Marta Arretche
Federations are forms of state in which subnational governments have their own political rights. In federal states, subnational governments rely upon their own legitimacy due to independent selection procedures, are entitled to make decisions over policies under their own jurisdictions (Riker, 1975) as well as the right of representation in national decision-making arenas (Bednar et al., 1999), usually by means of a territorial chamber. The right to self-rule and shared-rule should in principle (but not always in practice) (Hooghe & Marks, 2016) distinguish federal states from unitary ones. Such political rights are written in a Constitution and are interpreted by a Supreme Court in case of conflicts among levels of government. Hence, the (de)centralization of policy competences is one of the political rights of subnational governments in political unions.
We therefore need a concept of federalism in order to analyze to what extent the presidency of Jair Bolsonaro has affected Brazilian federal institutions, since changes in federations should not be taken as the same as open conflicts with governors. In other words, the institutions of a polity should not be confounded with intergovernmental politics. Indeed, the anti-establishment agenda and the confrontational style of Bolsonaro led him to openly challenge all political powers. State governors were also among them. Confrontations with the legislative and judiciary branches as well as with governors have also been part of a blame avoidance strategy through which the president depicts himself as a “game changer” whose initiatives are vetoed by other political players.
Open confrontations with governors became systematic under Covid-19 (which now span almost two out of the three years Bolsonaro has been president). In fact, state governments turned out to be key players in the enactment of non-pharmaceutical interventions to fight the spread of the virus (Barberia et al, 2021; Moraes, 2020; Pereira, Oliveira e Sampaio, 2020). Yet, does the emergence of active subnational government mean a change in the way the Brazilian federation works? Did the Brazilian federation undergo changes as a result of Bolsonaro’s presidency? Can we say that subnational political rights were affected by his government?
Bolsonaro’s agenda did involve important changes in how subnational political rights are allocated in the Brazilian federation. The 1988 Constitution framers entitled the Union with exclusive authority over a large number of policy areas while at the same time decentralizing the execution of those policies to states and municipalities. For instance, health care was decentralized. However, the (federal) Ministry of Health was given the authority to coordinate such policies and set uniform rules to be implemented by subnational government across the country. Another representative example: state- and local-governments are the providers of water services, but it is exclusive to the Union to legislate about water policy. Local governments, although being the main providers of a significant number of policies, do not have exclusive authority over any of them. As a result, the Union is entitled to set — exclusively – the rules of several policy areas subnational governments are in charge of.
Progressive presidents – namely, Fernando Henrique Cardoso, Lula and Dilma Rousseff – took advantage of the broad scope of authority the Union has in the Brazilian federation to set up a comprehensive set of policy rules through which federal transfers are earmarked to subnational policy responsibilities. As a result, although states and municipalities have autonomy to comply (or not) with federal-led policies, the price to be paid for non-compliance is being cut off from federal money. Such a choice is a luxury most subnational governments cannot afford. So, block grants (transfers to spend freely) were incrementally replaced by earmarked transfers. By the mid-2010s, subnational budgets and policy priorities turned out be highly constrained by federal regulation.
Bolsonaro’s original agenda aimed at dismantling the institutional order that emerged as a result of the 1988 Federal Constitution and was fostered by subsequent governments. He (and particularly his constituency) sees the enactment of laws regulating social order as a threat to individual liberty. The dismantling was supposed to have included the Union’s power to rule over subnational governments. Among Paulo Guedes’s (who became minister of economic affairs and his most powerful minister) main campaign proposals was the one titled Mais Brasil, menos Brasília (More Brasil, Less Brasília) (https://www.infomoney.com.br/politica/mais-brasil-menos-brasilia-sobre-o-que-e-o-slogan-que-ja-se-tornou-o-mais-disputado-da-eleicao/), meaning that both fiscal resources and decision-making authority should be devolved to subnational governments. If successful, the change would have weakened both the spending capacity and the regulatory authority of the Union. Moreover, the cross-region redistