive branch acting in a way that can deepen its efficiency (Wilson, 1887). One of the main issues of administrative innovation was the creation of the agency system that Wilson anticipated but was put in place more broadly by Franklin Delano Roosevelt. It stripped Congress of some of its prerogatives and created a permanent congressional delegation to the executive branch (White, 1992). In this form, innovation leads to ­ de-politicization and becomes an administrative category. There is no problem with administrative innovation but there is a problem when administrative innovation is justified in terms of democratic deepening. The Ministério Público (Public Prosecutor’s Office) in Brazil is a good example of this type of innovation. The 1988 Constitution created an autonomous power, the Ministério Público, an independent oversight agency in charge of controlling government and defending ‘diffuse rights’ (Arantes, 2002). The Ministério Público is an institutional innovation of the Brazilian constitution-making process that separated the defence of the executive branch of government from the defence of diffuse rights and legality. The Ministério Público is not bound by the judiciary or the legislative branch in its actions and has broad prerogatives to fight corruption and defend the environment and indigenous rights. The Ministério Público is free to take action when there is any evidence of corruption, asking the government to halt public bidding when there is suspicion of

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overpricing and kickbacks. It is also allowed to initiate action against the federal government at the level of the Supreme Court. In this way, within Brazilian democracy, a transformation of impartial authorities from passive to active institutions took place (Rosanvallon, 2011, pp. 87–8). Thus, civil society actors, together with the Ministério Público, are freely able to establish an informal oversight institution that brings accountability to a different level; they form a multi-level coalition in which actions at the civil society level are coordinated with actions at the judicial level. However, in the drive to enforce the law Brazilian constitution-makers did not create any external control for Ministério Público itself. This allowed for abuses against the rule of law. This legal format – as events in Brazil from 2014 to 2016 showed – may be very dangerous. It may be dangerous because it assumes that professional corporation and civil society actors can act in similar ways. As the Brazilian experience shows, these entities may be able to cooperate for only a short amount of time. Professional corporations, particularly legal corporations, involve specific characteristics such as their competitive role in the structure of power division and the organization of power monopoly (Bourdieu, 1986). In addition to that, there is a high risk of politicization of professional categories, particularly in Latin America given their previous history of collaboration with authoritarianism (e.g., in the case of Argentina and Brazil). Last but not least, innovation in the case of the judicial system may lead to disregard for rules without which the very concept of the rule of law may be compromised. Thus, innovation in case of judicial or legal corporations may lead to risk to democracy itself, as I will show in Chapter 5 where I analyse the introduction of the plea bargain into Brazil’s penal law.

CONCLUSION: PARTICIPATORY INNOVATION – BETWEEN DEMOCRATIC DEEPENING AND POLITICAL INSULATION Democratic or participatory innovation is the best bet so far to democratize institutions in key areas of social policy. However, because of the large variation in design and the sharp expansion of innovation across continents, from South America to Europe and the United States, it is important to make additional conceptual

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Table 2.1  Types of innovation and conditions for their success Type of Innovation

Role of Actors in the Implementation of Innovation

Capacity to Deepen Democracies

Elements Needed for Successful Expansion

Role of civil society actors and political actors (PT and PS) in Argentina Councils in Role of civil Brazil, Mexico society actors and and Bolivia political actors (PT)

Large when the political system supports the innovation

Willingness of political actors to transfer budgeting prerogatives

The largest among the recent forms of innovation

Innovation in judicial institutions

Small given the corporatist elements

Institutional design capable of guaranteeing democratic accountability Expansion may constitute a danger to democratic institutions

Participatory budgeting

Corporations of professionals claiming civil society representation

Note:  PT = Partido dos Trabalhadores: Workers’ Party; PS = Partido Socialista: Socialist Party.

and empirical efforts to better qualify innovation. In this book I will approach different innovations according to three criteria: relation with social actors, relation with the political system and capacity to deepen democracy and elements necessary to be expanded successfully, as Table 2.1 shows. I will show in Chapters 3 and 4 the cases in which each of these successful innovations was expanded and will try to evaluate success and failure in different areas of social policy. In Chapter 5, I will  point out the greatest mistake in the literature, which is the attempt to make equivalent democratic innovation and innovation in judicial institutions. In the book conclusion, I will deal with how to solve  the long-term problem for democratic innovation, which is the lack of will of the political systems, North and South, to incorporate ­innovation that would deepen democracy and give voice to citizens.

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NOTES 1. Fischer locates this critique much earlier than the 1980s and traces it to the work of John Dewey. Dewey wanted social scientists and educators not only to contribute information to the decision-making process but also ‘to facilitate democratic deliberation and public learning’ (Fischer, 2009, p. 28). I prefer to locate it in the 1980s because in spite of the important advance of Dewey’s ideas, the conception that consolidated itself in the United States before the 1980s was a conception of offering technical expertise to those employed by administrative agencies. This is what many social scientists called ‘government by the professionals’ (Alexander, 1983; Parsons, 1951), a point also made by Parsons (1951) in a process that he calls the ‘emergence of the activist professional’. 2. In his later work, Habermas (1994) proposed a definition that resembles the idea of interfaces between civil society and the state but does not go quite so far. Instead, he described a system of communication between the two. In this system, which is similar to water communication flows, there is a mix between civil society and the state in terms of elites and practices. What Habermas does not incorporate in his model is joint action between civil society and the state, which Hevia and Isunza (2010) call ‘co-deliberation’. 3. Here, I am making important changes to Hevia and Isunza’s (2010) formulation, which defined mandatory interfaces as situations in which civil society determines state practices. 4. However, it is important to point out that Illinois, Florida, Louisiana and Wisconsin adopted the referendum or the recall much later (see Persily, 1997). None of these states followed the national trend. 5. Fung et al. (2007) described the market origins of transparency. For the authors, the demand for transparency originated in the presence of imperfect information in the marketplace. However, new information alters the behaviour of market actors and consumers. Transparency may eventually become a public good in situations in which ‘its consumption is non-rival, meaning that new information can be consumed by one party without diminishing its value to another party’ (Fung et al., 2007, p. 31).

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3. Participatory budgeting as a democratic innovation: Origins, expansion and limits INTRODUCTION Participatory budgeting (PB) is the most important democratic innovation that emerged in the developing world during the third wave of democratization.1 The significance of PB, as a powerful institutional mechanism, can be seen in recent scholarship and the mechanism has been increasingly used by states to provoke democratic deepening. PB has gained notable attention in the Anglo-Saxon academy. In particular, the case of PB in Porto Alegre has been the topic of discussion for many scholars and the body of literature surrounding PB has become significant (Abers, 2000; Allegretti and Herzberg, 2004; Avritzer, 2002, 2009; Bacqué and Sintomer, 2005; Baiocchi, 2005; Geissel and Newton, 2012; Montambeault, 2016; Pateman, 2012; B. Santos, 1998, 2002; Talpin, 2012; Wampler, 2007, 2015). PB has informed new models of participatory democracy (Fung and Wright, 2003) in Europe and the United States, and even appeared in the development toolkits of international institutions such as the World Bank (Goldfrank, 2012), thus demonstrating its global significance. PB, both as a democratic practice and as a political mark, has expanded beyond its original settings, namely, Porto Alegre and Belo Horizonte. Other cities in Brazil, and elsewhere in South America, have implemented PB, with many successful cases (Annunziata, 2011; Avritzer and Wampler, 2008; Ford, 2010; Rodgers, 2010). Even beyond South America, PB has been encouraged in Europe, the United States and China, proving that the design and operation of PB is transferable and not dependent upon culture or political system type. The expansion of PB as a democratic innovation requires conceptual and political clarity. On the one hand, we see the transformation of PB into a key experience for the rehabilitation of 46

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participatory democracy (Avritzer, 2002; Baiocchi et al., 2011; Fung and Wright, 2003; Pateman, 2012). And, on the other, we see PB as an opportunity grasped by non-governmental organizations (NGOs) and international institutions to engage in governance projects, which tend to involve very few elements of participatory democracy and, instead, more closely resemble experiences of a centralized government with token participation (Cabannes, 2004; Dias, 2013; Wampler, 2016). Very frequently, one aspect is taken for the other without any serious conceptual discussion. This chapter will begin with a conceptual discussion – what are the characteristics of the innovations introduced by PB? Moving on from there, this chapter will look at several specific cases in order to contextualize our definition of PB and improve our understanding of this institutional mechanism. The core motivation behind the design of PB is to bring citizens into the organization of government in order to make it more democratic (see Chapter 1). The three distinct ways that PB does this are: (1) budget-making, (2) deliberative institutions and (3) citizen education. Budget-making PB, as it emerged in Porto Alegre, went far beyond an old left tradition oriented by the issue of social protection (Anderson, 1990). The welfare state, either narrowly or broadly conceived, failed to produce new institutions or new forms of deliberation. If we take the narrow approach, the welfare state involves income transfers and social services. If we take the broader approach, the state plays a part in the management of the economy (Berger, 1996; Esping-Andersen, 1990; Hall, 1986). In this sense, the welfare state involves the continuation of a long tradition of technically managing the government after winning elections (Rosanvallon, 2011, 2015). The idea that management itself should be transferred to the population or that key decisions on budgeting could be democratized was a completely new concept with regard to the left tradition established leading up to the late 1980s. PB offers an alternative approach to social protection, or an alternative way to link democratic participation and social justice. A social protection view of distributive policies involves the idea of top-down agencies in charge of distribution resources and, in many instances, control over the population (Dreyfus and Rabinow, 1983;

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Foucault, 1977; Skocpol, 1992; Tratner, 1994), whereas PB fosters autonomy in the decision-making process (Montambeault, 2016). PB challenged both technical control and ‘disciplinarization’  – elements of the welfare state tradition that received important criticisms (Foucault, 1977; Skocpol, 1992). PB relinquished budget decisions from the mayor’s office and gave power to popular assemblies. This process started with the relinquishing of 100 per cent investment funds into PB in Porto Alegre, an amount equivalent to 5 per cent to 7 per cent of the total budget. Although the amount is significant, it is not the only contributing factor to PB innovation. The idea of social actors dealing with the budget challenged a century-old blockade to sharing budget information. In addition, transferring budget allocation to social actors challenged the divide between those with and those without technical knowledge. In the end, the idea that budget information was highly technical proved to be false. The population had control of the right information or could understand it once the information was presented in a political way. Thus, my first point, which I will come back to at the end of the chapter, is that the transference of budgeting prerogatives and the relevance of the amount assigned to PB are of importance for understanding the growth of PB as a powerful institutional innovation. Deliberative Institutions The second important point to make is that PB sparked deliberation in regional assemblies and encouraged a connection between regional government and the decision-making process at the city level. PB institutionalized the regional assemblies and the gathering of communities at the local level, creating an entry point to governance for mass participation (Avritzer, 2002, pp. 93–4). Local assemblies are a point of open entry for community members, encouraging participation whilst simultaneously maintaining an institutional dimension. Local assemblies are institutional because they are managed, and overseen, by elected officials. For example, in the case of Porto Alegre, it was the mayor who took the initiative of proposing the implementation of PB (Baiocchi, 2005, p. 56). Local assemblies are a key element of PB in both Brazil and Argentina, where asambleas barriales (neighbourhood assemblies) were incorporated into PB. In a broader sense, success of the programme is

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related to the number of participants that are able to engage and represent the interests of the mass population, although quality may also play a role.2 An additional characteristic of PB is that it not only enables deliberations at the local level but also conveys decisions to the city-level administration. This is a particularly important characteristic to note, for two reasons: (1) institutionalization is key in being able to transmit the results of deliberation to the political system; and (2) assemblies play an important role in identifying a deliberative device that can be an open access institution. This corroboration between different levels facilitates scaling-up efforts. At each governance level, decisions are confirmed or revised in a deliberative way before they are finally taken to the PB council. This process of scaling up connects the participatory and deliberative sides of the system. It is significantly more deliberative than the talk-based politics of a deliberative system (Manbridge and Parkinson, 2012) because it has institutional connectors (Mendonça and Elstub, 2016). In addition, the process is very thorough because results are partial and are reargued at each of these levels. Deliberation therefore consists of a process of specific problem-solving for public policies and the reconsideration of decisions at each of the higher political levels. Citizen Education Another important characteristic of PB is its ability to generate political learning (Fung and Wright, 2003; Putnam et al., 1993; Verba et al., 1995). Political learning is still a concept that lacks precision. Almond and Coleman introduced the concept of political learning in regard to experiences of totalitarianism. For them: [. . .]learning in general does not terminate at the point of maturation, however it is defined in different societies. It is continuous through life. . . In a sense, the socialization experiences of childhood and early a­ dulthood – family, church, school, work group and voluntary ­ associations – are pre-political citizenship experiences. The individual is introduced into a sequence of decision-making systems with a particular authority and participation pattern. (Almond and Coleman, 1960, p. 27)

This was the beginning of a theory of political learning through socialization that required further empirical grounding. Verba et al. (1995), Ingelhart (1997) and Putnam et al. (1993) have provided the

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empirical corroboration of the theory by pointing out that participation in voluntary associations generates a more civic culture. PB connected participation in regional assemblies, a practice introduced by voluntary associations in Brazil during democratization, with the institutionalization of participation. This connection created a different form of political learning. Learning in PB is experimental. It is experimental in the pragmatic sense of the word (Dewey, 1927; Fung, 2007). Once social actors engage in PB, they develop new conceptions of participation and democracy that the success of PB enhances. Thus, participation in voluntary associations increases and deepens the understanding and practice of democratic values. In the next section I will deal with these specific characteristics as I analyse PB. In the following section, I will deal with the expansion and diffusion of PB, showing how – and when – some of these characteristics were maintained and some were lost. The final section concludes.

PARTICIPATORY BUDGETING IN PORTO ALEGRE AND BELO HORIZONTE: UNDERSTANDING THE PROCESS OF INNOVATION PB, a process of public deliberation on the allocation of budget resources, was first introduced by the Workers’ Party (Partido dos Trabalhadores –  PT) in Porto Alegre in 1990 and in Belo Horizonte in 1993. PB is a political innovation that altered administrative and political practices in order to better integrate citizens into the budget decision-making process. By integrating citizens into decision-­making processes, PB deepens democracy. Another specific area of PB that is important to highlight is how PB facilitates the distribution of public goods. Public goods have a history of being very unevenly distributed in Brazilian cities due to the country’s authoritarian legacy. Improving the distribution of public goods through participation helps combat inequality and deepen democracy. For example, when Porto Alegre introduced PB, the city experienced a break in the pattern of territorial exclusion of the poor instituted in the city by the authoritarian regime.

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Participatory Budgeting in Porto Alegre PB in Porto Alegre involved the adaptation of the budget cycle to a cycle of regional assemblies: one round of intermediary meetings and the year-round operation of a councillors’ body called the PB council. The cycle begins every year in April, when the first round of district assemblies takes place. In this first stage, community members can attend an assembly in their local regions. The mayor attends every first-round regional assembly, and the session begins with a description of the administrative implementation of the previous year’s budgeting endeavours. The floor is then open for about an hour, during which time citizens can express their thoughts about what has been taking place, voice possible disagreements with the administration and suggest what should be done throughout the region in the coming year. Participation in these meetings is crucial because it forms the foundation for the rest of the participatory process, which spans different levels in the political system. Participation in these meetings is on a voluntary basis, but individuals throughout the registration process are required to demonstrate membership in voluntary associations. A key innovation introduced by PB is to bring the population of a large city to a neighbourhood assembly to discuss the budget. This innovation does not contradict democratic theorists, who wrote that participation is possible and desirable at the very local level (Dahl, 1971, 1980; Pateman, 1970). However, PB does present a challenge in terms of the politicization that the process invokes: policy action that is implemented is attached to the participant or the assembly that brought forward the idea. PB creates an opportunity for anyone to participate, which opens the floodgates of diversity of thoughts, concerns and suggestions. Regardless of who attends an assembly and how a participant chooses to engage, there will inevitably be a challenge of common wisdom in democratic theory. PB is a format that specifically facilitates the engagement of two kinds of actors – poor social actors and actors with a conception of democratic ­deepening3  – that enables the process of budget-making. PB pioneered the first political innovation that places the poor, urban actor at the centre of the political process. PB binds institutional participation with a regular practice at the grassroots level, which consequently triggers a process of democratization at the local state level.

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The second stage of PB is the intermediary meetings, which have two purposes: (1) ranking thematic public priorities; and (2) deliberating which public works the region will execute. Ranking is a process that prioritizes public work needs. For example, the meeting attendees will consider the region’s roads, sewage, legalization of urban property, organization of the city, housing, education, health and social assistance, transportation and circulation, leisure, sports, economic development and culture. Prior to this ranking process, the public administration will have evaluated the population’s previous access to public goods and the classification of each of the city’s regions according to its population. Three criteria are used to rank these needs. The first criterion classifies previous access (and therefore present need). A table for classifying priorities assigns grades in inverse relation to previous access to a particular public good. According to the 1999 criteria, previous access to a public good of up to 80 per cent leads to grade 1; up to 60 per cent previous access, grade 2; and up to 20 per cent, grade 5. The second criterion captures the population of the region, and the third criterion outlines the community’s own ranking of its priorities, again on a scale of 1 to 5. At the end of this process, a region can amass a maximum of 15 points if it previously had less than 20 per cent access to a public good, chooses that same good as a top priority, and has more than 120 000 inhabitants. Again, PB innovated in terms of democratic theory as it proposed to hierarchize the access to public goods. Many democratic theorists assume that a hierarchical structure is one of the key elements of citizens’ actions in a democracy – there is a process, and the different levels of authority in the hierarchy act as filters (Downs, 1957; Przeworski, 1992). PB introduced participation in a different way: rather than being a process that navigates a technical hierarchy, PB is a collective process where the mass public has the opportunity to act, the hierarchical structure has been flattened and the policy process shortened. The Participatory Budgeting Council The PB council was inaugurated each July, from 1990 to 2005. The council created a budget proposal based on the rankings and decisions that the intermediary meetings yielded. The PB council then revised and finalized the budget proposal. The Gabinete de

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Planejamento (Planning Office – GAPLAN) and the mayor’s cabinet then elaborated upon the final proposal. By September, a final budget proposal was in place. The council also monitored the implementation of the final proposal by city administrative agencies throughout the remainder of the year. The PB council challenged two central concepts of the democratic theory. First, it challenged the concept that local participation influences local politics, and local politics alone. PB councils demonstrated that scaled up, aggregated participation can be achieved and be successful. By scaling up participation PB broke with this paradigm showing that there are aggregative methods in processes of participation. Second, the PB council challenged the concept that participation could not be intertwined with representation. The PB council is a representative institution in which representatives of participatory assemblies gather together. PB in Porto Alegre was highly successful for 15 years and continued to exist until the city created a programme called Local Solidarity Governance (Governança Solidária Local) in 2006. The PB council’s derailment also lends proof to the argument that ending PB was politically motivated and only took place because of the electoral defeat of the PT in Porto Alegre. However, the most significant observation to make is that, although PB was discontinued, the fact that a substitute programme was created shows how important participatory institutions had become at the level of grassroots citizens. It also shows that its derailment was politically motivated and only took place because of the electoral defeat. The fact that participatory institutions continue to exist in another format, and entry points for social engagement are being protected, is a measure of success for Brazil. Success in Porto Alegre needs to be differentiated from success in other cities that had greater longevity (Wampler, 2015). Success in Porto Alegre as the initial case was strong, and successfully communicated the three dimensions previously discussed: (1) budgeting can be democratized; (2) democratic solutions to city problems, or even to political problems, that emerged during the PB process were better than technocratic solutions; and (3) success requires political learning. Porto Alegre’s success with PB redefined how the mass population could interact and engage with government, and the successes of PB inspired the diffusion of the experience across Brazil.

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Participatory Budgeting in Belo Horizonte PB has been in practice in Belo Horizonte since 1993. It still exists as this book is going to press. PB in Belo Horizonte involves three rounds of regional assemblies, which then leads to a regional forum of priorities. The first round of regional assemblies is similar to its counterpart in Porto Alegre, only more argumentative and less deliberative. The administration opens each assembly with a statement on what was decided in the previous year, and an account is given of the current state of budget implementation. Belo Horizonte’s main role in the consolidation of PB was to show that PB as an innovation is flexible and adaptable. Belo Horizonte has less of a participatory tradition than Porto Alegre (Avritzer, 2009; Wampler, 2015). The case of PB in Belo Horizonte shows that PB can be introduced in average cities in need of participation to improve the access of the poor to public goods. Last but not least, the Belo Horizonte case shows that new institutional innovations can be added to the initial format as long as the practice continues to contribute to the deliberative process. Priority Caravans Caravanas das prioridades (priority caravans) was the first institutional innovation that strengthened the deliberative process. Priority caravans occur when members of the subregions discuss different budget proposals among themselves. Each community that proposes a public work to be included in the city budget visits other communities in order to evaluate their level of need. Consequently, different communities start to support one another’s claims, forming coalitions, which will be decisive in the deliberative process.

EVALUATING THE PROCESS OF INSTITUTIONAL INNOVATION WITHIN PARTICIPATORY BUDGETING There is a general consensus in Brazil that PB works better than the traditional methods of budget formatting. Yet, there is no consensus on why PB works better and how PB’s main features were initially introduced. Some analysts attribute the success of PB to the original

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participatory proposal introduced by the PT, a position that has to be disqualified, because at a later date the PT distanced itself from PB (Avritzer, 2016a). Others consider PB to be a product of many ingredients, tracing the development of PB to the actions of social movements (Baierle, 1998). In this section, I analyse the origins of the PB and the reasons for PB’s diffusion. The Origins of Participatory Budgeting The centrality of budget-making for the distribution of public goods began with The Federation of Neighbourhood Associations (União das Assoçiações de Moradores de Porto Alegre – UAMPA) in Porto Alegre in the late 1980s. Neighbourhood movements had been strong in Porto Alegre since the beginning of democratization (Baierle, 1998). During the first popularly elected administration in Porto Alegre, led by the left-populist PT, members of neighbourhood associations demanded the right to monitor the activities of the local administration. In a 1986 meeting, which was called to discuss the participatory policies proposed by the Collares administration, UAMPA’s deliberative council issued a document on popular participation in the city. This statement addressed three main points: (1) the identification of participation with ‘control of the definition of the city budget’; (2) the identification of budget-making with the discussion of investment priorities in each neighbourhood; and (3) the control and monitoring of budget implementation (UAMPA, 1986). UAMPA was not the only institution addressing participation demands in Brazil. Urban social movements and neighbourhood movements existed in several capitals of the Brazilian south and southeast and played a key role in the expansion of participation. It is also possible to observe these elements in action in many other countries, for example, the asambleas barriales in Argentina. The PT was part of a movement advocating for the organizational autonomy of labour from the state. Simultaneously, the PT advocated an idea of participatory democracy that was more inspired by the Marxist conception of labour councils than by the trajectory of social movements in Brazil.4 The PT’s proposed participatory programme was a defence of local councils, which would generate city councils and furnish a worker-based form of parallel administration (Abers, 2000). The party had its first important victories in the local elections of 1988, when the PT had mayors elected in São Paulo and

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Porto Alegre, among other cities. The positive impact of a political party’s support for PB can also be seen in Uruguay’s Frente Amplio (Broad Front) and Argentina’s Socialist Party. During the first two years of the PT’s leadership in Porto Alegre, the administration made many influential decisions regarding the operation of PB. From its inauguration, the Olívio Dutra administration tried to increase participation at large. In the first year, most of the secretariats introduced some participatory elements to their health, education and planning proposals. Simultaneously, in its first 30 days, the Olívio Dutra administration made the crucial decision to reform the Coordinação de Relações Comunitárias (Coordination of Relations with the Community – CRC), the community relations department responsible for centralizing all of the community’s claims. The CRC thus became central to the PB process. Although it had existed prior to 1989 (Lima et al., 2005), the CRC’s role had been to provide city associations with tax exemption certificates (atestado de utilidade pública). Components that impacted the growth of PB during this time were: (1) the concern of urban social movements with budgetary control and with direct participation at the local level; (2) the emphasis that the PT placed on participation and councils; and (3) the decentralized initiative of several secretariats, including the Planning Secretariat, to encourage popular participation and the idea, which emerged in the first 30 days, to centralize participation in the CRC. The last component was governance ­ design. Table 3.1 summarizes the initiatives that led to the introduction of the elements of PB. The PB’s institutional design allows it to cope with administrative problems within the specific political culture of urban Brazil – a culture divided between clientelist and non-clientelist actors, hybrid and deliberative elements. Abers (2000) showed how the Extremo Sul neighbourhood in Porto Alegre, which was dominated by clientelist politicians, was able to move to more autonomous ways of claiming public goods via PB. A large number of cases of PB in Belo Horizonte, Recife and Fortaleza demonstrate the impact PB has upon citizenship that Abers highlighted a few decades ago (Avritzer, 2009; Montambeault, 2016). The examples in both Porto Alegre and Belo Horizonte show how institutions designed for public deliberation can have a positive impact in regions suffering from deliberative inequalities. In Porto Alegre, inequality stemmed from the existence of clientelism in the

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Table 3.1  Overlapping elements for participatory budgeting success

Porto Alegre

Belo Horizonte

Urban Social Movement

Political Party

Design as a Form of Participatory Governance

Local assemblies and control of the population on budget decisions Local assemblies and control of the population on budget decisions

Left political party that engages with a participatory tradition Based on delegates electing new delegates

A design for participation and transparency having a council at its centre A design for participation and transparency that makes assembly decisions enforceable

neighbourhood and, in Belo Horizonte, it was the result of poor organizational skills. In both cases, a participatory institution led the population to move from a situation of deliberative inequality to one where everyone was an equal member of a deliberative process. PB thus helped to overcome two traditional mechanisms: hierarchical relations derived from the favour culture and the practice of claiming goods through mediators. Both mechanisms were replaced by associational interaction and free expression. It expresses the impact of participatory innovation on the political culture. PB in Belo Horizonte mirrors some of the features of PB in Porto Alegre, whilst other features remain specific to each location. PB in Belo Horizonte maintains two rounds of regional assemblies – one of the key characteristics for scaling up. Assemblies take place in the neighbourhoods and are an open-entry forum. Delegates are elected in these assemblies in a very similar way to Porto Alegre. However, these assemblies do not lead to a council, a second important element of the bottom-up format. This lack of assembly council in the PB process has made Belo Horizonte’s PB a bottom-up institution with a few power-sharing elements. The administration has most of the prerogatives on the final format of the city budget. What makes Belo Horizonte a bottom-up format is the fact that decisions concerning budgeting at the regional assemblies are final, a characteristic that is shared by successful cases in Argentina and not shared by the

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unsuccessful case of Buenos Aires. Thus, in the expansion of PB, it is less important to methodologically reproduce the format than the political ability to empower citizens on the budget, a device that, as I will show, has been present in some cases of PB diffusion and lacking in many other cases. PB in Belo Horizonte occurred just a few years after PB was introduced in Porto Alegre, making Belo Horizonte a weak example of PB expansion. However, Belo Horizonte does provide us with some valuable insight into what a successful expansion design should involve. In Belo Horizonte, the PB programme design differed from other PB programmes previously introduced elsewhere in Brazil. The variation in programme design is proof that the adaptability of the PB programme to suit a region’s needs is a key strength of this participatory institution. However, we have also seen that the PB programme design must maintain and protect the institution’s prerogative to inform budgeting decisions. Belo Horizonte, Porto Alegre and other cities in South America such as Rosário, share this characteristic. However, this is not a widespread characteristic in European PB cases (Allegretti, 2014). Another characteristic that PB in Belo Horizonte and PB in Porto Alegre share is large-scale participation. Large-scale participation is important in order for the experimental dimension of participatory institutions to take place. It is impossible to make political participation relevant without a large number of participants. Scaling up also becomes highly irrelevant in cases of low levels of participation. Finally, there is the learning aspect that may perhaps apply to both cases. In the next two subsections, I will evaluate how the relevant elements of innovation apply in the Brazilian cases of diffusion and I will then proceed to discuss international cases. Expansion of Participatory Budgeting in Brazil The expansion of PB was initially a local Brazilian phenomenon. The PT took advantage of the transparency and efficiency elements in PB to present itself as a party capable of producing good administrative practices. To make this argument more effective, the PT introduced PB in almost 100 cities between 1997 and 2004. PB in this period was practised in five of the ten largest cities in Brazil: São Paulo, Fortaleza, Belo Horizonte, Porto Alegre and Recife. The expansion of PB was a PT agenda proposed in electoral campaigns and the

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proposal gained the support of large constituencies. Still the results yielded different results in different locations due to varying political considerations, lack of civil society organization and administrative deficiencies. To illustrate my point, I will look at two contrasting cases in Brazil: São Paulo and Recife. São Paulo I approached the case of São Paulo’s PB at length elsewhere (Avritzer, 2004, 2009). São Paulo (2000–2004) is a very interesting case because it fits into the narrative of the PT’s willingness to implement participation in order to present itself as a good and efficient government party, yet the story is much more complicated. There were strong political disputes around the implementation of PB because both the municipal administration and strong sectors of the PT were not 100 per cent in favour of PB. PB in São Paulo was initially introduced as a small pilot programme in 2001, then fully implemented in 2002 with a structure that resembled Porto Alegre’s PB more than Belo Horizonte’s. During its first year, PB in São Paulo decided on investments in only two areas: health and education. The first stage of participation in São Paulo encompassed assemblies in all 96 districts of the 31 regions or subprefeituras.5 There were two meetings in the districts (one informational and the other deliberative) leading to the election of delegates and councillors. The procedure for electing delegates was similar to that of other Brazilian cities such as Porto Alegre and Belo Horizonte. The first observation to note about PB in São Paulo is that from the very beginning of PB’s introduction, there was a disconnect between the desire of participation and the supply of participatory opportunities. At the regional level, participants were eager to attend assemblies and deliberate, but the administration was reluctant to incorporate more areas of public policy into PB. São Paulo was not the only city to experience this tension: the dilemma was shared by many other cities, among them Recife and Buenos Aires. However, what I will argue is that the solution to this problem is key to the success of PB. The most important innovation of the PB process in São Paulo was the composition of its council. São Paulo created a council with representatives from all 96 districts in addition to representatives of underrepresented groups, such as the homosexual community, the street population and other specific-issue groups. The 2003 PB

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Table 3.2  General data on participation in São Paulo’s participatory budgeting (PB) PB 2001

PB 2002

Participants 34 000 55 000 Delegates 1076 1134 Councillors 112 139 Areas of Health and Health, education  deliberation education and third area

PB 2003

PB 2004

80 000 82 000 2131 2219 216 241 All city All city policy areas policy areas

Source:  Sánchez (2004).

council had 61 councillors elected by the subregions, four councillors elected in each thematic area, plus two councillors representing minority groups. The city had one representative for each of the secretariats running social programmes, although they could not vote. The format of PB council in São Paulo allowed for more interaction between neighbourhood associations and the poor, who are concentrated in the downtown area. The diversity among those participating allowed PB to address a variety of social issues and, in a sense, bridge the socioeconomic gap by offering a level playing field where anyone and everyone could influence policy. Participation in PB grew steadily from 34 000 people in the first year to 55 000 in the second and 82 000 people in 2004, the fourth and last year of its operation (Table 3.2). In terms of its main characteristics, São Paulo PB was also a deliberative form of participation, showing that at least in its emergence the idea was to give power to citizens to influence budgeting. Open-entry assemblies at the local level were the starting point that continued with the election of a council. However, different from Porto Alegre and Belo Horizonte, São Paulo’s PB was tainted by its limited capacity to influence policy. Although São Paulo’s PB decided on issues in the area of education and health, its decisions overlapped with other decisions taken in both participatory and non-participatory arenas. In the area of education, PB decisions overlapped with the decision of the administration to introduce Unified Centres of Education (Centros Educacionais Unificados – CEUs), and in the area of health, PB decisions overlapped with the Health Council’s decision to boost the Family Health Programme. Therefore, the elements of the deliberative institution were in place

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but the administration did not give full priority to the deliberative process. In the end, São Paulo’s PB worked only in selected neighbourhoods and in selected areas. We can summarize São Paulo’s PB problem in terms of the insufficient commitment the city made to support PB’s decision-making capacity. The lack of administrative support led to competition between PB and the educational and health programmes linked to the mayor’s office. Thus, the failure of São Paulo’s PB is due to the limited resources invested and, more significantly, due to the inability or unwillingness of the city to incorporate PB into its key practices. São Paulo is just one example, among many in both Europe, particularly in Portugal, and South America, of a city where PB was compartmentalized and insulated from other policy-making p ­ rocedures. The question that I will answer in the concluding remarks of this chapter is: how do we analyse cases of PB where the democratic deepening impulse of PB is downplayed by an administration that still wants to carry it out for political reasons? I will also discuss whether PB is in fact an empowering democratic innovation. Recife Recife’s PB is worth analysing because it shares with São Paulo PB the PT’s initiative to draw on good government innovations, whilst PB in Recife differs from São Paulo in terms of the former’s success. Recife is an interesting case in terms of the preconditions for success of participation. Recife had an experience of PB in a liberal/conservative government under the administration of Roberto Magalhães. PB in Recife existed almost as early as PB in Porto Alegre and was primarily a device used for collecting demands that were later selected by the mayor, allowing the incorporation of popular leaders into the government (T. Silva, 2003). The election of the PT mayor João Paulo led to a challenging attempt to refurbish PB in Recife. João Paulo’s administration took steps to emulate the organization of PB in Porto Alegre. Porto Alegre sent methodology specialists6 to Recife, where they introduced city officials to the details of PB – the regional assemblies, the election of a council and so on. Interestingly though, Recife PB had its own particularities and very soon moved on to substantially build PB into their government system. The first characteristic of Recife that made the city different from São Paulo and Porto Alegre was the structure of its associative life.

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Many people already observed the presence of a few neighbourhood associations in Recife, with a large number of constituencies, diverting from the more horizontal pattern of neighbourhood associations of the Brazilian south. These associations were usually connected to political parties and were unable to fulfil the role of intermediaries between citizens and the state. Recife’s PB gave incentive for the formation of smaller associations and the participation of non-­ associated members. The most important innovation introduced by PB in Recife was a method of increasing the support of the population to different PB proposals. The city kept the centrality of the assemblies but kept ballots open for two additional days in central areas of the city. Citizens could not propose new infrastructure projects, but they could vote and alter the order of the ten projects that received the most votes during the assembly. Thus, a new relationship between participation and ballot voting emerged in Recife, again showing that the key to participatory institution success is adaptation of the innovation to fit the local context (Avritzer, 2009). Recife also devised an innovative solution for how to best place PB within the pre-existing administration, which is a highly contentious issue in all experiences of PB. The problem involved in locating PB at the administrative level is that if PB stands in a higher position than other secretariats it triggers internal rivalry, as the Porto Alegre case shows (Avritzer, 2002). However, if PB is just a common secretariat, it needs the agreement of all other secretariats to implement assembly decisions and would eventually make PB less effective and discourage participation, as has happened in São Paulo and elsewhere. The issue is not simple. Recife found an intermediary solution to this issue by horizontally integrating select secretariats (i.e., the ones in charge of social policies such as education, health and social assistance) and producing the Secretariat of PB and Citizen Participation (Secretaria de Orçamento Participativo e Gestão Cidadã) (Barbosa da Silva and Teixeira, 2007). PB in Recife was extremely successful7 in all three criteria that I mentioned at the beginning of this chapter. Recife PB was successful in its ability to attract the population to regional assemblies. Regional assemblies initially took place in very improvised places, such as tents assembled in precarious areas of the city. Since 2001, the city had sponsored the organization of 38 meetings in its 18 microregions, thus thoroughly implementing a structure of regional and intermediary assemblies. The PB in Recife did not originally

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attract strong participation from the poor. In Recife’s first year of PB, 27 000 people participated with strong presence of participants in poor neighbourhoods such as Casa Amarela and Vasco da Gama. In total, 58 per cent of participants in these regions had links with the neighbourhood associations. The introduction of ballot box voting, in order to rank decision, almost doubled participation after the first year. When we look into the long-term results of Recife PB, we also see important results in terms of the amount of the budget implemented that PB directly impacted. Between 2001 (when the PB began) and 2010, some US$350 million was spent on projects, which was funnelled through the PB process. And the influence of PB on public spending only grew. In 2010, some 3000 different public works and 77 programmes and projects were being implemented at a total  budget  cost of US$160 million8 (Spink and Teixeira et al., 2011). Recife PB became an international reference project, particularly in the case of Brasília Teimosa. In a similar way to the cases of Belo Horizonte’s Aglomerado da Serra and Porto Alegre’s Vila das Placas, the urbanization of Brasília Teimosa is a key project of the city that became participatory. Brasília Teimosa (Stubborn Brasília) is a typical Brazilian slum (favela). It is home to a large number of squatters and is located in a highly valuable area of Recife. Public administration tried many times to address the homeless population and remove squatters, but the administration’s efforts never reached a sustainable solution (Fortin, 2014). In the early 1980s, low-income citizens from other neighbourhoods were relocated to Brasília Teimosa. The neighbourhood residents created a movement called Teimosinho, through which the community claimed improvements in an area that was constantly flooded by the sea. Brasília Teimosa became a ZEIS, a Special Zone of Social Interest,9 but it has never received the resources it needs to generate good-quality, sustainable living conditions for the residents. PB made the urbanization of Brasília Teimosa a priority. PB introduced several inclusive policies in order to jumpstart urbanization, which required the temporary removal of up to 2500 people. All those removed were given rental aid to continue to live nearby and those who had skills were hired for the construction work (F.M. Oliveira, 2004). New 39m2 housing was constructed for residents and a new avenue stopped the flooding. Overall, the project created

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better working conditions for the neighbourhood. Brasília Teimosa became a reference project on urbanization in Brazil and PB Recife received international acknowledgement. Brasília Teimosa received the Reinhard Mohn Award.10 Former president Lula visited the new, revitalized neighbourhood, and the project received significant coverage from the New York Times. Altogether, PB in Recife has been a successful case of expansion/diffusion because it managed to adapt PB to the city’s needs, accommodated the political context and used budget resources to improve participation and access of the poor to public goods. Overall, PB in Recife is a prime example of the successful innovation of PB as a participatory institution, used to improve living conditions, democratic values and urbanization. São Paulo and Recife compared These two cases of PB – Recife and São Paulo – allow us to better understand the criteria necessary for the successful expansion and diffusion of PB. The cases are good, comparative examples because they share key similarities: they are both Brazilian cases and proximity is a criterion for successful diffusion (Simmons and Elkins, 2005). Both cases capture PT influence and both PBs were implemented roughly at the same time, a period in which the PT needed political acknowledgement for being able to produce good government. And last but not least, both cases received strong opposition by conservative parties – the liberals in Recife and PP/PSDB (Partido Progressista/Partido da Social Democracia Brasileira) in São Paulo. Yet, Recife and São Paulo produced different results. Given all these similarities, what explains the difference? In my view there are three differences between São Paulo and Recife that should be kept in mind in order to understand diffusion of participatory institutions. PB in São Paulo, as I pointed out in an earlier work (Avritzer, 2009), was disempowered by the city as soon as it faced its first set of challenges. For São Paulo, participation was a new concept, and the resulting initial low levels of participation made the project politically vulnerable. In addition, São Paulo made health and education PB priorities, but there were also major city programmes for both areas outside PB, causing tension in the decision-making process. Recife faced the same problems of initial low levels of participation11 and strong administrative opposition, but Recife used participatory institutional design to solve these problems. Thus, the first difference to observe between Recife and São

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Paulo is that the mix between assembly and ballot vote introduced by Recife was an innovative response to low levels of participation and attendance of the assemblies in some neighbourhoods. It shows that adaption of PB can take place, but the solution itself needs to reinforce some basic elements of the proposal, either participation or budget-making itself. The second difference is even more important and concerns the connection between the administration’s main projects and PB. This connection was observed in the case of Porto Alegre by several scholars when the city tried to construct a major road and decided to take the proposal to the PB council. The debates on the transportation construction in Porto Alegre played a key role in giving legitimacy to PB. The same happened in Brasília Teimosa. Initially there had been conflict between the defenders of PB and the city administration regarding the rules for the financing of the ZEIS. However, instead of the emerging conflict leading to disempowerment of PB, it led to its strengthening. Last but not least, there is the issue of the relation with the political system. The political system has several possible responses to PB: (1) ignore it, (2) weaken it or (3) sponsor it. In the case of São Paulo, where the PB was supported by the PT, the option was to disempower PB. São Paulo anticipated difficulties that PB would have in its diffusion process from within the administration. It is very difficult for PB to survive unless it is a top priority of the administration. Recife exemplifies how social innovation can be used to overcome opposition (Montambeault, 2016). Table 3.3 systematizes the Brazilian cases, and its categories will be used to analyse the expansion of PB in the next subsection. Expansion of Participatory Budgeting Beyond Brazil: A Comparative Analysis of Cases in Argentina Beyond Brazil, there are two different cases of expansion of PB that are instructive on the possibilities and limitations of democratic innovation: Buenos Aires and Rosário in Argentina. Argentina introduced PB after the acute crisis of the corralito12 between 2001 and 2002. The corralito was the result of poor economic policies and lack of political leadership during the last moments of the De la Rúa presidency in Argentina. As a reaction to the freezing of all checking accounts, Argentineans took to the streets and the government

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Table 3.3  Analysing participatory budgeting (PB) as a participatory innovation City

How the Institutional Design Was Adapted to the New Context

Relationship with the Administration’s Main Political Projects

Political Actors’ Result Reaction to Stalemates within PB

Porto Alegre

PB emerged having in mind the city context; adaptation of the region to social actors demand helped to make PB successful PB emerged with significant impact and votes of public works were final PB emerged as an attempt to reproduce a successful local policy in another political setting PB emerged as an attempt to reproduce successful local policy and adapt it to another setting, with democratic innovations

Direct relation with important projects channelled through PB such as the Perimetral urbanway and Vila das Placas Direct relation with some projects to urbanize favelas

Support for the Success PB process

Belo Horizonte

São Paulo

Recife

Small opposition to PB process

Success

Failure Major education PT divided on the and health implementation programmes were independent of PB Support for the Success Most of PB process the social secretariats were incorporated into PB

declared a state of emergency. The state of emergency was widely ignored, the president resigned and asambleas barriales emerged in many parts of Argentina. The largest were in Buenos Aires and Rosário (Ford, 2010). In both cities, between February and March of 2002, hundreds of people would meet regularly. In Rosário, 22

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neighbourhood assemblies were formed and an intercity organization emerged (the interbarrial) in which broader themes such as health and education were discussed (Argento Espósito, 2014, p. 81). In Buenos Aires, the asambleas barriales were also very strong, and there were at least 49 of them in early 2002 (Ferraro and Coronel, 2004). It was not by chance that the two cities implemented PB in Argentina after the 2001 crisis by incorporating the asambleas barriales into the design.13 Buenos Aires PB was implemented in Buenos Aires after a very long and contentious process regarding participation that started in the previous decade. In the previous decade, popular participation became an issue in the dispute between the Radical Civic Union (Unión Cívica Radical – UCR) and FrePaSo (Frente País Solidário – Front for a Country in Solidarity) who jointly won the elections for the city. Though there was a constitutional provision allowing for the implementation of PB in the city constitution, the UCR was against PB and FrePaSo was in favour. This situation changed after there were new elections, as FrePaSo won elections with Mayor Aníbal Ibarra, who was not in favour of PB either (Rodgers, 2010, p. 10). However, against all the odds, PB was implemented in the city of Buenos Aires after the cacerolazo (popular protest) and the emergence of the asambleas barriales. The implementation of PB in Buenos Aires clearly followed the Porto Alegre model in terms of the organization of assemblies. During 2003, PB became very strong in the administration and was able to gather broad support from the population. The number of participants in 2003 was relatively high and it increased in the next year. The motive behind the implementation of PB in the city was clearly the 2001–02 crisis, as a few documents of Buenos Aires PB clearly state (GCBA, 2003). PB’s first phase, from 2003 to 2004, can be considered successful in terms of both participation and execution of decisions (Table 3.4). The implementation of Buenos Aires’ PB mirrored that of PB in Porto Alegre in regard to the political environment and proximity (Simmons and Elkins, 2005). In the case of Buenos Aires, one key element of design was lacking from the very beginning: the mandatory nature of the decision on the budget. In Buenos Aires, no resources were allocated directly to PB. Instead, the works were ­commissioned

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Table 3.4  Participatory budgeting in Buenos Aires Year

Number of Participants

2003 2004

9450 14 000

Number of Proposals Number of Proposals Approved Executed 189 1000

65 NA

Source:  From official data of the city of Buenos Aires.

by the mayor’s office or the Decentralization Secretariat, making the success of PB highly dependent upon political blessing. In addition, PB in Buenos Aires was not a city-wide strategy but a strategy operated in only some regions and therefore serving only a subpopulation. Thus, it has not been the central policy for the population as a whole but mostly for the poor on the outskirts of the city. It is difficult to know why PB was discontinued in Buenos Aires but a strong hypothesis advanced by Rodgers (2010) is that there was a reorganization of Peronist forces in Buenos Aires in 2004–05 that involved the Kirchners and other political forces. The Kirchners claimed control of the outskirts of the city and infiltrated their forces into their clientelist networks in the old Peronist way (Auyero, 2002). This led to the appointment of Cappacioli, a Kirchner supporter, to the position of Secretary of Decentralization. After that, PB was progressively discontinued. Rosário The case of PB in Rosário is completely different from that in Buenos Aires, first of all because of the political tradition that had seen the Socialist Party occupy office since 2000. PB emerged in Rosário during the 2001–02 crisis and the PB programme design was a mix of characteristics seen in PB in Porto Alegre and PB in Belo Horizonte. For PB in Rosário, there were four rounds of meetings. The first round of regional assemblies were in the districts and during these meetings proposals were presented by the population in a similar way to PB in Porto Alegre, Belo Horizonte and Buenos Aires. This led to the second round of council meetings called Consejos Participativos de Distrito (CPDs). This is an innovation that emerged in Rosário. The consejales (councillors) sit together with technicians and transform the proposals into projects. In the

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70 000 60 000

2nd stage of assemblies Series 1

59 694

59 774

2012

2013

50 000 40 000 30 000 20 000 10 000 0

8529

8737

2007

2010

609 2003

Source:  From official data of the municipal city of Rosário.

Figure 3.1  Participation in participatory budgeting in Rosário second round of regional assemblies these proposals are presented to the participants in a more concrete form and are hierarchized. In the third round, a summary of what has been implemented in the previous year is made (Annunziata, 2011; Pinillos and Signorelli, 2014). There is not a city-wide PB council, only a district council, but the decisions of the hierarchization are final, a design that resembles Belo Horizonte’s PB. Participation in Rosário’s PB achieved very high levels, higher than Buenos Aires and similar in rates to Porto Alegre. Initial participation was low, with 609 participants, but grew to several thousand participants from 2004 to 2007 (Pinillos and Signorelli, 2014). There was a sharp increase in participation rates after 2010 when the ballot box was introduced and the method of voting changed (Figure 3.1). PB in Rosário is an exemplary case of the use of participation to change city priorities. The case of Fábrica de Armas, which occurred during the Lifschitz administration,14 shows how democratizing PB can create a productive interaction with the political system. In the southwest district of Rosário there was a large vacant area that the local population wanted to transform into a technological park (Ford,

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2007). However, the city wanted to build a prison facility or construct a new headquarters for the administration on the vacant lot. In early 2004, construction work for the new headquarters started and the case came to the attention of PB councillors. During his presentation of the 2004 plan for PB, the Secretary of Governance (gobernación) was challenged over the new construction and claimed not to have knowledge of the ongoing work at the site. However, he stayed open to further consultations. A few months later, the PB council held a press conference on the issue. Part of the argument of the PB council was that the site was prioritized for PB activities during the previous year, and PB rules were violated when the lot was claimed by the city for different purposes. At this point proposals and bids for the construction of the new headquarters were already under way. A few weeks after the PB council press conference, the city gave up on the construction of the headquarters on the site and decided to decentralize the construction of the prison facility (Ford, 2007, p. 139). PB in Argentina and Brazil compared PB in Argentina reproduced similar successes and failures to PB Brazil, inferring that the results of PB are not specific to a country but are more general to PB as a participatory innovation. Buenos Aires seems to be a case very similar to São Paulo. The two cities have a very complex political system that considered PB one among several other alternative initiatives. It is possible to say that São Paulo’s PB was more participatory than the one proposed by FrePaSo, but is could also be said that Buenos Aires had more legal foundations for carrying out PB than São Paulo. In the end, what really impacted PB in the two cities were the political calculations. In the case of São Paulo, the PT core group was already preparing itself for a politicsas-usual approach that they implemented at the national level. In the case of Buenos Aires, the negotiations between the Kirchners and Ibarra (particularly when Mauricio Macri presented his candidacy for governor for the first time) became the key variable for the weakening of PB (Rodgers, 2010). The price was the exchange of the main organizer of PB, for a person of his group (Cappacioli15) in the position of Decentralization Secretary. This move sealed the fate of Buenos Aires PB. Rosário PB showed another dynamic that resembled the PB programmes of Recife, Porto Alegre and Belo Horizonte. Most likely the move to implement PB in Rosário and Buenos Aires would have

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been similar, but the Socialist Party in Rosário had a different political tradition than the Peronists/Kirchneristas. In addition, the three administrations that carried out PB in Rosário (Binner, Lifschitz and Mónica Fein) were all supportive of PB, and major advancement of PB took place during the Lifschitz administration. Additionally, the administration supported the transformation of PB councillors into city councillors, showing a positive relation between participation and political representation (Ford, 2010). Rosário PB shares very interesting characteristics with the successful Brazilian cases. All these cases have the administration integrate with PB. These cases also included important conflicts between the PB and the administration on specific policies. It was these conflicts that ultimately gave favour to the participatory policies. Thus, my argument is that a successful PB model is not a ‘Brazilian model’ or a model that can only be implemented in Brazil. The two Argentinean cases further corroborate that PB success is not determined by whether a case is Brazilian or non-Brazilian, but rather by whether or not the environment surrounding the PB case supports and empowers the participatory institution. Another significant contributing factor to PB success is the political support to transform the PB system from a bottom-up system into a deliberative case of good governance with meaningful participation.

CONCLUSION: DEMOCRATIC INNOVATION AND CITIZENS’ PARTICIPATION – A FEW THEORETICAL REMARKS There is a large literature on the expansion of innovation – policy innovation, and political innovation – that highlights the difference between external and internal pressures. Examples of external pressures are pressures issued by major economic and political actors, such as the economy and international development agencies (Simmons and Elkins, 2005; Faria et al., 2016; Sugyiama, 2008; Weyland, 2007). Based on this literature it is possible to show the similarities and discrepancies involved among cases of the diffusion of policy innovation and the diffusion of democratic and political innovations. The literature on policy innovation divides its approach according to external and internal pressures applied to major policies such as pension reform and policies of large scope (Weyland, 2007).

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Diffusion or expansion of a participatory or democratic innovation such as PB follows a different logic that overlaps with the policy innovation literature but also goes beyond it. First of all, major economic actors are not dramatically interested in diffusion of ­ participation, which gives less weight to external factors. Even international institutions are not very interested in the innovation, despite signs of World Bank support for PB that seems to be more an interest in good governance, than of deepening participation (Goldfrank, 2007, 2012; Shah, 2007).16 However, other aspects of innovation such as learning, belonging to a network or political identification, operate in democratic innovations. The characteristics of the cities that adopted PB are sometimes similar and sometimes different from the ones that made it known. Most of the cities that practise (or have practised) PB in Brazil and Argentina (Europe and Asia and other cases) have formats that vary according to budget, participation, level of democracy and degree of support by the political system. As I have argued in this chapter, being able to adapt PB is not the concern. The concern is if the direction of change generates more or less democracy or a better state and society integration. The problems surrounding the expansion of participatory innovations are different from the problems of expansion in other areas of public policy. In the case of participatory or democratic innovations, the goal should be to democratize the state and improve society relations (Montambeault, 2016) or to deepen pre-existing democratic practices and implement inclusionary policies. The capacity for a state to do this varies from experience to experience and the success or failure of PB should be measured according to this capacity and not according to the number of existing experiences, as some authors have argued (Dias, 2013). Another important issue to note is the role of the political system and its influence on the implementation and sustainability of PBs. This is an issue that has not adequately been addressed in previous literature, and I have addressed the issue in this chapter to hopefully spark further inquiry. The PT was behind the first wave of PB experiences in Brazil, which does not mean that it gave equal support to all experiences, but the political support of the party was significant. Clearly, political support is a contributing factor to the success of PB, as in the case of Porto Alegre and Recife, or to its lack of success, as was the case in Buenos Aires and São Paulo. The political empowerment or ­weakening of PB actors was

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ultimately the largest contributing factor to PB success or lack of success. One final issue to mention is the process of PB becoming a name or a trademark. All South American cases analysed are cases in which there has been a serious attempt to implement PB, especially if we take into consideration the three criteria advanced in this discussion. Even in these cases we see that failure is a possibility. Usually when PB becomes a trademark, it passes through a process of transmutation. In my view, the main elements of transmutation are those that we pointed out in this chapter, namely, low levels of commitment with budget democratization; few attempts to place emphasis on the deepening democracy aspect; and, last but not least, insulation of PB within the administration by the political system. In these cases, PB became a form of governance or ‘transparency’ but not a form of democratization of state and society relations (Wampler, 2016). I will show in the concluding remarks of the book why this contrast defines the democratic innovation side of PB.

NOTES  1. A few other important innovations emerged in South America in the previous democratic period (1946–73). Perhaps the most important is public party financing introduced in Uruguay after World War II.  2. Baierle (2000) analysed local assemblies in terms of which actors have the most voice in the process. He showed that the use of voice was distributed fairly in participatory budgeting, with poor social actors making frequent use of the floor.  3. I would argue that these actors, some of them members of a party bureaucracy with democratic deepening as their intent, are an element of participatory budgeting that is undertheorized in the literature. Very few scholars have examined this issue, assuming a natural tendency to form a bureaucracy that deals with such issues. I remember having discussed this issue at length with the late Judith Tendler, who always tried in her work to connect action and the organization of bureaucratic implementation (see Tendler, 1997).  4. It is beyond the aim of this work to analyse the formation and evolution of the Workers’ Party (PT). For an analysis of the movements that claimed labour autonomy in Brazil during the democratization process, see Avritzer (2002). For an analysis of the formation of the PT, see Keck (2010).  5. São Paulo participatory budgeting was linked to the process of decentralization of the city. Decentralization law was approved in 2002 and from 2003 onwards PB deliberations were linked to the organization of the 31 subprefeituras.  6. The idea that PB is a methodology is a largely diffused idea that led to the development of specialists. These specialists travelled both in Brazil and abroad to introduce it to newcomers. Methodology guides emerged, some of them sponsored by governments, others by NGOs or international institutions. In my view what is behind the methodologies is the idea of expansion through learning

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 7.

 8.  9.

10.

11. 12.

13. 14. 15. 16.

The two faces of institutional innovation within a network (Simmons and Elkins, 2005). All cases of PB in Europe involve a methodology but very few involve democratization of budget prerogatives. This statement disagrees with the assessment made by Françoise Montambeault in her excellent book The Politics of Local Participatory Democracy in Latin America (2016). I share with Montambeault the framework for assessing success that, both in her work and in my work, is the capacity to democratize state and society relations. In addition to this criterion, I also think that the capacity to transform decisions into public policy should also be taken into consideration. Montambeault uses one criterion to rank Recife as an intermediary case, that is, the relation between PB and PT’s constituency. For her, the autonomous criterion would be broken by the evidence of party incorporation of social actors. Although I think the author has an important point, it is interesting to look into the kind of role social actors would perform in the party and the kind of role the party would play in participatory policies. The original data were in British pounds. I used the exchange rate between the US dollar and British pound at the time. Recife played a very special role in establishing the ZEIS (Zona Especial de Interesse Social), a zone for special attention and investment due to a large population of poor dwellers or to the lack of urban infrastructure (see Fernandes, 2007). ‘The Reinhard Mohn Prize allows the Bertelsmann Stiftung to recognize innovative approaches and effective solutions to sociopolitical problems. To award the prize it carries out a global search for exemplary programs and initiatives’ (Reinhard Mohn Prize, 2017, accessed May 27, 2017 at https://www.bertelsmann-stiftung.de/ en/our-projects/reinhard-mohn-prize/). Recife’s initial level of participation in 2001 was approximately 20 000 participants. This number doubled to nearly 40 000 people in 2002. The informal name for the economic measures taken at the end of 2001 by Minister of Economy Domingo Cavallo to stop a bank run, in effect almost completely freezing bank accounts and forbidding withdrawals from US$denominated accounts. The comparison between asambleas barriales and PB assemblies is interesting. The asambleas barriales contained a more radical critique of politics-as-usual than the neighbourhood assemblies in Brazil, which are more interest oriented. Fábrica de Armas was a deactivated arms factory that became a desirable space for community activities. Miguel Lifschitz was the Mayor of Rosário 2003–11. Héctor Capaccioli is one of the closer associates of the Kirchner family. He was indicted on charges of illegal campaign financing in 2017. Goldfrank (2012, p. 3) shows that the World Bank has spent US$280 million in support for PB and PB-related projects. World Bank PB has a few characteristics, namely, the focus on budget transparency, the quantity of the budget amount employed as a secondary element and the absence of any link between PB and the democratization of the political system.

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4. Councils and monitoring in Latin America as forms of participatory accountability INTRODUCTION The second type of democratic innovation dealt with in this book is linked to accountability (Bovens et al., 2014; Day and Klein, 1987; Mulgan, 2000) and transparency (Hevia and Isunza, 2010, p. 64). Accountability is a very old concept in both North America and Europe. Accountability originally meant making individuals or the state accountable to a larger public through a process of rendering accounts of what they possessed. This meaning was later expanded to politics, including legal processes between the state and social actors through which the state makes decisions transparent and/or justifies its decisions (Warren, 2014, p. 40). In its European and North American political usage, accountability is linked to the idea of making state action public to certain actors through specific processes that can be either electoral or non-electoral (Bovens et al., 2014, p. 4). However, use of the term accountability is expanding well beyond the political dimensions and is becoming a catchword for administrative and corporative practices (Mulgan, 2000, p. 555). Use of the concept in the areas of market accountability, fiscal accountability or rating accountability has become rather common in the literature. In this chapter, I will stick to the core definition of accountability as a relational process (Almeida, 2015) that grounds democratic sovereignty (Borowiak, 2011, p. 6). Accountability as a consolidated political science concept is closely related to democracy, which is a concept that deals with the forms of government that connect the people to those who govern on their behalf (Warren, 2014, p. 40). Accountability is one of the mechanisms by which individuals can control, or get information from, their representatives (Pitkin, 1967).1 However, these mechanisms, which most 75

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of the political science literature reduces to elections (Stokes, 1997), go far beyond elections to include at least one additional dimension, namely, the control that elected bodies should be able to exert over public policies and/or bureaucratic officials (Borowiak, 2011). Thus, a democratic theory of accountability needs to assume that accountability is linked to the process of organization of state power and that heavy disputes over policy take place (Tilly, 2007, p. 136). Accountability as a key concept of democracy entails the relationship between the state and citizens or between the state and social actors (Borowiak, 2011, p. 13; Bovens et al., 2014, p. 9). However, to make this general definition more precise, the democratic relational elements of accountability must be identified. Some authors argue that elections as a relational mechanism are sufficient for the citizens to establish control over representatives (Przeworski and Stokes, 1999);2 other authors argue that legal arrangements are sufficient for making actors accountable (Scott, 2000). I will propose a different approach that entails the role of councils in public policy and electoral control in Latin America. I will argue that councils are an example of a local democratic innovation I call participatory accountability. For the purposes of this chapter and the theoretical debate on accountability, I will define participatory accountability as a relational mechanism that connects the state and social actors in one specific dimension, namely, the implementation of public policies by elected officials and the bureaucracy.3 In this sense, participatory accountability is a post-electoral mechanism for the enforcement of policies. Control in that case is based on two elements. The first element is a legal mechanism for the functioning of government after elections that binds public policy decisions. It is true that the post-electoral enforcement of policies varies according to trust (Mansbridge, 2014) and the existence of an internally committed bureaucracy (Friedrich, 1940). In this sense, different administrations in Brazil, Bolivia and Mexico behave differently in relation to participatory councils’ mechanisms. The second element of participatory accountability involves the mechanisms of the participatory process itself. These mechanisms, which bind governments and councils in relation to the use of public funds, are in my view one of the most successful innovations in Latin America because they are not mechanisms of control of power-holders but, rather, mechanisms of control of elements of the policy itself. Independent of the elected

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officials, obligations between the administration and the councillors in relation to account settling (prestação de contas) remain. In this chapter I will assess only one form of accountability, which emerged in Latin America and that is, I will argue, the most successful democratic innovations to emerge thus far, namely, policy councils in Brazil, citizen councils (instituciones ciudadanas) in Mexico and oversight committees (comités de vigilancia) in Bolivia (Avritzer, 2009; Hevia, 2013; Isunza, 2016; Touchton and Wampler, 2014). Despite agreement on the success of these examples of accountability, there is no explanation in the theory as to why they are so successful. What these theorists (Ackerman, 2007; Faguet, 2013; Gray-Molina et al., 1999; Oxhorn, 2001; Touchton and Wampler, 2014) show is a ­positive statistical correlation that points towards success in these public p ­ olicies. I will advance a theory based on participatory accountability and its success. I will start with the availability of the mechanism and later move to the analysis of design and policy.

COUNCILS AND COMMUNITY PARTICIPATION IN LATIN AMERICA: FROM THE COLONY TO NEW CONSTITUTIONALISM Council and local community assemblies as a form of participatory accountability have their origins in a traditional form of linking state and society in Latin America from colonial times (Lockhart and Schwartz, 1983; Van Cott, 2008). In the Andes, for example there has been a long tradition in local indigenous communities of practices of holding leaders closely accountable – that leaders ‘serve obeying’ – indicating that community representatives in local government bodies existed throughout the colonial period (Van Cott, 2008, p. 13). The community had control over their representatives in local bodies created by the Spanish colonial administration and later by the independent administration (Andrade, 1990; Van Cott, 2008). Brazil lacked a communitarian form of indigenous organization, but it also developed local councils. Local councils were a form of broadening decision-making. Town councils in Brazil were a local institution with prominent citizens that expanded decision-making processes beyond the colonial administration power (Lockhart and Schwartz, 1983). These councils had more influence than power and the town council members, different from Hispanic America, elected

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their presidents, thereby being able to influence administrative decisions on taxes and on how to expend local resources (ibid.). Imperial Brazil did not retain the council system, but it came back with full power during the Vargas administration in the 1930s. During the Vargas period, councils re-emerged in the political administration of Brazil with a very similar role to that played in contemporary Brazil (Schmitter, 1971). In his first tenure (1930–45) Getúlio Vargas created important councils such as the Conselho Nacional do Patrimônio Histórico (Advisory Council on Cultural Heritage) and Conselho Nacional de Cultura (National Council of Culture). Both councils expressed the general idea of participatory accountability, that is, that the state or public administration cannot control the whole decision-making process on a specific policy. Vargas also oversaw the first National Health Conference in 1941. Thus, the Latin American tradition is a tradition that involves two broad practices of state and society relations. The first practice is a system of holding representatives accountable to their original appointees. This idea, a very contentious one in the representation debates (Manin, 1997; Pitkin, 1967), was part of local traditions in several Latin American countries and grounded a new conception of participation in some of them, for example, in Bolivia (Van Cott, 2008). After democratization, new constitutions emerged in Brazil, Colombia, Peru and Bolivia.4 These constitutions worked with the idea of social movements or civil society representation (Lavalle and Castello, 2008). This representation was a form of control by civil society associations of policies (Hevia, 2013) made by individuals who were expected to return and be accountable to their constituencies. The second practice is a broader conception of administrative decision-making that is incorporated in councils and other citizen bodies. The idea is that elections are not enough to determine the whole decision-making on policy and that there are extra-electoral elements in policy that need citizen participation for their organization. Citizen participation is carried out in three different ways: (1) in the election every two years of civil society representatives that discuss policy issues and policy objectives with the public administration; (2) in the disclosure of policy documents to members of civil society in order to effectively allow them to take decisions; and (3) in the requirement of civil representatives to be part of the financial accounting rendering process between local administrations and the

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federal government. Together these three elements make up what I call participatory accountability. In this chapter I will analyse three different experiences of accountability in Latin America: policy councils in Brazil, monitoring bodies in Mexico and monitoring bodies in the Andean region.

COUNCILS IN DEMOCRATIC BRAZIL: ORIGIN, DIVERSITY AND EFFECTIVENESS Policy councils in Brazil are a result of important changes introduced by the 1988 Constitution. The Constitution resulted in a significant increase in forms of participation. The topic of participation is present in eight articles and chapters of the 1988 Constitution. It is present in Article 1 on popular sovereignty, in Article 14 on the different formats of referendum and popular initiative, in three ­ chapters on social policies (health, social assistance, child and teenager  policies) and in the chapter on urban and environmental policies. The emergence of policy councils was the result of the infraconstitutional regulation5 on social and urban policies. LOS (Organic Health Law No. 8080) was enacted in 1990, LOAS (Organic Social Assistance Law No. 8742) in 1993, the Statute on Child and Teenager Policies (Law No. 8069) in 1990 and the City Statue (Law No. 10.257) in 2001. All these laws and statutes were responsible for a second line of participatory institutions called policy councils. The current format of councils in Brazil emerged during the 1980s as democratization took place. Important social movements emerged in the area of health (Sader, 1988), and national health conferences were carried out during the 1970s and 1980s. The current format of national conferences emerged in 1986, when the eighth National Health Conference took place in Brasília. Members of social movements, neighbourhood associations and popular movements came to Brasília for national conferences. This unanticipated involvement generated a new format for councils in Brazil (Avritzer, 2009). After the eighth National Health Conference, the health movement organized a popular amendment presented to the National Constituent Assembly.6 The amendment included forms of participation at the national level, but it did not specify the format (Lima et al., 2005). After the enactment of the 1988 Constitution, Law No. 8080 forecast

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councils and further national conferences on health. This is the contemporary origin of policy councils in Brazil. Policy councils proliferated in the areas of health, social assistance, urban policies and child and teenager issues during the 1990s. They were initially implemented in large cities that had strong social movements and professional support for these policies (Avritzer, 2010). They were later expanded to most Brazilian cities. A standard council has approximately 20 members, half of them representing the public administration and the other half nominated by civil society ­associations. The number of councils in large Brazilian cities increased from between 6 and 14 councils (in areas required by law) during the 1990s to an average of 20 to 25 councils in the 2000s (Table 4.1). The expansion of councils has made social policies in Brazilian cities more efficient and less unequal (Avritzer, 2010; Touchton and Wampler, 2014). The main reason why councils make Brazilian cities more efficient is because they work well in spite of variation in public administration. In the largest Brazilian cities, the implementation of councils is generalized and their efficiency varies little with changes in administration, with a few exceptions.7 Mid-sized cities have the most successful councils8 according to the available data. Because mid-sized cities have administrative and financial capacities, the performance of their social policies can be evaluated according to the strength of their councils.9 In a previous book (Avritzer, 2010), I classified 40 Brazilian mid-sized cities according to the strength of social participation and compared the performance of social policies in these cities according to the larger or smaller presence of councils in these cities. I purposely included in the sample cities with similar demographic and economic characteristics, following Baiocchi et al. (2011). As Table 4.2 shows, the number of councils is a good indicator of social policies in the areas of health and education. Mid-sized cities with a large number of policy councils exhibit two main differences from cities with fewer councils. The first is that they concentrate a higher number of public employees in social policies in comparison to the number of employees in the bureaucratic machine. Local administrations in Brazil concentrate public personnel in the administrative machine and usually care little for hiring specialized personnel for the provision of social policies. Cities with more participation also show better performance in three key areas of social policy, namely, education, social assistance and health

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Rio de Janeiro Petrópolis Volta Redonda

Belo Horizonte Juiz de Fora Montes Claros Uberlândia

São Paulo Campinas Cubatão Sorocaba

Porto Alegre Novo Hamburgo São Leopoldo

Blumenau Chapecó Lages

Belém

Rio de Janeiro

Minas Gerais

São Paulo

Rio Grande do Sul

Santa Catarina

Pará

Source:  Avritzer (2010).

City

Municipality/State

6

13 12 16

20 14 7

13 16 6 7

21 20 7 3

22 13 7

—

1997–2000

7

17 20 19

21 15 10

19 27 6 8

24 22 — 15

26 20 10

—

2001–2004

10

23 22 20

23 19 15

13 29 6 8

28 25 20 17

27 21 10

—

2005–2008

Number of Councils per Administration

Table 4.1  Number of councils in cities with more than 100 000 inhabitants

8

18 18 18

21 16 11

15 24 6 8

24 22 14 12

25 18 9

—

Average Number of Councils

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Table 4.2  Comparison of cities with high, medium and low levels of participation Low Medium High Participation Participation Participation Health officials (per 1000  inhabitants) Education officials (per 1000  inhabitants) Social assistance officials   (per 1000 inhabitants) Number of enrolments in  basic education (per 1000 inhabitants) Number of municipal nurseries   (per 1000 inhabitants) Number of medical  consultations of SUS (per inhabitant, per year) Number of SUS beds   (per 100 inhabitants)

14.1

25.6

59.7

2

18.3

21

19.6

28.4

52.2

16.3

12.8

17.3

32

35

56.7

0.65

1.5

1.6

1.87

1.66

3

Source:  SUS, Sistema Único de Saúde (Unified Health System).

(Avritzer, 2009; Pires and Vaz, 2010). Thus, councils make policy in large and mid-sized cities in Brazil more effective. The same argument can be expanded to the Brazilian federal government. Vaz (2014) studied Brazilian federal government ministries from the perspectives of both bureaucratic efficiency and implementation of participatory policies. Brazil has three types of ministries: (1) those in which the political system determines all the important policies and there is no bureaucratic career; (2) those in which there is a sharp insulation of policy from participation, but there is also a clear bureaucratic structure; and (3), those where bureaucratic structures interact with participatory structures such as councils, public hearings and national conferences using the umbrella concept of state and society interfaces (Vaz, 2014; see also Hevia and Isunza, 2010). Vaz (2014) analysed the following ministries: Education (MEC), Social Development (MDS), Regional Integration (MINA), and Sports (ME). Table 4.3 shows the different presence of participation and state and society interfaces in the Brazilian federal government.

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42.8 10.1 31.5 15.6 100

36.5 8.4 100 148.81

Public Hearings

37.6 17.4

Sources:  Sigplan (2010); Vaz (2014).

Infrastructure Economic  development Social protection Other Total Chi-square (18)

Ombudsman

30.8 20.3 100

33.0 15.9 33.9 24.5 100

26.4 15.2

Public Meetings with Consultation Interest Groups

51.0 17.1 100

19.9 12.1

Policy Councils

52.4 16.7 100

11.9 19.0

Conference Discussions

37.5 17.9 100

23.9 20.7

Other

Table 4.3  Presence of participatory interfaces in different areas of the Brazilian federal government, 2010 (%)

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Table 4.4  Proportion of public policy programmes that achieved at least 80 per cent of their original aims Agency (%)

2004 2009

MDS (social development)

MEC (education)

ME (sports)

MINA (national integration)

20.0 87.0

42.9 75.0

7.7 57.1

6.3 50.0

Source:  Vaz (2014).

In spite of the fact that Vaz did not use just councils in his conceptualization, all the other interfaces that he analysed are linked to accountability or to what I refer to as participatory accountability, namely, hearings, public audiences and ombudsmen. In all these cases, we see a sharp differentiation at the federal government level in terms of the presence or lack of participation. The area of rights and social protection10 has policy councils in more than 50 per cent of the ministries and their policy programmes. It also has a presence of conferences in more than 50 per cent of the cases. The small percentage of participatory interfaces includes ombudsmen and public audiences. If we compare these numbers with the presence of councils and conferences in two key areas, infrastructure and economic development, we see the difference in the presence of institutions that might make the state more accountable: the area of infrastructure has less than 20 per cent of councils in its programmes or ministries and an even smaller number of conferences. It is beyond the aim of this book to analyse the political implications of these data, but it should be noted that the current political crisis in Brazil started with the revelation of corruption in the area of infrastructure (Avritzer, 2016a). When we compare performance of these areas, we see that only ministries with councils and other interfaces between state and society achieve more than 80 per cent of their planning aims (Table 4.4). Thus, it can be concluded that local councils and other participatory forms of accountability introduced during the recent past decades in Brazil can be considered successful on at least three levels: in mid-sized cities, in large capitals and at the federal government

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level. Most of the analyses of these forms of innovation (participatory accountability) do not explain why participation has produced better results than no participation; they simply show statistical correlations. In the final section of this chapter I will provide an explanation for the success of participatory accountability, but first I will discuss similar cases in Mexico and Bolivia.

COUNCILS AND CITIZEN MONITORING IN MEXICO AND BOLIVIA Mexico and Bolivia share similarities and differences in their evolution of democratization and the formation of councils and citizen monitoring institutions (Dagnino et al., 2006; Hevia and Isunza, 2010; Olvera, 2003). Both countries had social revolutions that destroyed a large part of the previous political order (Klein, 2011; Knight, 1967; Malloy, 1970). The aftermath of revolution in the two countries led to different political processes. In the case of Mexico, it led to a top-down corporatist state that ended in the most lasting authoritarian regime of the twentieth century (Olvera, 1995). This regime was based on a constitutionally sanctioned corporatist structure (Schmitter, 1971) that cannot be considered a structure of social participation. Participation emerged in Mexico during the transition to democracy, which saw the emergence of citizen institutions such as Alianza Cívica (Civic Alliance; Aguayo, 1995) and the emergence of the notion of a civil society or citizen councillor or monitor. This notion emerged with Alianza Cívica and passed through many changes before evolving into a system of monitoring by citizens (monitoreo ciudadano) (Hevia, 2013). Mexico democratized in 2000 through an electoral and partial process of transformation of political institutions. The fact that the only impacted elements of Mexico’s democratization were electoral rules and that democratization took place through the electoral victory of a conservative candidate who never had a majority in Congress restricted the opportunities for deepening democratization. It is in this context that I will analyse the role of consejales (councillors) and monitoring in Mexico, showing that the lack of democratic structures created problems for the effectiveness of important institutions such as the Federal Electoral Institute (Instituto Federal Electoral – IFE) in the postdemocratization period.

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The case of Bolivia is completely different. The revolution, despite the Revolutionary Nationalist Movement (Movimiento Nacionalista Revolucionario – MNR) being much stronger electorally11 and having a huge grassroots basis, was much less successful than in Mexico and could not completely institutionalize a new power structure (Klein, 2011). At the same time it generated a strongly organized trade union movement and later a strong rural network of indigenous organizations that have not been able to halt the political instability in the country (ibid.). After several changes of government, an authoritarian regime was stabilized with the government of Hugo Banzer, which coincided with the Latin American move in the direction of authoritarianism (Linz, 1973). Bolivia democratized during the early 1980s at the same time as the Southern Cone countries. Yet it kept an electoral system in which, lacking absolute majorities, Congress nominated the president. Víctor Paz Estenssoro (the leader of MNR) and Hugo Banzer were presidents during the 1980s, a period in which the maximum that could be achieved by democratic power was the halting of hyperinflation (Gammara, 1996). The informal pact between Estenssoro and Banzer could halt inflation but could not democratize authoritarian and top-down state structures (Gammara, 1996, pp. 73–4). This task was achieved during the 1990s when Gonzalo Sánchez de Lozada became p ­ resident. The Popular Participation Law (Ley de Participación Popular – LPP) was the result of a long process of organization at the local level. By the time decentralization was approved, 22 laws on the theme had already been proposed. Social participation through councils in Bolivia is the result of two integrated processes: the LPP and the constitution-making process during the first Evo Morales administration. The LPP was the result of the long process of resistance of indigenous and rural populations who needed to negotiate public policy demands with the central state. The Bolivian LPP (1994) was a key aspect in the process of change of the Bolivian state. The law recognizes in its first article the need to integrate isolated indigenous and rural populations into the country’s political life. The Bolivian 2009 Constitution maintained all the elements of the LPP in Articles 271 and 272. Bolivia and Mexico are different cases in relation to councils, ­participation and accountability. In the case of Mexico, as I will show, the insufficient democratization of state and society relations weakened accountability and even the most successful case

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of an independent institution, the IFE, was reversed. In the case of Bolivia, the limited democratization approach in the 1980s was broadened through the LPP and the 2009 Constitution. In the next subsections, I will describe and compare the two cases. Comités de Vigilancia in Bolivia: A Successful Form of Participatory Accountability Participatory accountability in Bolivia has evolved through the creation of institutions of popular participation from the bottom up. The process of creating these institutions has taken several decades and has involved different governments with various political orientations. The LPP of 1994 was enacted during the Sánchez de Lozada administration and was the result of decades of political debate. The LPP decentralized 20 per cent of all central government revenues to local government, making the Bolivian state present in some communities for the first time since independence (Gray-Molina, 2001). The LPP was complemented by legislation enacted later, including the Municipalities Law (Ley de Municipalidades) and the Dialogue Law (Ley del Diálogo) (Ayo, 2004). These political movements in the direction of decentralization represented different civic and political movements and involved various parties such as the MNR and Nationalist Democratic Action (Acción Democrática Nacionalista – AND). They also represented different regions in Bolivia from Santa Cruz and the Media Luna to Cochabamba (De la Fuente Jeria, 2010, p. 5). The LPP created approximately 16 000 civil society institutions and social movement organizations (organizaciones territoriales de base – OTBs) to establish community priorities. The law represented many advances, but the most important was the creation of administrative references for the rural communities. Prior to the LPP most rural communities had to relate to an abstract and distant state in La Paz that was very centralized and difficult to reach unless there were huge mobilizations toward the centre. The LPP changed this situation by decentralizing the state prerogatives on health, education and culture and creating incentives for individuals to control government at the local level. In addition to creating OTBs, the LPP established comités de ­vigilancia (monitoring or oversight committees) (Oxhorn, 2001). These committees are made up of canton representatives (the ­smallest

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administrative unit in Bolivia) and have their members elected by all grassroots territorial organizations. The LPP introduced two new designs that were key in the democratization of local politics. The first is the creation of a mechanism to coordinate the actions of the new local authority with the local community; the second is the creation of the concept of a social-cultural unity that gave opportunity for those not represented to create their own form of representation (Halkyer, 1999).12 The LPP and the comités de vigilancia are perhaps the key participatory and monitoring institutions in Bolivia today in the role that they play in health and education policies, which were also decentralized. The implementation of the LPP generated immediate changes in the political configuration of Bolivia. The most important change started during the 1995 municipal elections. It is estimated that in these elections, among the 1624 municipal mayors and councillors elected, two-thirds were peasants and indigenous peoples (Klein, 2011, p. 258). In many departments, particularly in Oruro and Potosí, peasant unions elected indigenous mayors, setting off a very meaningful process of administrative change (Gray-Molina, 2001, p. 64). Thus, in the case of Bolivia, decentralization was more than a public policy decision; it was an act of democratic inclusion. It became even more meaningful as new funds became available for public policy. Before the LPP was enacted, 308 municipalities shared 14 per cent of the decentralization funds, whereas three large cities received 86 per cent of those resources. After the LPP there was almost an inversion of these numbers – the 308 municipalities received 73 per cent of the total decentralization resources (Faguet, 2014, p. 11). Nevertheless, issues of effectiveness and operation of forms of policy-making and accountability still exist. The main administrative decisions of the LPP were (1) the transfer of funds from the central government to municipalities; (2) the transfer of responsibility from the central government to local administrations; and (3) the creation of comités de vigilancia. The administrative organization of these institutions is key to the importance of participatory accountability in Bolivia. Municipal council members are elected directly and they elect the mayor indirectly. At the side of council members stand the comités de vigilancia. Each municipality has a group of grassroots organizations that are the result of the structure of incentives of the LPP. These groups vary according to interest and ethnic organization. Thus, they include neighbourhood

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councils as well as pre-Columbian ayllus and malkus13 (Faguet, 2014, p. 9). Decentralization also involved an increase in funds for municipalities, the creation of a new local political dynamics and, last but not least, the implementation of public policies at the local level with the employment of these new funds. Faguet (2014) presents different results in relation to the new priorities of Bolivian municipalities. The first is clearly a decrease in the investment in certain public goods. Thus, the total investment in paved roads and sanitation decreased, whereas the investment in health, particularly in the reduction of infant mortality and in the increase in prenatal care, was greatly expanded. Gray-Molina et al. (1999) inquired into the role of different institutions created by the LPP in the improvement of health services14 in Bolivia. They correlated performance in the health sector in Bolivia, the sector with the best results after decentralization, with the presence or lack of corruption. They surveyed doctors, nurses and patients on the topic of corruption in different institutions in Bolivia, from the presidency and the Supreme Court to public hospitals. Analysis of the data they collected suggests that corruption in public hospitals is between 15 and 20 per cent lower than in institutions such as the Supreme Court or municipal governments.15 The authors suggest that voice in citizens’ health boards is what accounts for the increase in quality of healthcare and for reduced levels of corruption with regard to other sectors or institutions in Bolivia (Gray-Molina et al., 2001, p. 30). Health and education policies changed as a result of the LPP, resulting in improved access for the poor to healthcare services and greater opportunity for multilingual education. The most obvious explanation for success is the decentralization of resources, but many authors have argued that this does not provide a full explanation. The comités de vigilancia created a system of accountability that has to be taken into consideration. This system of accountability is one of the largest created through legislation and involves more than 16 000 local organizations. In addition to sponsoring the large formation of civil and ethnic organizations the LPP also provides incentives for legalization and integration into the accountability system of indigenous forms of control and accountability. All these elements together account for a system that provides more than voice in the organization of public policies. There is also bottom-up pressure for a greater access to public goods. Despite its merits, the participatory accountability system created

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in Bolivia is not without its limitations. A few authors point out that the territorial geographical design of autonomy does not give a full account of the territorial or extra-territorial logistics of the indigenous populations (Assies, 2010). Though this critique is relevant and the process of participatory accountability may not have a full answer to this issue, participatory accountability is still very democratic and able to improve the access of the poor to public goods. A second critique is the use that conservative sectors made of autonomy to negate the popular indigenous and multiethnic government at the central level. Since the election of Evo Morales, autonomy and decentralization have been used as a form of denial of the influence of the Bolivian central government in the Media Luna region (Mayorca, 2006, personal correspondence). Though it is true that the opposition to Evo Morales has targeted more departmental autonomy than local autonomy, there is no doubt that all autonomies challenge the central government or can be used against it. However, in the Bolivian case, the benefits for the poor far outweigh the problems that autonomy may generate. The case of Bolivia shows that participatory accountability, understood as independence of public policy from elections and the incorporation of citizens into public policy implementation, is the stronger democratic innovation that emerged in Latin America. It is stronger for two reasons: it draws on previous political practices in the region (Van Cott, 2008), making them easier to implement, and it draws on a strong overlap between citizen participation and reasons for making policies such as health or education stronger. Thus, they are more efficient because of citizens’ involvement. This positive correlation is only broken when the political system purposefully breaks with the independence of accountability mechanism as we will see in the Mexican case. Councils in Mexico: From Ciudadanización to Party Politización Mexico’s democratization was different from all other Latin American paths because of its focus on overcoming electoral fraud. The Institutional Revolutionary Party (Partido Revolucionario Institucional – PRI) regime held regular elections from 1929 on and it was only in the mid-1980s that the general public became aware of electoral fraud – in the 1985 elections in the state of Nuevo León, in the 1986 elections of Chihuahua and then in the national elections

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of 1988. This created an argument in favour of public monitoring, which emerged during the early 1990s. The emergence of the Federal Electoral Institute (IFE) was the most important breakthrough in Mexico’s process of democratization since it was able to end electoral fraud (Avritzer, 2002). The IFE was the direct result of public action against electoral fraud. However, the specific path of the transition would later prove unable to democratize the most authoritarian state structures and even IFE’s process of ciudadanización (citizenization), has been broken. The emergence of the IFE was marked by the idea of ­ciudadanización, the process through which citizens took charge of monitoring elections and in which the high deliberative rankings of the institution were occupied by citizen councillors, a process that demonstrates the positive elements of public and participatory accountability. The ciudadanización of the IFE was a two-track process in which two results were progressively achieved: (1) it broke the control of the powerful Secretary of Governance (gobernación) over the IFE, and (2) it broke the connection between the councillors and the grassroots in order to deprive the PRI of its power to appoint ballot officers at the local and regional levels (Avritzer, 2002). With the 1996 electoral law, councillors became autonomous from the Secretary of Governance, and the long-standing control of the electoral process by the government and the political parties was broken. According to the 1996 electoral law, the IFE consisted of a General Council, composed of a president councillor, eight electoral councillors and an executive secretary. Political parties had councillors with voice but without a vote. It was expected that this path to democratization would introduce councillors at the state level, but because of other factors related to the Mexican transition, this expectation did not materialize. Mexican democratization was atypical in relation to Southern Cone and Andean democratizations (Dominguez and Lowenthal, 1996; Stepan, 1989) for two reasons. First was the deep political and juridical continuity between the PRI’s regime institutions and the democratic institutions after 2000. It has not been possible to supplement the electoral victory of the National Action Party (Partido Acción Nacional – PAN) with a process of refurbishing political institutions. This is not to say that the Constitution was not changed after the year 2000. On the contrary, the Mexican Constitution is constantly being reformed but not on topics that would change

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the organization of the political system and democratize the state (Negretto, 2013). Second, the fact that Mexico has had an atypical political dispute among three parties precluded the possibility of a broad constitutional reform. The PRI kept a de facto veto power over the system and the councillor mechanism was not extended to other areas but remained insulated at the IFE (Ackerman, 2007). The first years of democracy in Mexico involved a strong attempt to expand the IFE’s model or the accountability model to other sectors in spite of the fact that the Mexican Constitution does not refer to rendición de cuentas (accountability). The most ambitious of these attempts was the enactment of the Ley Federal de Transparencia y Acesso a la Información Pública (Transparency Law) in 2002 (Hevia, 2013). Mexico added an article on transparency to its constitution in 1977 (Lópes-Ayllon, 2005), and democratization created the conditions for making the article effective. The new Transparency Law, enacted when the climate of democratization was still prevalent in the country, was an attempt not only to give individuals all the information they required but, even more important, to make public policy and public policy decisions transparent (Ruiz Mariscal, 2004). The law opened the space for a new institution, the Instituto Federal de Acceso a la Información Pública (Federal Institute for Access to Public Information). This was perhaps the most important innovation of post-democratization Mexico because it created an institution that could evaluate on a citizenship basis where the government was giving access to public information. Two important elements of transparency emerged when the Transparency Law was enacted and are at the root of the debate on accountability. The first issue was the independence of the mandates of the appointed individuals and the participation of the population/ citizens in the exercise of this autonomy (Lópes-Ayllon and Ruiz, 2007). This element of transparency was aimed at insulating agencies from the political system (ibid., p. 118). The second element was much more important and takes us to the heart of the inability of Mexican democracy to develop independent formats of accountability. It is linked to the difficulty in breaking with a centralist tradition in which the president and the secretaries have total control over regulatory agencies. In this sense, institutions such as accountability agencies have had their power directly controlled by the government. It was with the intention of breaking with this structure that the idea of detaching the subordination created by administrative law

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emerged in order to give autonomy to agencies. Article 17 of the Ley Orgánica de la Administración Pública (Organic Law of Public Administration) has had the aim of carrying out these changes to make accountability independent from the government structure in the sense discussed in the introduction to this chapter. However, there was a high level of resistance to the independent operation of accountability structures in Mexico, especially in the case of the autonomy of the actions of the Federal Institute of Access to Public Information (Olvera, 2012, p. 119). Together with the dispute on making accountability agencies independent, a second process in Mexico with strong implications for accountability was the enactment of a new electoral code that deeply revised the ciudadanización of the IFE. The charge of electoral fraud in the 2006 elections in which Felipe Calderón defeated Andrés López Obrador by a very narrow margin (Schedler, 2006) led to a process of constitutional reform and the enactment of a new electoral code in 2008. The 2008 electoral code made the following changes to the electoral system: it set limits on executive branch publicity during the electoral period and it renewed mandates of IFE councillors in phases (Serra, 2011, p. 79). However, the most important change of the 2008 electoral reform was the weakening of the IFE’s autonomy. The 2008 electoral reform that created the National Electoral Institute (Instituto Nacional Electoral – INE) was based on diminishing citizens’ presence in the IFE’s controlling body (controladoria). The problem with the controladoria is not that a control body does not make sense; rather, the design of the controladoria was disempowering because it responded to the legislature and the parties and not the citizens in general (Serra, 2011, p. 80). Thus, through the idea of a controlling body, the influence of political elites in the federal electoral system was reinserted. The idea of a non-party councillor was effectively tabled at the INE, with the three parties making bilateral agreements for the indication of councillors. Thus, the interesting issue about citizens’ control in Mexico is that it does work in terms of the emergence of designs that allow citizens to control and democratize institutions. Both the IFE design and the design of the Federal Institute for Access to Public Information could have allowed more citizen control of two key policies in Mexico, namely, electoral organization and access to public information. Although in Mexico there are good examples of citizens’ control, they lack effectiveness and acceptance by political parties

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Table 4.5  Patterns of operation of participatory accountability institutions Origins of Citizen Participation in Accountability Institutions

Public Policy Relationship Results Between Democratization and Citizen Participation

Brazil

New constitution

Bolivia

New law of participation and new constitution Constitutional amendment whose implementation became dependent on the political system

Increased and it was initially accepted by the political system Increased and it was initially accepted by the political system The political system (particularly the PRI) resisted citizen participation in accountability institutions

Mexico

Independence from the electoral system Independence from the electoral system Politicization of election results allowed the reversal of autonomy

Note:  PRI = Institutional Revolutionary Party.

and government administrators (Hevia, 2013). Thus, the Mexican problem is a dispute over the elements of citizens’ control with a political system that at best has gone through partial democratization and still resists the controls of accountability to create mechanisms of ciudadanización of public policies. Table 4.5 compares the Brazilian, the Bolivian and the Mexican models of accountability. Brazil, Bolivia and Mexico took on different types of participatory accountability. All of these cases point to the importance of constitution-making for the increasing participatory accountability, a form of democratic innovation that makes control partially independent from the elections and transfers a large part of the control to citizens. Even though these forms of participatory accountability in Brazil, Bolivia and Mexico have produced excellent results, they are viewed with suspicion by the political system. Participatory accountability worked well in the three countries at one point – the point of maximum democratization intensity. The reaction to this innovation took place in Mexico after the 2006 elections, in Bolivia with the  ­election of local Movement for Socialism (Movimiento al

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Socialismo – MAS) mayors and is taking place in Brazil since the rejection of Decree No. 8243,16 which tried to institutionalize participation at the level of the federal government. All of these examples show that participatory accountability also faces limits.

CONCLUSION: PARTICIPATORY ACCOUNTABILITY POTENTIALITIES AND LIMITS Among the three forms of innovation discussed in this book, participatory accountability can be considered the most successful. It is the most successful because it substitutes the voice or exit dilemma by creating a permanent body of individuals that can check public policies instead of exiting representation. Participatory accountability is based on two important ideas: (1) public policies can be state ­policies; and (2) citizens are the best watchdogs for these policies. Both ideas are behind the most successful cases of participatory accountability in Latin America – the policy councils in Brazil, citizen councils in Mexico and comités de vigilancia (monitoring or oversight ­committees) in Bolivia. The three institutions are based on a similar idea, namely, that policy advancement needs an independent body that makes policy practically independent from bureaucracies generated by electoral results. The three institutions – policy councils, citizen councils and comités de vigilancia – can be considered the most successful democratic innovations particularly in the area of social policies. Councils in Brazil generated more efficiency in health and social assistance policies. Ciudadanización in Mexico exerted pressure to establish democratic elections and public access to information. Comités de vigilancia in Bolivia generated better health policies in the cities in which they are active. In sum, participatory accountability, that is, the use of citizens to control policy, is one of the most successful democratic innovations in Latin America. Its success may be grounded on the fact that the practice of citizens’ control is very old in Latin America and is understood by the population and often accepted by the political system. Its most successful cases are the ones in which the political system accepts and interacts positively with forms of participatory accountability, understanding that control is part of the exercise of democratic sovereignty.

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Yet, many times the political system creates tensions with the implementation of participatory accountability. These tensions should be analysed in order to understand the limits of democratic innovation. In all three cases analysed in this chapter, the political system at one point supported participatory accountability or at least agreed to its implementation and at other moments acted to disempower it. In Mexico, participatory accountability subsisted for a shorter period, compared with Brazil and Bolivia. It did not survive the first democratic electoral process due to the attack by political parties on these institutions. The cases of Brazil and Bolivia are different. In the case of Brazil there has been a high degree of success in these forms of participatory accountability, at least in cities with a population of 100 000 people or more. In the case of Bolivia, success has taken place in small cities that did not previously receive federal funds. In both cases empirical research shows that councils and participatory forms of accountability produce efficient results in both large and small cities depending on the presence of structures that can force power-holders to abide by the existing laws. In the case of Brazil these laws are the health and social assistance organic laws.17 In the case of Bolivia, the Law on Popular Participation allowed for the creation of comités de vigilancia. Thus, the success in the implementation of policies is part of both cases. However, we can see in both cases to a different degree the same process of political limitation of accountability structures that was pointed out for Mexico. In the case of Brazil two different types of limitation emerged. The first was a self-limitation by Workers’ Party administrations through which accountability was limited to certain areas of social policy and was not expanded to the area of infrastructure where old practices and lack of control were maintained by the Workers’ Party. The second was a reaction of politicians in the National Congress to councils and to the expansion of councils through the Law Decree No. 8243. This conflict signalled the end of a period of supra-party consensus on participation in Brazil. In the case of Bolivia, the limits of participatory accountability or of councils in making politicians accountable is slightly different. Bolivia has had a very strong process of implementation of comités de vigilancia during the 1994–2009 period. In this period results at the level of health policies and education were extremely positive. The LPP in Bolivia created space not only for the change of the access for the poor rural population to public goods but also

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to political power. A few years after the implementation of the law, indigenous leaders were elected at the local level and later joined the MAS, the party/social movement that elected Evo Morales as president. However, MAS politicians several times preferred to support the central government than to exercise accountability at the local level; the comités de vigilancia often did not fulfil their role after 2009 (Mayorca, 2016, personal correspondence). In conclusion, participatory accountability is among the most successful forms of democratic innovation and the one that has produced the best experiences in Mexico, Brazil and Bolivia. Its success is linked to the relative independence of elected bodies. The different cases of reversal of independence are similar and the Mexican case can be differentiated only according to the level of reversal that should be attributed to the incomplete path of democratization, which allowed the PRI to keep many prerogatives and the Party of the Democratic Revolution (Partido de la Revolución Democrática – PRD) not to defend a full process of democratization. However, Brazil and Bolivia face similar dangers that even a democratic constitution cannot curb. In this sense, the political system remains the most contentious institution in the process of allowing and expanding democratic innovations, as I will show in the book’s concluding remarks where I will analyse the experiences of councils and participatory budgeting.

NOTES  1. Hanna Pitkin was one of the first authors to relate representation and accountability at a time when accountability was about monetary accounts and the administrative processes related to them. Pitkin connected the debate on accountability to the debate on representation, but she did not accept control of representatives based on the idea of accountability. For Pitkin, ‘to represent simply means to act after authorization or to act before being held to account’ (Pitkin, 1967, p. 59).  2. It is worthwhile to point out the divergence between Stokes and Przeworski on the capacity of the electoral institution to enforce accountability. Przeworski, in spite of his early statement that citizens can sanction representative government by ousting incumbents from office, retracted to a more sceptical formulation in his later work (see Przeworski, 2010).  3. It is worthwhile to differentiate participatory accountability from societal accountability, the very influential concept advanced by Peruzzotti and Smulovitz (2006). Societal accountability is a much broader concept that shows that there are many non-electoral and yet vertical means of producing accountability. The concept encompasses social actors’ mobilizations and institutions. Participatory

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 4.

 5.

 6.

 7.

 8.

 9. 10. 11.

12.

13. 14.

15.

The two faces of institutional innovation accountability could be considered one dimension within societal accountability, a dimension linked to public policies. I do not consider the Venezuelan Constitution a new democratic experiment for several reasons, among them the fact that the Constitution allowed the intervention of the executive branch on the judicial branch. In the case of Venezuela, participatory legislation has also been politicized by the Chavists (see Lópes Maia, 2011; McCoy and Myers, 2006). The Brazilian legal system requires infraconstitutional legislation to enforce many aspects of the Constitution. The Constitution itself required some of this legislation where it stated that ordinary law will define aspects involved in this chapter. In other cases the Constitution’s chapters were too general to be selfenforcing. This was the case of the chapters on health and social assistance (see Avritzer, 2009). The Brazilian National Constituent Assembly accepted popular amendments. These amendments, with more than 35 000 signatures, were presented to the Systematization Committee and could be defended on the floor of the Assembly. Sergio Arouca defended the health movement amendment. Other popular amendments were presented, including one on urban reform presented by Ermínia Maricato (see Whitaker, 2003). These exceptions took place only in very politicized right-wing administrations, of which there were few in Brazil before 2012. São Paulo had one such administration, the Celso Pitta administration. Pitta broke relations with councils in a project to break with the Sistema Único de Saúde (SUS), the Unified Health System in the city (see Cornwall and Coelho, 2006). Touchton and Wampler (2014) make a similar argument for participatory budgeting. They argue that participatory budgeting makes social policies more effective, particularly those policies related to the struggle against infant mortality. They also studied cities with more than 100 000 inhabitants. Thus, the argument that cities with participatory institutions yield better administrative performance works well in several different policies. Most small cities in Brazil do not have financial autonomy. They are utterly dependent on the federal and state government for the transfer of resources. This makes the improvement in public services very unlikely (see Avritzer, 2010). The 1988 Constitution created the social protection system in Brazil. This system encompasses health, social assistance and social security. The MNR assumed power in 1952 after being electorally victorious in 1949 with the candidacy of Víctor Paz Estenssoro. In July 1952, the government established universal suffrage, with neither literacy nor property requirements. In the first post-revolutionary elections in 1956, the population of eligible voters increased from approximately 200 000 to nearly 1 million voters (see Klein, 2011). In spite of the LPP’s attempt to create representation at the local level, many indigenous communities complain that they are not covered by the administrative divisions created by the Bolivian state and remain outside the LPP (see Assies, 2010). Ayllus are extended family organizations that existed in the pre-Columbian region. Malkus are territorial entities of the Aymara culture that represent the place where a deity is located. In addition to the LPP, there has been legislation to decentralize health services. Decree No. 24237 created the Sistema de Salud Descentralizado y Participativo – the Decentralized and Participatory Health System (see Giussani and Ruiz-Mier, 1997). The question they asked patients was ‘How frequent is corruption in the following places?’ This is a very good indicator of corruption because there has been a

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tradition of asking for money in order to avoid lines in public hospitals. The fact that they asked patients also makes the results more reliable (see Gray-Molina et al., 2001). 16. Decree No. 8243 signed by President Dilma Rousseff in Brazil in May 2014 ­represented the first important reversal of participatory policies at the federal level and a change in course of National Congress support of participatory policies. 17. ‘Organic law’ in the Roman law tradition is a body of law or system of law that constitutes the foundation of a specific government policy.

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5. Innovation in the wrong direction: The Brazilian and Colombian constitutional traditions, Ministério Público and the courts INTRODUCTION Democratic innovation was originally intended for the organization of political institutions or for the organization of public policies. The theory of institutional innovation assumes that there are different ways to incorporate citizens’ input in democratic institutions (Avritzer, 2013; Hevia and Isunza, 2010; Smith, 2009). Some scholars proposed new interfaces between civil society, social actors and the state (Hevia and Isunza, 2010). Others proposed altering the deliberation and participation processes that gave citizens a larger leeway in political issues or in public policy issues. This discussion gave rise to several attempts to introduce more deliberation or more participation in the design of public policies (see Chapters 3 and 4). Many of the changes that were enacted have been successful and provide grounds to defend institutional innovations as having the capacity to deepen democracy. In Brazil and in many South American countries, one important issue in the debate surrounding institutional and democratic innovation is the attempt to introduce innovations in judicial institutions (Acosta, 2012; Peruzzotti, 2012). There are two main differences between political and democratic innovation in the area of politics or political institutions and innovation in the area of judicial organization. The first is the role of professional participants. Unlike in the political system, the juridical system in Brazil and many other Latin American countries does not have a strong presence of electoral members.1 In addition, there is a strong Latin American tradition 100

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of family and patrimonial occupation of positions in the judicial system, and this tradition has heavily influenced the occurrence of judicial innovation (Adorno, 1988; Coslovsky, 2015). The second difference between judicial innovation and democratic innovation is that very few among these new judicial formats are participatory in nature.2 In all cases, especially those related to the Supreme Court and Ministério Público (Public Prosecutor’s Office), the innovation was dependent upon the initiative of professional or corporate entities. In the end, the dependence of innovation on these entities reveals a risk to the use of innovation: is judicial innovation narrowing democracy or deepening democracy? In this chapter I will first explain the role of the Brazilian Supreme Court and the Ministério Público in the process of judicial innovation, in particular those innovations occurring in Brazil during the past decade. I will divide this period into two parts and more thoroughly examine each period. The first period will reveal how both the Supreme Court and the Ministério Público acted in the direction of broadening rights in a non-participatory and non-deliberative way. I will also show the evidence surrounding a dangerous corporatist faction, who opposed the participation in political institutions in this process. I will then discuss the second period, 2012 to 2016, in which the judicial system decided to criminalize the political system as a whole, but in particular the Workers’ Party (PT). Finally, I will contrast judicial innovation in Colombia with that in Brazil, focusing on the political dangers of judicial innovation but not disregarding the merits of successful cases of judicial innovation that I see in the Colombian case.

THE 1988 BRAZILIAN CONSTITUTION AND DEMOCRATIC INNOVATION During the past 100 years, Brazil has weathered more authoritarian than democratic seasons and moments of contention (Schwarcz and Starling, 2015). Starting in the late 1970s, Brazil experienced an intense process of social and political change, which ultimately led to democratization and the crafting of a new Constitution in 1987–88 (Avritzer, 2002; Kingstone and Power, 2008; W.G. Santos, 1987, 1993; Stepan, 1989). The Brazilian Constituent Assembly was highly democratic, even accepting popular amendments proposed by civil

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society associations3 (Whitaker, 1994). The Assembly also has been open to corporations and the National Council of the Ministério Público (Conselho Nacional do Ministério Público – CNMP) has been very active in the Constitution-making process.4 This resulted in a progressive pact between the centre and left sectors and the relative isolation of conservative actors5 – a positive occurrence for the newly democratic Brazil. The basic structure and content of the Brazilian Constitution was influenced by the concept of political innovation. The document begins with a chapter on civil and political rights. When this first chapter was written, the content was protected from any revisions by the executive branch or alterations through judicial review. This is the only standard part of the Brazilian Constitution in terms of classical theory (Dworkin, 1986; Friedrich, 1967; Neumann, 1964). After being written, the Constitution then established a structured division of powers that altered the balance of the three main branches of government and almost created a fourth one: the Ministério Público. In terms of this balance, the Constitution maintained the tradition of a strong executive branch of government6 and also broadened the prerogatives of the Brazilian judiciary through the institutionalization of judicial review. Next, I will elaborate further on the most important elements of this new constitutional structure. In the first significant attempt to innovate institutionally, the 1988 Constitution gave the Supreme Court the capacity for constitutional revision, as stated clearly in Articles 102 and 103.7 Article 103 was a step forward, not only because it clearly stated the Supreme Court’s prerogative for constitutional revision but also because it broadened the scope of the actors who could go to court, including civil society actors. It created the judicial tool of Actions for the Declaration of Unconstitutionality (ADINs) and stated that all constitutional powers (president, president of the Senate and Congress, state governors) could argue for the Declaration of Unconstitutionality. In addition, Article 103 allowed political parties, voluntary associations and the Bar Association to propose ADINs. The aftermath of the 1988 Constitution was an explosion of litigation filing for constitutional review. As of 2011, the total number of ADINs filed is 1335; 458 of these challenged the constitutionality of actions or legal norms issued by the legislative branch and 877 challenged the constitutionality of actions or norms issued by the executive branch8 (Sundfeld et al., 2011). It is interesting to note who the

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majority of the actors filing ADINs have been: political parties, particularly opposition parties, who have demanded the declaration of unconstitutionality 344 times;9 and trade unions, who, particularly during the Cardoso government, challenged the constitutionality of many economic reforms. As I have shown, the Brazilian Constitution opened up new spaces for so-called impartial actors to engage in the political process (Rosanvallon, 2011, pp. 104–5). This was the point of departure for the establishment of new prerogatives of the judicial system and a new checks-and-balances structure. The Brazilian Supreme Court slowly started to revise executive branch decisions in many areas linked to social policies that received very detailed formulations by the Constituent legislator. However, from the very beginning the excess of litigation directed to the Supreme Court, on issues related to the organization of the political system, generated abuses in terms of checks and ­balances. Brazil has a very ‘backwards’ National Congress – a result of changes in the organization of the electoral system and reforms to campaign financing in the 1988 Constitution. A 1993 law on campaign financing that allows big companies to contribute 5 per cent of their revenues generated a system that clearly favoured large corporations (Mancuso, 2015). As of 2014, 19 corporations in Brazil have contributed more than 50 per cent of campaign financing in Brazil. Whereas Congress refused many times to reorganize the political system, the Brazilian Supreme Court took action to do so, which in turn boosted the popularity of the Supreme Court with civil society actors and improved public opinion of the courts. At times, the Supreme Court interfered in the Senate’s trials of politicians and enforced rules for the organization of party loyalty10 (outlined in 2008 as it judged ADINs 3999 and 4086, which responded to a suit filed by the Brazilian Public Prosecutor aiming at the loss of political mandates for MPs changing political parties). Civil society actors applauded such interventions from the Supreme Court, thus showing that its actions were in synchrony with public opinion. However, the ability for the Supreme Court to interfere began to suggest a d ­ angerous monopoly of one power, the judicial branch, at the expense of the legislative branch, which placed Brazil on a very dangerous road.

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THE 1988 CONSTITUTION AGENDA FOR SOCIAL RIGHTS AND THE PROCESS OF JUDICIALIZATION The new Constitution in Brazil redefined the role of the federal government, the role of states and the overall interaction between these levels of government. The Constitution joined together the federal government and the states in terms of social issues. The Brazilian Constitution greatly enhanced the social rights that existed in the country before 1988. In regard to health, the country moved from a segmented system that limited health provision to those in the formal labour market (W.G. Santos, 1979, p. 74) to a universal system (Van Strallen, 1992). In terms of social assistance, Brazil shifted from relying on charity for social assistance, to claiming social ­assistance as a right of citizens and a responsibility of the state (Cunha, 2009; Raichelis, 2000). Regarding urban policy, the Constitution ­empowered cities by giving the state broad prerogatives to allocate public land to the poor (Saule, 2005). These changes created a sharp conflict between the executive branch, civil society actors and the judicial system regarding how to create and implement policy in accordance with these new rights. The Brazilian executive and legislative branches reacted to the new social rights granted by the Constitution by formulating the necessary infraconstitutional laws11 to make these rights enforceable. Laws required for the implementation of the Unified Health System (Sistema Único de Saúde – SUS) (Laws No. 8080 and 8142) were introduced at the beginning of the Collor de Mello government and involved a great deal of negotiation in Congress, particularly over the articles on the participation of the population in the deliberation of health issues (Avritzer, 2009). The law required for the implementation of LOAS (Organic Social Assistance Law No. 8742 – the infraconstitutional law on the operation of the social assistance system) was approved in 1992 and required every city to have a plan to transform social assistance into a public policy (Cunha, 2009). Last but not least, the City Statute (Law No. 10.257) was approved in 2001, 13 years after the enactment of the Constitution, requiring every city with more than 20 000 inhabitants to have a participatory City Master Plan. Parallel to implementing the City Statute, the federal government pursued another policy to control expense caused by the broadening of rights during the constitution-making process, which

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was particularly necessary in the area of health. After the implementation of the Constitution in 1990, the political and economic question of how to finance the SUS first arose.12 The implementation between 1989 and 1992 was very contentious in budgetary terms because of the vast expansion in coverage that the SUS required. It is no exaggeration to state that the social agenda of the Brazilian Constitution has been the catalyst for the country’s significant development over the past 15 years. The Constitution created citizens from Brazil’s population and endowed each individual – man and woman – with rights. Additionally, the Constitution established an important new equilibrium in the country by transferring power from the federal government to the cities, the states and the judicial branch. According to Couto and Arantes (2006, p. 54), very few of the constitutional amendments approved between 1990 and 2016 in Brazil altered the basic organization of rights; most simply altered the organization of branches of power in their daily activities.13 The Brazilian judicial system and Supreme Court became very active in the enforcement of new social rights in the country, particularly those regarding healthcare. The new Constitution was not very specific in its definition of the right to receive healthcare. The Constitution stated simply that ‘health is a right for all and a duty of the state and shall be guaranteed by means of social and economic policies aimed at reducing the risk of illness and other hazards and at the universal and equal access to actions and services for its promotion, protection and recovery’. Although there is nothing wrong with this statement, the generality of the wording left room for the executive branch and the judicial branch to debate issues such as how health services should be organized.14 Initially, the judicial branch gave favourable decisions to experimental treatments,15 even expensive ones. The Brazil Health Ministry challenged these decisions at the Supreme Court. Gilmar Mendes, a very conservative judge, led the deliberation on the trial of an agravo de regimento [Bill of Review appeal], No. 175 AgR/CE. The trial resulted in one patient receiving medicine, called Zavesca, and compensation of 54 000 reais (US$18 000) per month. This was a very significant case of medical compensation in a newly reformed state. The Brazilian state proceeded to contend that health policy was a prerogative of the executive branch, and therefore the judicial branch could not interfere with it. The position of the Health Ministry was struck down by the Supreme Court, who stated that the legal system

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had the capacity, and the right, to interfere with the formulation of public policies (Sarlet and Molinaro, 2011, p. 32). Thus, the disputes regarding health policy continued between the Brazilian judicial system and the executive branch. The judicial system denied the exclusive authority of the executive branch to design public policies and to enforce the collective right of the majority. Again, civil society associations and advocacy non-governmental organizations applauded the decision that further increased judicial power in Brazil, thus denying the executive branch exclusive power in the formulation of public policies. The consequences in terms of power balance would only appear later.

MINISTÉRIO PÚBLICO AND THE ISSUES OF DIFFUSE RIGHTS AND CORRUPTION Another component that strengthened judicial institutions in Brazil was the increased authority given to the Ministério Público to remove elected politicians if deemed necessary. The Ministério Público is an institutional innovation of the Brazilian constitution-making process, which separated the defence of the executive branch of government from the defence of rights and legality. The Ministério Público is not bound by the judiciary or the legislative branch in its actions and the ministry has the power to fight corruption and defend the environmental interests and rights of indigenous populations. The process of forming an independent oversight agency in charge of the enforcement of diffused rights emerged during the National Constituent Assembly, in response to the demands from the procuradores (prosecutors) themselves (Carvalho and Leitão, 2010; Rojas, 2011). The three main roles of the Ministério Público according to Article 129 of the 1988 Constitution are to: (1) initiate (exclusively) public criminal prosecution; (2) ensure effective respect by the Public Authorities and by the services of public relevance for the rights guaranteed in the Constitution, taking the action required to guarantee such rights; and (3) institute civil investigations and public civil-suits to protect public and social property, the environment and other collective interests.

Article 127 of the Brazilian Constitution gives functional autonomy to the Ministério Público:

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[T]he Public Prosecution is ensured of functional and administrative autonomy, and it may. . .propose to the Legislative Power the creation and abolishment of its offices and auxiliary services, filling them through a civil service entrance examination of tests or of tests and presentation of academic and professional credentials, the remuneration policies, and the career plans; the law shall provide for its organization and operation.

Thus, the Constitution dangerously mixes two very different dimensions: the political autonomy of a legal institution and its functional autonomy, which includes the provision of expenses for its administrative organization and even the determination of prosecutors’ incomes. Doing so allows the Ministério Público to play its role as the general guardian of the law and also create a strong corporatist structure without external supervision, other than the Conselho Nacional do Ministério Público, a national council that confirms most of its decisions. The Ministério Público’s autonomy unleashed demands from other law enforcement institutions that desired their own autonomy, including the Brazilian Federal Police.16 The Ministério Público’s trajectory has been very similar to that of the Supreme Court. It started with progressive decisions with the aim of broadening rights and defending the environment. The Ministério Público then played a key role in the demarcation of indigenous land in Brazil during the 1990s and the early 2000s. The Ministério Público was a key actor in a prominent case of indigenous land demarcation in Brazil. Raposa Serra do Sol was a case in which the Brazilian Supreme Court, in 2009, validated the principle of continuity in the demarcation of indigenous land.17 The Ministério Público has also acted in important environmental issues, applying the constitutional principle of defence of diffuse rights. It acted against prominent mining companies such as Vale do Rio Doce (Brazil’s largest iron ore producer and the second largest in the world), whose operations had negative effects on river and water quality. In the states of Minas Gerais and Pará, where most of the mining in Brazil takes place, the Ministério Público took action to defend rivers and public landmarks as it also did in the Pico do Itabirito case. In these cases, the ministry sued large mining companies and initiated the process of restoring landmark areas (Ministério Público de Minas Gerais, 13 July 2010). Again, it is interesting to see the relation between sovereignty and judicial institutions in these cases. According to Brazilian law, it is the responsibility of the executive branch to oversee the licensing of mining activities. The problem

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is that licences are very easily obtained and the entire process lacks transparency and accountability from a higher state authority. The negative consequences of this are that the general public is exposed to polluted rivers, reduced rainfall and overall destruction of the environment, which frequently affects their livelihoods. When the Ministério Público entered into the contentious arena of public policy, the legal agency instantly became popular with civil society. What gained the most attention was not the fact that the Ministério Público was taking authority away from the political system, but that the law was being more effectively enforced. It seemed that people cared less about who was doing the enforcing and more about the fact that law was being enforced and actors held accountable for their actions. This cultivated a very positive view of the Ministério Público and the Brazilian Supreme Court amongst civil society. In this way, a non-participatory innovation has given public employees an unusually large leeway in affairs that should belong to political/electoral institutions. This, however, would prove disastrous in the most recent political period as the Ministério Público and the Brazilian Supreme Court have had a hand in corruption issues and have attacked political institutions and revoked their authority. Corruption is a centuries-old problem in Brazil that has been considered a remnant of the traditional society and patrimonial relations (Leal, 1977). However, at every critical juncture in the modernization process, Brazil’s corruption lessened within the political system. During the New Republic period, which started with the drafting and enactment of the 1988 Constitution, corruption was refurbished through an ingenious and completely illegal system of campaign financing. Campaign financing in Brazil is regulated by Law No. 9.504/1997 of 1993, which allows large companies to donate up to 2 per cent of their revenues to political campaigns (Mancuso, 2015). A total of 19 large companies in Brazil donate close to half of successful electoral campaign donations, valued at 154 million reais (close to US$100 million in 2014 reais). However, this system of campaign financing is also a gateway to illegal deals between the government and these companies. In March 2014 Operação Lava Jato (Operation Car Wash) marked the introduction of plea bargaining in Brazil and advanced an investigation that led to the indictment of ex-president Luiz Lula da Silva (Lula), the removal of then-president Dilma Rousseff and the reorganization of political power in Brazil.

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PLEA BARGAINING AND CHANGES IN THE PRESUMPTION OF INNOCENCE AS A CRIMINAL LAW INNOVATION The Brazilian criminal system was established in the chapter regarding individual guarantees in the Constitution and its Penal Code. The Brazilian criminal law works according to the proposition of ‘presumption of innocence’, which is clearly stated in Article 5 of the individual guarantees of the 1988 Constitution, paragraph 17, which says ‘no one shall be considered guilty before the issuing of a final and non-appealable penal sentence’. Though this principle exists in many countries that follow the Roman law tradition,18 it became a prohibition for state custody in the Brazilian Penal Code. According to Article 283 of the Brazilian Penal Code, ‘no one could be taken into custody unless through a written order of the judicial authority not subjected to any additional appeal’ (Brazil, 1941). There have been positive and negative elements to this judicial tradition. The most significant response has been the infinite number of case appeals within the system, which has four appeal levels. Also of significance is the manner in which the Supreme Court can intervene and operate in any criminal lawsuit.19 This increased the number of appealed cases, especially those concerning politicians and business people; prior to 2010, the Supreme Court had not convicted a single politician. In prominent cases, such as the trial of ex-president Collor de Mello, the Brazilian Supreme Court established a very high bar of proving wrongdoing and ended up acquitting him in the criminal proceedings. Also important to note are the numerous cases in which there were convictions in lower courts but no subsequent incarceration. High-profile individuals avoided convictions in a staggering number of lawsuits brought against them. For example, former Speaker of the House, Eduardo Cunha, avoided convictions in more than 22 lawsuits, three of which (Nos. 2123, 2984 and 3056) were initiated when he was president of Rio de Janeiro’s housing authority (COHAB) in 1998 and 1999. There are other cases that attracted media attention, such as the suit against Paulo Maluf, ex-governor and mayor of São Paulo, and the suit against Orestes Quércia, ­ex-governor of São Paulo. A large number of appeals within the judicial system became the main reason why corruption became widespread in Brazil, and this has led to changes in legislation with the introduction of plea bargaining.

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Plea bargaining was introduced in Brazil in the aftermath of the June 2013 demonstrations (Avritzer, 2017), which encapsulated the public’s outrage at the lack of criminal punishment for wrongdoing within the political system. In August 2013, Law No. 8250 on delação premiada (plea bargaining) was enacted by the Brazilian Congress. The law formally resembles the structure of plea bargaining in the United States, but reproducing the US structure in Brazil proved problematic. The model of plea bargaining in the United States is a contractual model; that is, two actors move voluntarily to bargain because both see the benefit of bargaining (Scott and Stuntz, 1992). In the United States, the plea bargain is decided between the prosecutor and the plaintiff, and the result of their negotiations is presented to the judge. Plea bargaining can reduce the risk of litigation for both sides. For the plaintiff, refusing a plea places him or her at the mercy of the jury and the risk of receiving the maximum sentence. For the prosecutor, the risk is not getting a conviction in court. Unlike in the United States, the Brazilian system puts the judge in control of the plea bargaining, and when a plea bargain is not obtained no jury is involved. The main points of plea bargain law in Brazil are the following. First, the move towards a plea bargain should be voluntary. However, because in the Brazilian system the judge negotiates the plea bargain and is also responsible for sentencing, it is hardly arguable that this move could be encouraged. Second, in Brazilian law, the maximum amount a sentence can be reduced is two-thirds of the time to be served. However, technicalities give the judge a much larger leeway in the decision on sentencing (as will be shown later in relation to a specific case: Operation Lava Jato). Plea bargaining in the Brazilian system was a legal innovation that increased the concentration of power in the judicial system at the expense of the sovereign institutions constituted by popular vote. The concentration of power in the hands of the judicial system occurred because of the overlapping of all the innovations discussed earlier, namely, via the expansive power placed in the hands of the Brazilian Supreme Court and the renewed focus of the Ministério Público. Also contributing to the strength of the judicial system was the determination of a first-level judge to bend the law in order to make anti-corruption a priority and to politicize its occurrence. This is the context in which Operation Lava Jato occurred in Brazil beginning in March 2014.

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ENFORCING ANTI-CORRUPTION AGAINST THE RULE OF LAW: THE DANGER OF INNOVATION Lava Jato is a joint Federal Police and Ministério Público operation20 that has been in action since March 2014 in the southern state of Paraná. The operation is directed by Sérgio Moro, a first-level federal judge who is head of 13th criminal district. Moro is a polemical judge who has abused judicial power in the past and been reprimanded by the Brazilian Supreme Court, who decided to take advantage of the new plea bargaining law in order to investigate the links between the Brazilian political system and Petrobras, Brazil’s national petroleum corporation. First, Moro gave himself questionable authority during the investigation of Petrobras. The case started with the arrest of a money launderer who lived in Curitiba, the capital of Paraná.21 As Moro started to investigate money laundering, he uncovered a complex system of illegal campaign financing that involved three major parties (the Workers’ Party [Partido dos Trabalhadores – PT], the Brazilian Democratic Movement Party [Partido do Movimento Democrático Brasileiro –PMDB] and the Progressive Party [Partido Progressista – PP]) and the parties’ relations with empreiteiras (contractors), who receive major government contracts and are the largest contributors to Brazilian political campaigns. These relations between the federal government and empreiteiras date back to the 1950s and were enhanced under the authoritarian regime. Empreiteiras overwhelmingly win bids for roads and other government infrastructure, including contracts with Petrobras. These have become more lucrative as the oil sector has grown since the mid-1990s. Moro proceeded to incarcerate high-level Petrobras managers who Moro thought were involved in kickbacks. He ordered the arrest of Petrobras director Paulo Roberto Costa, who admitted his involvement in the scandal. Moro also arrested a long-time Petrobras highlevel manager, Pedro Barusco, who confessed to receiving millions in kickbacks. Next, Moro arrested Nestor Cerveró, who was suspected of receiving kickbacks during the acquisition of a Petrobras refinery in Texas (Avritzer, 2016b). The actions of Moro can be viewed in two ways, both of which reveal problems embedded in the innovations of the judicial system. First, all of these high-ranking Petrobras officials admitted wrongdoings and accepted plea bargains. As a result, hundreds of millions

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of dollars were returned to Petrobras, demonstrating the effectiveness of the changes made by the Ministério Público and the judicial system in the area of criminal investigation. From a different perspective, all of these managers were appointed by ex-president Cardoso, thus raising strong suspicions of a supra-party scheme existing in Brazil for several decades. In exchange for lenience, these managers accepted plea bargains in which they alleged PT involvement. They have never been asked whether the scheme involved Cardoso or the opposition in spite of the fact that Cardoso appointed these executives. Yet Moro has not investigated Cardoso, his associates, or his party even though the names of important Brazilian Social Democracy Party (Partido da Social Democracia Brasileira – PSDB) figures (such as current leader and past presidential candidate Aécio Neves) have surfaced several times in plea bargaining. Moro never accepted the investigation of the opposition and thus he assigned a clear political meaning to the investigation that, in the end, highly contributed to the overthrow of the government in Congress. The case of Operation Lava Jato shows how problematic aspects of institutional innovation are in Brazil. Judicial institutions were already strengthening themselves against the institutions constituted by popular vote, and this began a process of politicization of judicial power. Both the Ministério Público and the Brazilian Supreme Court seized the opportunity to strengthen their power within the post-1988 institutional arrangement by choosing popular causes that would connect them with the population and sectors of civil society. Lava Jato represented the step forward that the Ministério Público and the Supreme Court did not want to take. However, directed by a first-level judge and a locally politicized Ministério Público, the public’s perception that corrupt politicians were not being adequately punished began to gain momentum. This public perception was generally encouraged by the Ministério Público, the judge and the media. The judge’s complete control of the plea bargaining process allowed him to assign the political meaning he wanted to the operation. He was able to do so because he also controlled the sentence reduction process (Table 5.1). Table 5.1 shows the logic of a criminal operation that became a political operation. The three Petrobras directors, Cerveró, Barusco and Costa, had their total sentences reduced from 74 years to 7.5 years, despite empirical proof of wrongdoings.22 Sentences were reduced in exchange for the identification of empreiteira members

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Table 5.1  Comparison of sentences before and after plea bargain agreements awarded under Operation Lava Jato Informer

Position

Alberto Youssef

Money launderer 82 years and 8 months 39 years and Supply chain 5 months director (Petrobras)

Paulo Roberto  Costa

Previous Sentence (Before Plea Bargain)

Augusto  Mendonça Dalton Avancini

Top executive (Toyo Setal) Top executive (Camargo Corrêa)

16 years and 8 months 15 years and 10 months

Eduardo Leite

Top executive (Camargo Corrêa)

15 years and 10 months

Fernando Baiano PMDB operator Julio Camargo Mario Goes

Nestor Cerveró Pedro Barusco Rafael Ângulo João Procópio

Lobbyist (Toyo Setal) Lobbyist

International director (Petrobras) Director (Petrobras) Money changer (employed by Youssef) Money changer (employed by Youssef)

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16 years, 1 month and 10 days 26 years 18 years and 4 months 17 years, 3 months and 10 days 18 years and 4 months 6 years and 8 months 3 years

Sentence Traded (After Plea Bargain)

3 years (closed system) 2 years and 6 months (6 months in closed regime, with progression) 4 years (open system) 3 years and 3 months (3 months in closed regime, with progression) 3 years and 3 months (3 months in closed regime, with progression) 4 years (1 year in closed regime, with progression) 5 years (open system) 3 years, 5 months and 25 days (25 days in a closed system, with progression) 3 years (closed prison and house arrest) 2 years (semi-open regime) 2 years (semi-open regime) 2 years and 6 months (home prison)

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who were involved in the kickbacks. These identified members in turn had their sentences reduced after providing evidence of Workers’ Party deals within Petrobras. It is important to point out that the two plea bargains that involved members of other parties or did not involve information about the PT, were not approved by Sérgio Moro or the federal prosecutor. It is also interesting to note the pattern of maximum sentencing in Operation Lava Jato as well as the pattern of investigation. Every plea bargain involved denunciations of PT members. But worst of all, every financial transfer from Odebrecht23 to the PT was considered the result of illegal kickbacks from Petrobras, whereas Odebrecht contributions to other parties were considered the result of normal operations. The attribution of legality or illegality to Odebrecht’s money was an exclusive prerogative of Judge Moro and did not involve empirical evidence tracing the money to specific operations. Thus, it remains unclear: was the aim of the operation to halt all corruption or to just investigate corruption at Petrobras? Most likely the aim of the operation was to provide, via the criminal justice system, evidence against the PT. The Ministério Público cancelled the plea bargains that were not connected to the PT or other political parties (Table 5.2). The plea bargain cases of Léo Pinheiro and Marcelo Odebrecht were suspended by the Ministério Público because they involved the wrong political actors. In the case of Pinheiro, his empreiteira owns the penthouse,24 the ownership of which the Ministério Público attributes to ex-president Lula. Thus, targeting the PT and targeting Lula became a possibility because of the institutional construction of judicial innovations in Brazil. This highlights the danger of placing too much unaccountable power into the hands of a corporation without external accountability. I will come back to this point in the conclusion of this chapter.

THE NEGATIVE IMPACT OF JUDICIAL PREROGATIVES AND THE INCREASE OF JUDICIAL POWER In March and April 2016, the power and capabilities of the judicial system were at their strongest. A general, and informal, consensus in favour of the semi-institutional overthrowing of Dilma Rousseff’s

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Table 5.2  Treatment of Workers’ Party (PT) and associates in Operation Lava Jato Plaintiff

Relation to PT

Level of Evidence

José Dirceu

Strong

Delcídio do  Amaral André Vargas

Weak

Not offered No connection between Odebrecht money and Petrobras Strong connection Offered after 90 days of imprisonment Strong Not offered

João Santana

Strong but expelled after imprisonment Strong

Léo Pinheiro

Strong

No connection between Odebrecht money and Petrobras No connection between Odebrecht money and Petrobras Strong but indirect

Marcelo  Odebrecht

Strong

Strong but indirect

Monica Santana

Plea Bargain

Offered after 120 days of imprisonment Offered after 120 days of imprisonment Rejected because it did not involve an apartment attributed to ex-president Lula; after one additional year of arrest he incriminated ex-president Lula but refrained from providing evidence Negotiated after a 19-year conviction and 2-year imprisonment

administration was reached within judicial institutions in early 2016 and began to be acted upon. At this time, the three roles of the Brazilian Supreme Court overlapped and made it the ultimate arbiter of the political dispute. As I mentioned earlier, the increase in power of the Brazilian judicial system involved the strengthening of Supreme Court prerogatives in three areas: (1) constitutionalization of judicial review; (2) transformation of the Supreme Court into the highest level of judicial appeal; and (3) transformation of the Supreme Court into a special forum for trying wrongdoings

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c­ommitted by politicians. These prerogatives overlapped between December 2015 and April 2016 as the process of impeaching President Dilma Rousseff moved forward in Congress. In December 2016, two interesting cases came to the Brazilian Supreme Court. The first case was a legal demand by the general prosecutor, the head of the Ministério Público, to remove the Speaker of the House who had, just a week before, accepted the filing of the presidential impeachment25 by three lawyers, two of whom were linked to opposition parties. The second case was an ADPF (Ação de Descrumprimento de Preceito Fundamental – Action Against the Violation of a Fundamental Constitutional Principle) filed by an MP from Rio de Janeiro, Jandira Feghali,26 asking for the judicialization of the impeachment process. The Brazilian Supreme Court accepted the second case but rejected the first. The court accepted the process of judicialization of the impeachment moderating its ritual as it had been established by the Speaker of the House. Cunha established an ‘express impeachment process’ with closed votes on the election of a key committee in charge of examining the impeachment plea. The Brazilian Supreme Court’s decision in the analysis of ADPF27 No. 378 was split, with the winning side accepting an independent position written by Minister Luís Roberto Barroso. The Barroso position was an attempt to elaborate on the existing 1950 Law No. 1079, establishing two new rules for processing decisions in relation to the impeachment: (1) the vote for the special committee in charge of the impeachment would be open; and (2) the Supreme Court decided that the lower house vote would not be enough to remove the president, but rather the vote would need to be confirmed by the Senate. Although this decision seemed valid in the sense that Law No. 1079 did not provide enough grounds for the president’s defence in the Senate, it should be also kept in mind that the decision significantly expanded the power of the Supreme Court and allowed the court to seize control of a political process. The letter of the impeachment law established the removal of the president once a vote was complete at the lower house level. This shows again a tendency by the Brazilian Supreme Court to negate the written law of the land and establish decisional superiority in relation to the law, a tendency that increased in early 2016. Another aspect of the Supreme Court decision, which is even more troubling in terms of political consequences, is the removal request of the Speaker of the House by the Ministério Público.

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Cunha was a special type of corrupt politician. Cunha amassed substantial support in Congress by creating an influence scheme, through which he blackmailed large companies with commercial deals for the federal government. It is impossible to know how much money Cunha collected through this blackmail scheme, but it is certain that the scheme illegally financed dozens of key electoral campaigns. Illegal Swiss offshore accounts emerged in the name of a trust owned by Cunha in early 2015 and triggered an Ethics Commission inquiry against him (Avritzer, 2017). Cunha organized a support group to defend him in the Ethics Committee, and remained in his job throughout the inquiry in spite of the evidence against him that emerged in legal suits. He accepted the impeachment filing28 when the PT announced that it would vote against him in the Ethics Committee. On 16 December 2015, the General Prosecutor filed for the removal of Cunha from the presidency of the lower house. This request stayed idle at the Brazilian Supreme Court until a week after the impeachment, raising strong suspicions that the Supreme Court was siding politically in the process. Two significant cases involving ex-president Lula occurred in March 2016. The first case was an attempt to bring Lula to Curitiba under protective custody, a move that backfired when social movement activists blocked the effort at São Paulo airport (Avritzer, 2016b). A showdown between Moro and Lula involved strong violations of defence guarantees by Moro on March 16. On that day, President Dilma Rousseff appointed Lula as her chief of staff, a position with prosecutorial immunity. The move was widely seen as an attempt to protect Lula from Moro. In response to Lula’s nomination, Judge Moro – who at that point had Lula, all his close associates and family members, and his lawyers under phone ­surveillance – leaked several telephone conversations that, according to Brazilian law, could not be publicized.29 Moro ordered the Federal Police to stop recording Lula at 11am that day. However, the phone tapping continued. Moro then released all the tapes, including those recorded after the cutoff, to Globo, Brazil’s largest news network. Moro successfully circumvented the courts in favour of the media, inflaming popular opinion. Later, Moro attempted to justify the leaks by declaring that they were in the public’s best interest to hear. The Supreme Court assumed a double position in relation to Moro’s extrajudicial activities, which posed problems for the excess of power generated by judicial innovation. On the one hand,

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Supreme Court Judge Teori Zavascki came down hard on Moro. In light of the illegal wiretapping and leaking, he charged Moro with violating Article 5 of the Constitution, which governs due process. Judge Zavascki also declared some of the taped conversations legally irrelevant and argued that public interest could not justify the illegal release of the taped conversations. The ruling could be the gravest judicial setback for Moro since the launch of Operation Lava Jato. Zavascki gave Moro ten days to explain violations of rights and judicial branch hierarchy. Moro apologized at the same time that Lula’s lawyers asked the Supreme Court to assume the investigation and transfer it from a lower court to the higher court. The Supreme Court proceeded to take the last step in transforming a criminal investigation into a politicized investigation by allowing a judge who gave several indications of not abiding by the rule of law or valuing the right of defence to continue to conduct a politically tainted investigation. As of July 2017 Moro convicted Lula of corruption, denying a key feature of the Brazilian penal code: the necessity of an official act in order to convict on corruption. In that case, which involved Lula obtaining property for which no documentation linking him to it could be found, Moro also denied the need to provide actual evidence of property ownership in the case of money laundering. Thus, judicial innovation in Brazil started as a process to broaden rights carried out by professionals and ended as illegal actions against a president and a political party violating the section of the Brazilian Constitution on individual guarantees as well as the Brazilian Penal Code. The Brazilian case shows that innovation cannot and should not be generalized to all fields because it may put into question the rule of law. Democratic innovation has to be a space to deepen democracy through the incorporation of social actors.

JUDICIAL INNOVATION IN COLOMBIA: A MORE SUCCESSFUL CASE Colombia is an interesting second case of innovation in judicial and legal institutions caused by a constitution-making process (CepedaEspinosa, 2004; Schor, 2011; Uprimny and Garcia-Villegas, 2002). The point of departure of Colombia’s constitution-making process was very different from Brazil’s. Brazil started its constitutionmaking process after the end of 21 years of authoritarianism.

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Authoritarianism in Brazil was the height of a policy of breaking with the rules of the electoral game (Stepan, 1989). In contrast to Brazil, Colombia has held regular elections since the late nineteenth century and has a relatively stable judicial tradition (CepedaEspinosa, 2004, pp. 534–5). The long-term Colombian problem has not been elections but a difficult process of national construction in which local power resisted centralization and both local powers and the state continually resorted to violence in this conflict. During the period in which most Latin American countries fell into the authoritarian/military trap, Colombia pursued what might be called a singular path through which a permanent civil war with different armed groups took place within a state that had control of 25 per cent of the nation’s territory (Rebolledo and Garcia-Villegas, 2009). Within this tradition, strong human rights violations took place regularly, and the biggest issue in regard to democracy was the declaration of a state of siege. Colombia was under a state of siege for more than 30 years between 1949 and 1991 (Uprimny, 2003, p. 51). The calling of the National Constituent Assembly in Colombia followed a tradition of weak judiciary power and a strong executive branch. After a presidential election in which three presidential candidates were murdered, César Gaviria was elected and during his election a long-standing position of intellectuals and public sphere members calling for a National Constituent Assembly was approved in a referendum by the Colombian population. The Colombian National Constituent Assembly gathered under guidelines similar to those of the Brazilian Constituent Assembly and many other constituent assemblies. Afterwards, it repealed the previous Constitution (enacted in 1886) and decided to craft a new one. There were many reasons for repealing the old Constitution, the most important of which was the attempt to broaden the social and political coalition behind the political system. The Colombian Constitution of 1886 could be considered relatively successful in terms of the Latin American pattern of constitutional longevity as well as in its capacity to introduce elements of judicial review (Uprimny, 2003, p. 50). However, it clearly failed to include important social groups in the countryside that were part of local forces challenging the political centre. The 1991 Constituent Assembly broadened the types of groups involved in the constitution-­making process by including former demobilized guerrillas, indigenous populations and religious minorities (Uprimny and Garcia Villegas,

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2002, p. 307). This allowed a change in how to diagnose the failures of the old Constitution and to propose new constitutional devices in relation to human rights and the balance of powers. The new Colombian Constitution introduced two very important changes in its architecture that should be analysed. The first important change was a separation between the Supreme Court and the Constitutional Court. Colombia has had a long tradition of a Supreme Court that was both a constitutional court and the top level for judicial appeals. The 1991 Constitution created an independent Constitutional Court. Very few political and social actors, with the exception of President Gaviria, wanted a Constitutional Court (Cepeda-Espinosa, 2004, p. 549). Former guerrilla members as well as conservative forces were against an independent Constitutional Court for different reasons. The M-19 movement could not support it because of its past action of seizing the Supreme Court premises, and the conservative forces wanted to strengthen the ‘travail’ of the Supreme Court (ibid.). However, the argument of President Gaviria was more socially than politically oriented. He wanted to change the organization of the acción de tutela (writ of protection), an integrated change that was the most meaningful one proposed by the Colombian Constituent Assembly, a change that he wanted to make effective. The Colombian National Constituent Assembly strengthened the instrument of acción de tutela in Article 86 and later through Decree No. 2591 (Constituición Política de Colombia, 1991). In the decree, the main features that would transform acción de tutela into the most important constitutional device are already clear. Acción de tutela is defined as a legal instrument that can be used by all individuals to charge public officers with violation of constitutional rights. In addition, according to the decree, acción de tutela has preference and should be decided in summary judgement. Acción de tutela, as I will show later, was transformed into an important instrument to enforce individual and minority rights in Colombia. The second important change introduced by the Colombian Constitution was the broadening of citizens’ action against constitutional amendments and decrees issued by the government in exercising delegated powers (Cepeda-Espinosa, 2004).30 More important than the transfer of this strong instrument to citizens is the fact that the Colombian Constitution of 1991 does not bind public unconstitutionality action to any legal formalities such as the representation

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of an attorney, showing much less influence of judicial corporations than in the Brazilian case.31 On the other hand, the Colombian Constitutional Court also acquired very broad prerogatives with regard to constituted political forces. It has been allowed to review presidential decrees of state of exception; law calling for a referendum; law in which Congress overruled presidential vetoes; and all tutela judgements issued by lower courts (Cepeda-Espinosa, 2004, p. 529). In spite of the broad range, it is still less than the Brazilian Constitutional Court can review. The initial impact of changes to the Colombian Constitution was limited to certain areas. Uprimny and Garcia-Villegas (2002, p. 308) argued that there is a problem in the correlation of forces between those who crafted the Constitution and those who ruled the country after the election of Álvaro Uribe for the presidency. The Uribe victory represented a strong blow to the architecture of the 1991 Constitution because it was designed assuming the continuance of the political game between liberals and conservatives. Uribe ran as an independent candidate with an anti-guerrilla agenda that meant strong measures for strengthening the Colombian state. An analysis of these conflicts may help in the evaluation of the role of judicial innovations in Colombia. Uribe declared a state of emergency four days after his inauguration through Decree No. 1837. Colombia has a long history of state of siege and the 1991 Constitution ratified a differentiation of states of exception between social emergency and internal commotion among others in Articles 212, 213 and 214. The 1991 Constitution changed important aspects of the declaration of exception in Colombia. The most important among them are that the president needs the written agreement of all ministers; the president can extend the period of emergency, but in that case he or she needs the agreement of the Senate; and in the case that the declaration does not follow the rules the president takes criminal responsibility (Sánches and Reguera, 2004, p. 2). The Colombian Constitutional Court was activated regarding several aspects of the declaration of a state of emergency by President Uribe and issued a sentence on October 2002 divided into four sections: attacks against defenceless citizens; terrorist acts against the civil population; acts against public authorities; and the increase in criminality. The court in its decisions narrowed the scope of the state of emergency first of all in its capacity to examine and to reverse the decrees issued during the state of emergency. Second

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the court accepted a new tax to finance security actions against the guerrillas. And third the court declared unconstitutional the decree that increased sanctions for illegal commercialization of oil, linking it to the principles of material restrictions (Sánches and Reguera, 2004, p. 5). The court also did not accept the constitutionality of the declaration of the Ministry of Interior as the civil authority in rehabilitation zones (ibid.). An analysis of the court decision and a comparison with Supreme Court prerogatives in Brazil reveals important differences. First of all, the Colombian Constitutional Court decision in relation to Uribe shows two positive elements of judicial review. The first was the de facto use of prerogatives to enforce the will of the constitutional legislator to reduce the illegalities and arbitrary acts in the implementation of state of emergency. It is possible to conclude, in this first case, that there was an important overlapping between the intention of the legislator, the written document and the Supreme Court decision. In the Brazilian case, even very progressive decisions by the Supreme Court lacked this element. The second important confrontation between the Uribe government and the Colombian Constitutional Court was related to Uribe’s re-election attempts. The Colombian Constitution, similar to most Latin American constitutions, did not forecast re-election. Uribe tried to change the constitution twice. Both attempts constituted the peak of explicit acts of politicization and ‘partidarization’ of judicial institutions. In regard to the National Electoral Council, Colombia has a system that resembles the Mexican system32 in its worse moments, with party indicating the members of the council. In 2003 Uribe expanded the role of traditional parties in the council, assigning seven seats among nine to the liberal and conservative parties. In 2006 the link between the councillors and Uribe became even stronger (Silva, 2009). Before 2002, no president of Colombia had served more than one term. Shortly after Uribe’s election in 2002, there were calls to change the constitution and a referendum was allowed.33 Congress changed the Colombian Constitution and the majority of the population supported the change. However, the prosecutor of the republic challenged the change at the Constitutional Court. For him ‘the control of constitutionality should be rigorous and comprehensive in order to guard the integrity of the Constitution and should be a result of a democratic process and not only the imposition of the majority

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will vis-à-vis the minority’ (Uhl, 2013, p. 7). The Supreme Court accepted, under strong political pressure, the constitutionality of the change, allowing a Colombian president to serve two terms. However, this change was not enough for Uribe and his supporters. By the end of 2007 a proposal for a second re-election emerged from sectors very close to the president. However, there has been an important change in support for re-election. Whereas the first re-election bid was supported by the Catholic Church, business leaders and the United States, the second re-election bid was received with criticism or scepticism by most of the same sectors (Uhl, 2013, p. 71). The strategy for the second re-election chosen by Uribe supporters was to propose a referendum. Members of Uribe’s party started to collect signatures for the referendum in 2008 and collected approximately five million signatures and submitted the proposal to Congress, which approved it in May 2009. The proposal was forwarded to the Constitutional Court, which struck it down (Posada-Carbó, 2011). The argument of the Colombian Constitutional Court is very important to bear in mind in order to evaluate the court’s political actions and its understanding of the new Colombian Constitution. The Constitutional Court declared the referendum for re-election and the bid for a third term unconstitutional. It is important to analyse the court’s justification for striking down the referendum. The court made an important point about the very nature of constitutional review in Colombia. According to the court, its mandate is to protect the Constitution, stating clearly the court prerogatives to reform but not to substitute the Constitution (Porto, 2010). In addition, the court made an important point on the balance of powers, differentiating indefinite re-election from re-election in the same way as it has been done in other countries.34 Thus, Colombia seems to be an interesting second case in terms of judicial innovation that allows us to see the Brazilian case in perspective. Both cases are clear cases of judicial innovation dealing with a new balance of power that is emerging in Latin America. Colombia is a good second case for several reasons: first, because its innovations in the area of judicial organization are clearly centred on rights and balance of power, in contrast with innovations in Brazil that generated a dispute of power supremacy. The area in which the court has been active usually involves rights, whereas in Brazil it involves balance of power and affirmation with regard to the political system. The case in which the Constitutional Court most clearly interfered

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with the sovereign activities of the political system was the case of the second Uribe re-election. However, even in this case the most important sentences reaffirmed the written law of the Constitution, whereas in Brazil the Supreme Court is trying to establish its capacity to review or cancel the written law of the Constitution.

CONCLUSION: THE PERILS OF JUDICIAL INNOVATION The basic assumption of political innovation is that it produces a more equal and democratic environment. Democratic innovation fosters moving from a top-down and technocratic decision-making process to a bottom-up or shared decision-making process that incorporates horizontal and informal elements. Two questions posed in the introduction of the book remain unanswered: (1) Can professionals or corporations reproduce the drives of democratic innovation as many authors have argued (Edelman et al., 2010; Epp, 2010; Hilbink, 2012)? (2) Can innovation become a substantive agenda and be implemented judicially? In the introduction I pointed out the danger of assigning to professionals the drive of institutional innovation, showing that there are at least two types of innovation – democratic and administrative – that should be differentiated. The Brazilian case of judicial innovation offers rather negative responses to the possibilities of democratic innovation within the judicial system. The initial strengthening of the judicial system shows the danger of connecting innovation with a substantive agenda. There is no doubt that the Brazilian judicial institutions associated two different agendas with the new equilibrium of power that they sought to establish. The first agenda promoted the expansion of social rights, which became very popular in the public opinion. The second agenda, also popular, sought active involvement in corruption control. Together, the two agendas caused an overlap between institutional innovation and the strengthening of the judicial system. At the same time that social rights were expanded in Brazil, the judicial system denied the exclusive attributions of the executive branch in the decision-making process of social policies; in this regard, Brazil differs from Colombia, even in regard to the strengthening of rights. This happened in spite of the fact that decisions made by the judicial system on social issues, mainly on health policies, were

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based on individual demands and introduced a clear component of irrationality into the system. Yet, it is possible that the first agenda occurred in alignment with a global trend of strengthening impartial institutions rather than in response to domestic issues (Rosanvallon, 2011; Tate and Vallinder, 2005). What happened next was more complicated and involved a political agenda that was pushed by specific political actors associated with a change in political orientation in Brazil. The Ministério Público, Judge Moro and the Brazilian Supreme Court initiated a judicial investigation on corruption that would have been very important in Brazil’s transition from an aged, illegal system of campaign financing to a legal and accountable system. However, instead of fully supporting such a transition, Judge Sérgio Moro used the investigation for political delegitimation of the PT and manipulated the case in a way that violated individual guarantees and helped to overthrow an elected government with very little evidence of wrongdoing. The reason behind pushing to overthrow the government was the result of judicial powers wanting to concentrate power in their own hands and remove power from sovereign institutions, such as the executive and the legislative bodies. Politicians were arrested and political statements by the judicial authority became common. By the end of 2016, the Brazilian Supreme Court declared a project of abuse of authority by judges unconstitutional, making clear the intention of establishing a process of judicial supremacy. In contrast, the Colombian case is of a much surgical intervention of the court based on the written Constitution. Thus, though the Colombian case points towards more equilibrium, the new Latin American tendency towards judicial power-taking prerogatives of elected authorities, though the discourse of democratic innovation may in the end jeopardize innovation itself. The fact that the discourse on innovation is behind a process that led to the strengthening of an anti-sovereign and anti-rights political perspective in Brazil is reason enough to re-evaluate the broad positive perspective that scholars have given the whole idea of innovation in the judicial field (Ball et al, 1989; Habermas, 1984, 1996). This chapter suggests a more cautious approach to innovation based on the separation of the idea of innovation through language and political participation from innovation based on corporations and top-down bureaucratic procedures. Though it can be argued that the Brazilian judicial system is an exception within a broad

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array of institutional innovations, the approach taken in this book suggests the contrary. I suggest that innovation can be seized by nondemocratic actors very easily. It has also been shown that usually the abuse in the idea of innovation and its connection to public opinion may be constructed in stages, as has been the case with the Ministério Público and other institutions of the Brazilian judicial system that used a rights-based agenda to hijack the idea of public interest from sovereign institutions constituted through the vote or political participation. Thus, innovation should be approached in a more cautious way – as being limited to changes that strengthen citizens’ participation in politics and the deconcentration of power from topdown and hierarchical institutions.

NOTES  1. This is a very important difference between the Brazilian and North American judicial systems. The US judicial system has many electoral entry points and these open posts are key to maintaining contact between the judicial system and civil society actors. Innovations often come from this perspective. In Brazil all positions are filled through public examination, which is very bureaucratic and privileges middle-class students with good academic backgrounds (Vilhena, 2014).  2. The Brazilian Supreme Court introduced public audiences for a small number of cases through Laws No. 9.868/99 and 9.882/99, which established procedures for the declaration of unconstitutionality. Within the Brazilian Supreme Court, public hearings were incorporated into the court rules and proceedings by Rule Amendment No. 29/2009.  3. Proposals for popular amendments required 35 000 signatures in order to be considered by the Systematization Committee. Close to ten popular amendments achieved the required number of signatures and were brought to the Constitutional Committee. Although none of them were approved in their entirety, parts of their texts were incorporated into important articles such as the chapter on health, social assistance and urban politics.  4. According to Coslovsky (2015), the National Council of the Ministério Público (Conselho Nacional do Ministério Público – CNMP), which was mobilized during the previous decades, seized the National Constituent Assembly as an opportunity to propose a special career for prosecutors. At the end of 1986 the CNMP issued a letter calling for organizational autonomy, including the autonomy of the Ministério Público to propose its own budget.  5. Still it is highly disputable that conservative sectors did not have much stake during the Constituent Assembly. The most important example is the chapter on telecommunications concession. Among the 14 subcommittees that met during the Constituent Assembly, only the Communications Subcommittee did not produce a report. The 1988 Constitution has three articles on communication that require infraconstitutional legislation, and only one was made by Congress more than 25 years after the enactment of the Constitution ­ establishing

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 6.

 7.

 8.  9.

10.

11. 12.

13.

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r­egulation from the right of response. The two other articles, one on the monopoly of communications and the other on the equilibrium between public and private property of TV outlets, have never been regulated (see De Lima and Guimarães, 2013). The Brazilian authoritarian regime created a device called decreto lei (law decree), adapting a similar device present in the postwar Italian Constitution. Law decrees during the authoritarian period were sent to Congress but could be approved without congressional challenge through a device called decurso de prazo [removal of statutory time limit for voting on legislation]. During the Constituent Assembly, law decree prerogatives were substituted by medidas provisórias (provisional measures), which represented an improvement in Brazil’s strong presidential system. The medidas that are not approved have their effect suspended, although they can be reissued up to 200 times. Brazil only recently evolved into a more balanced system in which defeated medidas provisórias cannot be reissued. This created a very different tradition from the North American one in which constitutional review is a practice that evolved experimentally as problems emerged. Marbury v. Madison (1803) inaugurated the tradition of judicial review in the United States, and confrontations between the executive branch and the Supreme Court during the 1930s further established the tradition (see Ackermann, 1991; Agresto, 1984; White, 2004). These data are the result of research commissioned by the Observatório da Justiça Brasileira, a project headed by the Department of Political Science at the Federal University of Minas Gerais. This information shows a very specific process of judicialization in which members of Congress take almost all important matters in which the opposition is defeated to the Supreme Court. However, this often takes place due to media effects. Most of these actions are obsolete before being judged (see Sundfeld et al., 2011). Party loyalty was a big issue during the past decade as the process of ­political fragmentation increased. At one point 20 per cent of the members of the Brazilian Congress changed parties before the legislature inauguration (Ranulfo, 2007). The Brazilian legal system, unlike common law, requires an infraconstitutional law to make some articles of the constitution enforceable. This is called ‘legal regulation’. Up until that point, the Brazilian health system had been financed with pension resources from the social security system. The two systems were integrated and the financing of health from pension funds was not a problem until 1980 due to the newness of the system, which reduced the number of pensioners, and due to the low life expectancy in the country. After the 1988 Constitution, however, there was a double crisis – over how to finance the Unified Health System and how to administer it. The financial crisis led to the judicialization of the theme (see Lima et al., 2005). The constitutional amendment proposed by Michel Temer in September 2016 may be the first attempt to change the basic structure of the Constitution. PEC 241 would deny budgetary prerogatives to the judicial system and reduce the income of public employees. Britain, New Zealand and Canada have similar but more specific formulations. In the British case the National Health Service (NHS) Constitution states that citizens ‘have the right to receive NHS services free of charge, apart from certain limited exceptions sanctioned by Parliament’. Thus, Britain relies on the political system, more specifically on Parliament, to rule on exceptions in treatment. In

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15.

16.

17.

18. 19.

20.

21. 22.

The two faces of institutional innovation the Canadian case there is a differentiation between individual and collective rights, with individuals having the right to ‘a good-quality, dependable and accessible national system of health care’. Again, the patient’s bill of rights is issued by the state and its political system. The best known cases are civil suits brought in the state of São Paulo for highly expensive cancer drugs not available in Brazil. In just two cases the expenses amounted to US$281 000. It is interesting to point out that most of the claimants are middle-class and the system is a sort of middle-class renting on the public service (see Vieira and Zucchi, 2007). In the year 2015 the judicial branch moved ahead and determined the distribution of an experimental cancer drug that has not been tested, and banned legal regulation that required medical research. The Brazilian Federal Police has its origin in the last year of the Vargas administration and received its current name in 1967. It has several underdepartments that are in charge of immigration, frontiers and other issues. The areas of the Federal Police in charge of anti-corruption are the regional commands. During the 2014 election, under pressure Dilma Rousseff signed Law No. 13.047, which requires the general director of Brazil to be a career police officer. Raposa Serra do Sol was a long case in which the state of Roraima asked for the exclusion of the Raposa Serra do Sol area in the following areas: an area for the sixth frontier platoon, an area for an urban settlement of Uiramuta, an area for electricity transmission and an area for federal roads. The exemptions asked by the state of Roraima would lead to a fragmented Indian reservation that would not fulfil the 1988 Constitution chapter on the preservation of indigenous culture – the reservation would no longer be contiguous. The Brazilian Supreme Court decided the case on 20 March 2009. The same principle can be found in Article 27 of the Italian Constitution, in Article 32 of the Portuguese Constitution and in Article 24 of the Spanish Constitution (see Farache, 2015). The Brazilian Supreme Court according to the 1988 Constitution is a constitutional court, a revision court and a special forum for deciding criminal cases against politicians. Very few supreme courts concentrated that amount of power. The Brazilian Supreme Court has more power than the US Supreme Court, which is only a constitutional court. The Brazilian Supreme Court has more power than the Constitutional Council in France, which accepts the prerogatives of elected presidents to enforce new legislation on property rights and divisions of power (see Rogoff, 2005). Integrated operations between Federal Police and Ministério Público started in 2003 with the nomination by Lula of Márcio Thomaz Bastos, a well-known criminal lawyer. Bastos believed that most investigations in Brazil were not successful because they lacked coordination and intelligence. The number of integrated operations increased from 18 in 2003 to 516 in 2015 (see Arantes, 2012). Although these operations uncovered wrongdoings, they also strengthened corporatist and anti-sovereign elements within the Federal Police. It decentralized its centre of operation and made them independent from the Ministry of Justice. As this book is being written there is a constitutional amendment supported by the Ministério Público and the Federal Police to allow political investigations into illegally obtained evidence. The Federal Police is also sponsoring a constitutional amendment that would make it functionally autonomous. Brazilian law operated with the idea of territorial forum. Moro broke first with this idea, second with the idea of presumption of innocence and third with the idea of attorney–client privilege and previous access to charges. This is also an important difference between the Brazilian and the American systems. The US system of plea bargaining does not favour sentence ­reduction

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23.

24.

25.

26.

27. 28.

29.

30.

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on evidence already collected by the district attorney. In the Brazilian case the  judge can forgive whichever crimes have been revealed in a plea bargain process. Odebrecht is the fourth largest private company in Brazil and has vast operations in South America and Africa. The PT was responsible for the expansion of Odebrecht operations into the Andean region, mainly Peru. After he left the presidency, Lula was responsible for the expansion of Odebrecht operations in Africa, mainly in Angola. It is difficult to produce an assessment of the penthouse property. During the 1990s the cooperative of the bank clerks’ trade union began construction on a building in a seaside resort outside São Paulo. The cooperative went bankrupt a few years later and a large contractor (OAS) assumed the construction of the building, most likely through lobbying of important PT people in government positions. Lula had an option for an apartment that received extra investment from OAS. However, Lula never exercised the option and transformed the apartment into his property. The Ministério Público insisted this was a cover property and asked the Federal Police to investigate it. The investigators found that the penthouse was owned through a Panama company by the owner of a publicity agency in São Paulo. As of December 2016 no link between Lula and the property had been established. In November 2016 the Ministério Público indicted Lula on the charge of cover up, arguing that the lack of a link implicated him in money laundering and hiding of property. In July 2017, Judge Moro convicted Lula of corruption for receiving the penthouse. He did not present any empirical evidence. He only argued that the property was laundered and evidences could not be presented. Impeachment in Brazil is highly political. It was introduced in 1950 when Getúlio Vargas was elected president of Brazil. The opposition tried to impeach Vargas. Vargas survived the impeachment but not the strong forces that backed the effort to force his resignation. Feghali filed an ADPF with the aim of guaranteeing the enforcement of Law No. 1079 of 1950. Cunha wanted to institute an express process with a secret vote against the guideline of the law. The Supreme Court decided the process on 17 December 2015. ADPF is a variation of the unconstitutionality action, ADIN. It challenges the disobedience of main constitutional principles. A few scholars have observed that among many other institutional design issues, one problematic design element of the impeachment process in Brazil is that accepting impeachment proceedings is an exclusive attribution of the Speaker of the House (Ranulfo, 2016). Legal tapings in Brazil are regulated by Law No. 9296 of 1996. The law is clear on two issues: (1) non-relevant facts must be discarded by the judge; and (2) when political authorities with special forum prerogatives are tapped, their recordings should be sent to the Supreme Court. In regard to Lula’s investigation, Judge Moro released family talk, released Lula’s exchange with Dilma’s chief of staff and tapped his lawyer as well (see Avritzer, 2016b). Delegated powers is a Hispanic American legal institution that allows the executive branch to ask for authorization to legislate on a specific matter with automatic approval. It exists in Argentina, Brazil, Peru and Uruguay. The most famous case is its use during the pre-corralito (see Chapter 3, note 12) period in Argentina. The Brazilian government uses the decree more than lei delegada (delegated law) (see De Oliveira, 2006). The Brazilian equivalent of public unconstitutionality, the acão civil pública (civil public action), was introduced in 1985.

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32. Brazil has a more technical system, but it is not clear whether it works better than the Mexican or the Colombian systems. 33. It is important to point out that re-election was on the political agenda in most Latin American countries. Menen changed the Argentinian Constitution in 1994, Cardoso changed the Brazilian Constitution in 1997 and Fujimori changed the Peruvian Constitution more than once. 34. The United States has been used as a standard in several debates on re-election. In the Colombian case the US ambassador supported the first re-election bid by Uribe on the grounds that it was successful in the United States.

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Conclusion: The two faces of innovation This book was written with two different aims. The first was to make an evaluation of innovation that would allow us to square the circle of the different practices that emerged during the last two decades in Latin America. These innovations have been seen in a positive light by a large number of democratic theorists. Starting from the definition advanced by Smith, according to which there are ‘institutions that have been specifically designed to increase and deepen citizen participation’ (Smith, 2009, p. 1), many theoreticians of democracy saw all innovations or all democratic innovations as being able to foster citizenship. This is the move that concentrated the study of democracy on the study of innovation and assumed that this would be enough to point out the deepening of democracy in all these cases. This book assumed a different perspective, namely, that innovation has to be evaluated in the intersection between design and the political system. Participatory budgeting, the Federal Electoral Institute (Instituto Federal Electoral – IFE) and comités de vigilancia were all seen from the perspective of involving citizens in democratic practices or in decision-making processes. We evaluated the results according to how much decision-making, distributive policies and citizen education have been involved in each one of the processes. The book also had a second aim, namely to propose a more cautious look at innovation – a look that would bring into the framework a long-term view of different outcomes generated by innovation. This long-term perspective would allow us to see two new phenomena linked to innovation: (1) the expansion and diffusion of innovation that would allow us to compare different experiences according to their democratization effect; (2) the expansion of the innovation discourse to other areas, in particular the area of judicial organization. Innovation does not have to be contained in the area of organization of democratic practice and it has historically expanded to other areas of public policy (Day and Klein, 1987). Hence, the 131

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question on how to evaluate the expansion of institutional innovation to the judicial arena in the way it has been carried out in Latin America is an open question that was approached in the book. The main issues in relation to judicial innovation can be summarized in two questions: (1) Is it worthwhile to expand the drive for innovation beyond the political system and public policies? (2) Can social and political actors be substituted by professionals, and in that case does innovation continue to have a democratizing effect? I tried to answer both sets of questions in the book through the analysis of empirical cases. I analysed six cases of participatory budgeting, three cases of accountability and two cases of judicial innovation. These findings in these cases showed great variation. In some cases, participatory innovation has been successfully expanded both in Brazil and Argentina, and in other cases, innovation was halted by new forms of relationships with the political system. As I pointed out in Chapter 3, the political system is the main variable in the generation of success or failure in the process of innovation. I also worked with the cases of innovation in the judicial cases in both Brazil and Colombia. I argued that the Colombian case is one that could be considered successful precisely because it kept in mind a core of rights and norms that innovation cannot go beyond without endangering the deepening of democracy. All of the cases I worked in the book are located in Latin America, the region that took the idea of democratic innovation seriously. These cases allowed us to propose a very large typology of innovation that I will present in this conclusion.

PARTICIPATORY BUDGETING: FROM DEEPENING DEMOCRACY TO INCLUSIVE GOVERNANCE I started the discussion of the cases in the book with participatory budgeting (PB). In the field of democratic theory PB is considered the most successful democratic innovation that has emerged in Southern democracies. It is perhaps the only Southern innovation that has migrated to Northern democracies. This can be corroborated by a large number of attempts to expand the innovation: PB is a public policy in cities such as New York, Paris and Lisbon (Lerner and Seconda, 2012).

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In order to approach the different elements involved in PB expansion I have disaggregated PB into three practices: budgeting-making, deliberation and citizens’ education. Budgeting-making in PB, surprisingly, assumes two very different formats: (1) the transformation of PB into part of budget-making through the transference of prerogatives to the citizens; or (2) the allocation of a pre-set budget that involves insulated deliberation – the most common format outside Latin America today.1 I traced back the different formats to debates in Brazil and tried to show that only in the cases in which PB is part of a meaningful process of budget deliberation is it an experience of deepening democracy. In the cases where there is a relatively wellorganized process of insulated deliberation, PB is part of a process of limited inclusive governance, which in my view is the process in cities such as New York and Lisbon. The difference between deepening democracy and improving governance is much deeper than many new PB practitioners suppose. In Chapter 3 I tried to differentiate the cases in Brazil and Argentina according to the influence of PB in citywide politics. I showed that successful cases of PB are the ones where the budget debate is very broad and the conflicts between PB participants and the broader political system – which are frequent – receive participatory answers or political answers in which PB participants are included. The South American experience is instructive in differentiating the cases according to the capacity of PB to democratize the relationship between citizens and the political system, a feature that needs to be the most important criterion for democratic deepening. Most experiences of PB outside Brazil and Argentina are experiences in which the most important feature of PB is its integration with the broader governance system, that is to say, the system of political governance that is not permeable to participation in spite of the implementation of participatory budgeting. This empirical fact needs to be approached by deliberative democrats and defenders of democratic innovation. Thus, the successful Latin American cases are instructive not only in differentiating cases but also in throwing light on a new wave of PB outside Latin America that misses the most important democratization features. In this experience, not only is the budget preset but the impact of the process of deliberation on the political system is also very limited when it exists. To understand how the expansion of a democratic innovation can become a limited form of inclusive governance one needs to

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c­ oncentrate on the issue of emergence and diffusion of democratic innovation. My position in the book in regard to diffusion is that there is nothing wrong with the idea that innovation can be expanded or reproduced. However, it is of key importance for the analysis of innovation to concentrate on the broader issue of the relation between innovations and the political system. Democratic innovation’s connection with the broader political system is a concern of deliberative democrats (Parkinson and Mansbridge, 2012). PB emerged as a form of connecting the two through the process of budgeting deliberation. The successful experiences of PB are those in which participation is connected to the political system and shows the ability to deepen citizenship and democracy. This book has shown that there are two types of diffusion experiences: first, one that maintains the political dimension of innovation and, second, one where this dimension of democratization is neutralized. In this second case the element of integration with the broader political system is substituted by the insulation and neutralization of the broader impact of the experience into the political system. Neutralization and insulation may take different forms. One form is restricting PB to a few public policies (São Paulo) or to a part of the city territory (Buenos Aires and São Paulo). The tricky issue in this process of insulation is that the political system predefines which part or which policy will involve participatory budgeting with the aim of insulating participation from the broader decision-making process on citywide public goods, as was shown in the cases of São Paulo and Buenos Aires. This is not to say that all cases of PB are cases of limited access to the budget. It is true that all successful cases have had budget limits or even public policy limits. However, these limits were usually negotiated with participatory budgeting actors and in some very contentious cases citywide policies were halted or revised. This was the case in the construction of the Perimetral urbanway in Porto Alegre, in the urbanization of Brasília Teimosa in Recife and in the change of function of Fabrica de Armas in Rosário. All three examples show that successful PB cases show a broader connection between PB and other city policies, a connection without which PB is neutralized as a form of participatory democracy. This is what distinguished the successful cases mentioned above from the unsuccessful. It is possible to say that the cases of expansion we are dealing with today resemble more the unsuccessful cases of Buenos Aires and

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São Paulo than the successful cases of Porto Alegre, Belo Horizonte, Recife and Rosário. The new cases outside Latin America are cases where there is a preset small budget; non-citywide political influence; and a methodology of participation that involves small groups.2 The methodological dimension makes it in fact democratic but does not connect the proposal with any broader dimension of the political system. In this regard, at best PB in these cases is an attempt at inclusion in a proposal of top-down governance; at its worst, it is a meaningless process of political participation secluded from the political debate.

MONITORING AND PARTICIPATION: COUNCILS IN LATIN AMERICA There is an interesting paradox within the literature on democratic innovation in Latin America, which is the underestimation of the role of councils in the democratization of public policy. Councils in their different variations in Brazil, Bolivia and Mexico are an intrinsic part of the institutions created during these countries’ processes of democratization. Some of these institutions emerged before these countries’ democratization, as in the case of IFE and its councillors in Mexico. Other institutions were part of democratization, as in the case of councils in Brazil and comités de vigilancia in Bolivia. I argued in Chapter 4 of the book that these are the most successful participatory innovations in Latin America. My argument is that they create a non-electoral political continuity in the area of public policy in a region where these institutions are subjected to over-politicization. In the three cases, the specific policy, be it fraud control in elections in Mexico, health and social assistance in Brazil or health and education in Bolivia, have significantly improved after the introduction of these institutions through a process that I called participatory accountability. Participatory accountability is a second innovation in Latin America that has one main difference from participatory budgeting. Innovation is integrated into the law and operates with relative independence from the political system. In all three cases studied above there have been positive results in public policies due to this relative independence. In the case of Mexico, electoral fraud was significantly reduced during democratization. The IFE strengthened itself

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but was attacked by important political forces of the Institutional Revolutionary Party (Partido Revolucionario Institucional – PRI) and the Democratic Revolution Party (Partido de la Revolución Democrática – PRD) after the elections of 2006. In the case of Brazil we also see very positive results in the implementation of health and social assistance policies. The so-called ‘social control’ operated by citizens in institutionalized forms of participation made political change less influential on these policies that followed long-term guidelines until 2014. Bolivia is perhaps the most instructive case among the three because comités de vigilancia are civil society institutions created by a law in the process of administrative and fiscal decentralization in a country with huge ethical and social inequalities at the local level. Thus, success emerges more in a case that is less politically dependent than the cases of PB that are highly dependent on the political system (Avritzer, 2009). However, even in cases with a legal distance from the political system, there is still the danger of interference in the organization of these institutions. The Mexican case is the most instructive in this regard because IFE has performed well and it became clear that charges of electoral fraud by then PRD defeated candidate López Obrador were not confirmed. Nevertheless, despite the poorly founded charges of electoral fraud, IFE was redesigned by the three parties and became more of a party federation than a civil society representative. Its council is overseen by Congress and considerable control by the political system upon the institution has been reinstated. Brazil and Bolivia are more moderate cases of political system interference with social participation. In the Brazilian case, the longtime synergy between the Workers’ Party (PT) and institutions for social participation brought positive results in areas such as health and social assistance and the creation of a new agenda at the national level in the areas of food security, women’s affairs (assuntos da mulher) and culture. Together a large joint agenda emerged and this agenda has been relatively successful. However, can this new agenda be independent of the backlashes of the political system? Since 2014 Brazil has been passing through a wave of conservative politics and one of the first action of conservatives in Congress was to turn down a decree on the National Policy for Social Participation (Política Nacional de Participação Social – PNPS). After the impeachment of President Dilma Rousseff there has also been the extinction of the special secretariats linked to human rights, women’s affairs, racial

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equality and agrarian reform. In all these cases participatory forms of accountability have been disassembled. However, we also see the importance of councils, in particular in the area of health, in sticking to the idea of state policies and challenging reversal of these policies. Hence, Brazil has implemented forms of participatory accountability much more strongly than Mexico, but they also show vulnerabilities in the reorganization of the political system and the emergence of a new anti-participatory orientation. Bolivia is a case in which participation is stronger than in Brazil and Mexico because of its connection with the law on decentralization. Bolivia passed through a huge process of decentralization that involved political decentralization, social policy decentralization and fiscal decentralization (Oxhorn, 2001). Participation was an intrinsic part of this process and the 1994 Popular Participation Law (Ley de Participación Popular – LPP) allowed for the creation of new forms of social organization as well as new forms of participation. Comités de vigilancia were introduced in all cities and have played a large role in improving the efficiency and getting rid of corruption in areas such as health (Gray-Molina, 2001). However, decentralization was also involved in the huge dispute between political forces of left and right that has also been transformed into a decentralization dispute due to the concentration of conservative and anti-indigenous autonomy forces in Media Luna region. Despite the confirmation of all decentralization and participation elements during the Constituent Assembly, a process of politicization of these institutions took place, with the Movement for Socialism (Movimiento al Socialismo  – MAS) and indigenous leadership trying to reduce the role of the comités de vigilancia. Thus, politicization of participatory accountability institutions took place in the three cases. All the cases of participatory accountability had an initial successful moment; however, all of them had a political backlash. Nevertheless, different from participatory budgeting, which has a high dependency of support at the political level, many cases of participatory accountability continue to be successful after interference in the political system. The difference is that the legal structure behind participatory accountability allows social control to continue to be exercised. Thus, long-term cases of success are possible in the case of participatory accountability, whereas in the case of participatory budgeting even successful cases such as Porto Alegre are discontinued due to electoral defeats. Hence, how

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to curb the political system of electoral interference with these new forms of participation is an open question.

INNOVATION AGAINST DEMOCRACY: THE CASE OF JUDICIAL INNOVATION The third case I discussed in the book is innovation in judicial institutions. Some authors might argue that this is not innovation at all but just an internal reorganization of the balance of powers (Bourdieu, 1986; Hirschl, 2004) but I will stick with the idea that it is a case of innovation because it legitimizes itself through the claim of innovation. In the case of Brazil, innovation came about through two different devices: the creation of Ministério Público as an independent agency and the constitutionalization of judicial review. In the case of Colombia, the change came about through the creation of a Constitutional Court with independent prerogatives in cases of constitutional review. Despite institutional similarities, the two cases are very different. The Brazilian case is characterized by strong intervention by judicial institutions in the exclusive attributions of the executive branch. Intervention started at the level of public policy with a decision that stated that the courts have higher prerogatives than the executive branch in the establishment of public policy priorities. However, it was at the level of criminal law that most of the abuses took place, with local courts denying defence rights determined by the 1988 Constitution. The last stage of power abuses was the removal of the president of the House and an attempt to remove the president of the Senate by preliminary decisions taken by one judge. In all these highly politicized cases, the Brazilian Supreme Court generated law and struck down constitutional articles. By acting in this way, the judicial system adopted a position that it was above the Constitution. Thus, Supreme Court decisions in Brazil created long-term disequilibria in the balance of power structure. All these decisions targeted the issue of the balance of power among branches of government. In the Brazilian tradition the executive branch is the stronger power. Innovation created a power dispute among monopolistic institutions that has tilted in favour of the judicial branch. However, the problem with the unconstitutional change in the balance of power is that it strongly goes against democratic

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principles and allows for the politicization of the judicial branch with unknown consequences. The Colombian case is different from the Brazilian albeit within a similar tradition of strong executive power. The Colombian executive is very strong not only due to its constitutional attributions but also due to the willingness of presidents to use emergency powers. The Colombian Constitution of 1991 innovated in relation to the country’s tradition by creating an exclusively Constitutional Court. The court established a self-limited but assertive tradition of blocking executive branch actions. The most important innovation introduced by the Colombian Constitution was the capacity of citizens to challenge decrees issued by the executive branch during the state of emergency. The inauguration of Uribe as president led to the attempt to change the new constitutional balance sought by the 1991 Constitution. He declared a ‘state of internal commotion’ four days after his inauguration and sharply intervened in judicial institutions. However, the conflicts between Uribe and the Supreme Court in the two re-election attempts were clearly marked by a reference in the written text as it became clear in the statement in the decision that the court could reform the Constitution but not substitute it (Porto, 2010). A comparison between the innovations introduced by the Brazilian and the Colombian Supreme Courts shows different patterns. In the Brazilian case the innovations introduced by the Constitution were appropriated by the Supreme Court as a way to produce a new balance of power that strengthened the institutions of the judicial system and put them above the Constitution. In Colombia, the devices created a new balance of power strengthening citizenship in general and in the cases of conflicts between the executive and the judicial system, the decision of the court respected the letter of the law. Thus, an ‘originalist’ position allowed the Colombian Supreme Court to prevail. The 11 cases of innovation in the book throw a new light on the desirability of innovation. The distinction I proposed in the introduction allowed us to establish a distinction among the different cases. The book narrowed the concept to the cases of democratic innovation in order to assess innovations according to their role in deepening democracy and rights. This allowed me to differentiate cases of participatory budgeting, cases of participatory accountability and cases of judicial innovation. In the end I came up with

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a more cautious view on innovation, which does not diminish its importance. On the contrary, the book tried to closely bind innovation, rights and the deepening of democracy. Its main hope is that by being more selective, deliberative democrats can better contribute to sponsoring experiences of innovation. Thus, this book belongs to a tradition of critical theory that looks at social phenomena through the lenses of the distribution of political and economic power. The relevant democratic innovations are those capable of altering the distribution of power and economic resources and fulfilling the classical democratic promise.

NOTES 1. For a comprehensive assessment of these experiences see Baiocchi and Ganuza (2016). 2. See in relation to this the proposal of national participatory budgeting in Portugal. It defines itself as universal, democratic and direct but it involves three million euros and will have to decide on priorities in meetings in each region. Most of the process that is called democratic and direct is between a group of technicians and a limited pool of participants. None of the major political issues or investments are involved in the national participatory budgeting. See www.opp.gov.pt.

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Index Abers, R.N. 56 accountability 37–9, 44, 75–7 see also participatory accountability Actions for the Declaration of Unconstitutionality (ADINs, Brazil) 102–3 actors and participatory budgeting 48, 50, 51 role in implementation of innovation 44 administrative innovation 3–4, 7–8, 42–3 United States 34, 36, 42 Almond, G. 49 Arantes, R.B. 105 Arato, A. 15 Argentina democratic innovation 25 participatory budgeting 26, 27, 41, 65–71, 134 participatory systems 23, 24 authoritarianism 32–3 autonomy 28 Avritzer, L. 80, 81 Banzer, Hugo 86 Barroso, Luís Roberto 116 Barusco, Pedro 111, 112, 113 Belo Horizonte, participatory budgeting 54, 56–8, 66 Bohman, J. 18 Bolivia accountability 37, 38, 39 comités de vigilancia 37, 38, 87–90, 95, 96–7, 137 democratic innovation 26–7

participatory accountability 85, 86, 87–90, 94, 95, 96–7, 136, 137 participatory systems 23–4 Brasília Teimosa, participatory budgeting 63–4, 65, 134 Brazil 1988 Constitution 79, 101–3, 104–5, 106–7 accountability 37, 39 administrative/judicial innovation 42–3 campaign financing 103, 108, 111 corruption 28, 42–3, 84, 108, 109, 111–14, 116–17, 118 democratic innovation 25, 27–8, 101–3 democratization 40, 94 environmental issues 107–8 Ministério Público (Public Prosecutor’s Office) 8–9, 27–8, 42–3, 102, 106–8, 112 national conferences 79–80 participatory accountability 77–8, 79–85, 94, 95, 96, 136–7 participatory systems 23 policy councils 77–8, 79–85 Workers’ Party (Partido dos Trabalhadores, PT) 55–6, 58–9, 61, 64, 111, 112, 114, 115 see also judicial innovation, Brazil; participatory budgeting Buenos Aires, participatory budgeting 66–8, 70, 134 bureaucracy, and top-down policymaking 31 bureaucratization 15–16 165

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Cardoso, Fernando Henrique 112 Cerveró, Nestor 111, 112, 113 classical democratic theory 13 co-deliberation 39–40 Cohen, Jean L. 15 Cohen, Joshua 18 Coleman, J. 49 Colombia, judicial innovation 9, 118–24, 125, 139 comités de vigilancia (Bolivia) 37, 38, 87–90, 95, 96–7, 137 Coordination of Relations with the Community (Coordinação de Relações Communitárias, CRC) 56 corporations and administrative/judicial innovation 8, 43 and democratic innovation 27–8 corruption Brazil 28, 42–3, 84, 108, 109, 111–14, 116–17, 118 United States 35 Costa, Paulo Roberto 111, 112, 113 Couto, C.G. 105 criminal law innovation, Brazil 109–10 critical public policy 31–3 critical theory 16–17 cultural trap 19 Cunha, Eduardo 109, 116, 117 deliberation 17–20 deliberative institutions 48–9 deliberative systems 20–23 democracy and accountability 75–6 capacity to deepen 9–10, 44 classical theory 13 and deliberation 18–19, 20 democratic innovation 3–4, 24–5, 26–9, 100, 131 Brazil 101–3 expansion of 9–10, 40–41, 72, 133–5 replicability of 40–41

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democratization 72 Bolivia 86, 94 Brazil 40, 94 Latin America 1–2, 4, 32–3, 35 Mexico 85, 90–92, 94 United States 33–6 Dryzek, J. 20–21, 22 education, and participatory budgeting 49–50 elections campaign financing, Brazil 103, 108, 111 and participatory accountability 76, 78 electoral fraud, Mexico 90–91, 93 electoral primaries 35, 36 Estenssoro, Victor Paz 86 Faguet, J.P. 89 Federal Electoral Institute (Instituto Federal Electoral, IFE) 26, 27, 37–8, 85, 91, 92, 93, 135–6 Federation of Neighbourhood Associations (União das Assoçiapões de Moradores de Porto Alegre, UAMPA) 55 Fischer, F. 32 Fung, A. 18–20, 21 Gaviria, César 119, 120 Goodin, R.E. 20–21, 22 governance levels, participatory budgeting 48–9, 52 government and classical democratic theory 13 and New Institutionalism 13–14 predictability of 13–14 Gray-Molina, G. 89 Habermas, J. 14–15, 16–17, 19–20 Hall, P. 14 healthcare reforms, Brazil 104–6 Hevia, F. 34, 39

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Index inclusion 22 inequalities, and participatory budgeting 56–7 Ingelhart, R. 49–50 innovation expansion of 2, 25–7, 40–41, 71–3, 131–2 external and internal pressures 71–2 institutional 1–2, 3, 4, 100 institutionalist view, critique of 14–17 as key aspect of democracy 41, 131 policy innovation 71–2 political 3–4, 7–8 types of 2–5 see also administrative innovation; democratic innovation; judicial innovation; judicial innovation, Brazil institutional innovation 1–2, 3, 4, 100 Institutional Revolutionary Party (Partido Revolucionario Institucional, PRI) 27, 90–92, 94 institutionalist view on innovation, critique of 14–17 institutions, role of 14 interest aggregation 16 Isunza, E.I. 34, 39 Jepperson, R.L. 14 judicial innovation 3–5, 7–9, 10–11, 42–3, 44, 100–101 Colombia 9, 118–24, 125, 139 judicial innovation, Brazil 4–5, 8–9, 42–3, 138–9 anti-corruption enforcement, and danger of innovation 111–14 compared with Colombia 122, 123–4 conclusions 124–6 democratic innovation and 1988 Constitution 101–3

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167 Ministério Público, diffuse rights and corruption 106–8 negative impact of judicial prerogatives and increase in judicial power 114–18 Operation Lava Jato 111–14, 115 plea bargaining and presumption of innocence 109–10 presidential impeachment process 116 social rights and process of judicialization 104–6 Supreme Court 102, 103, 105–6, 109, 112, 115–18, 125, 138, 139

Latin America accountability 37–9, 44 authoritarianism 32–3 councils and community participation (participatory accountability) 77–9, 135 democratization 1–2, 4, 32–3, 35 participatory systems 23–4 technical personnel, and social issues 32–3 Lava Jato, Operation 111–14, 115 local assemblies 51, 57, 59 and participatory budgeting 48–9 local participation, wider influence of 53 Lowi, T. 31 Lula (Luiz Inácio Lula da Silva) 108, 114, 115, 117–18 majority aggregation 16 mandatory interfaces 34 Mansbridge, J. 20 Mello, Collor de 109 Mexico accountability 37–8 democratic innovation 25 participatory accountability 85, 90–95, 96, 97, 135–6 participatory systems 23, 24, 26, 27 transparency 92–3

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mini-publics 1, 20–23 Ministério Público (Public Prosecutor’s Office, Brazil) 8–9, 27–8, 42–3, 102, 106–8, 112 Morales, Evo 90 Moro, Sérgio 111–12, 114, 117–18, 125 national conferences, Brazil 79–80 New Institutionalism 13–14 Odebrecht, Marcelo 114, 115 Operation Lava Jato 111–14, 115 Parkinson, J. 20 participatory accountability 6–7, 38–9, 75–7, 135–8 Bolivia 85, 86, 87–90, 94, 95, 96–7, 136, 137 Brazil 77–8, 79–85, 94, 95, 96, 136–7 councils and community participation, Latin America 77–9, 135 limits and potential 95–7 Mexico 85, 90–95, 96, 97, 135–6 participatory budgeting 5–6, 23–4, 26, 27, 39–40, 44, 46–7, 72–3, 132–5 Argentina 26, 27, 41, 65–71, 134 Argentina and Brazil compared 70–71 Belo Horizonte 54, 56–8, 66 Brasília Teimosa 63–4, 65, 134 budget-making 47–8, 51, 133 Buenos Aires 66–8, 70, 134 citizen education 49–50 deliberative institutions 48–9 expansion of 41, 58–65 governance levels 48–9, 52 origins of, Brazil 55–8 place within pre-existing administration 62, 66, 73, 133 Porto Alegre 23, 39–40, 46, 48, 50–53, 55–7, 58, 65, 66, 134 priority caravans 54

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Recife 61–5, 66, 134 Rosário, 66–7, 68–71, 134 São Paulo 59–61, 64–5, 66, 70, 134 as trademark 73 Pateman, C. 22–3 Petrobras investigation 111–14, 115 Pinheiro, Léo 114, 115 plea bargaining, Brazil 109–10, 111–14, 115 policy councils, Brazil 37 policy innovation 71–2 political deliberation 17–18 political innovation 3–4, 7–8 political learning 49–50 political system 14–17 and deliberation 18, 20 and democratic innovation 10, 24–5, 134 and expansion of innovation 26–7 mini-publics 1, 20–23 and participatory budgeting 65, 72–3, 134–5 and participatory systems 24, 137–8 strategies for blocking innovation 10 Popular Participation Law (Ley de Participación Popular, LPP) 86, 87–90 Porto Alegre, participatory budgeting 23, 39–40, 46, 48, 50–53, 55–7, 58, 65, 66, 134 predictability, government 13–14 primaries, electoral 35, 36 priority caravans 54 public deliberation 17–20 public goods, distribution of 50, 52 public opinion 17 public sphere 15, 16–17 Putnam, R.D. 49–50 rational choice institutionalism 14 recall 34–5, 36, 44 Recife, participatory budgeting 61–5, 66, 134

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Index recruitment process, mini-publics 21 referendum 34–5, 36, 44 replicability 40–41 ‘representativeness’ 22 Rodgers, D. 68 Rosário, participatory budgeting 66–7, 68–71, 134 Sabel, C. 18 Sánchez de Lozada, Gonzalo 86 São Paulo, participatory budgeting 59–61, 64–5, 66, 70, 134 Sintomer, Y. 21 Smith, G. 21, 33, 131 social actors, and participatory budgeting 48, 50, 51 social protection view 47–8 social rights, and process of judicialization, Brazil 104–6 Taylor, R.C. 14 technical personnel, and social issues 31–3 technological development 31 transparency 37, 92–3

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Uhl, A.K. 122–3 United States administrative innovation 34, 36, 42 democratic innovation 28 democratization 33–6 participatory budgeting 41 plea bargaining 110 professionals, and social issues 32 Uribe, Álvaro 121, 122–3, 139 Vaz, A.C.N. 82–4 Verba, S. 49–50 voluntary associations, participation in 49–50, 51 Weber, Max 13, 14, 31 critique of 14–17, 31 welfare state 47–8 Wilson, Woodrow 36, 42 Workers’ Party (Partido dos Trabalhadores, PT) 55–6, 58–9, 61, 64, 111, 112, 114, 115 Wright, E.O. 18–20, 21 Zavascki, Teori 118

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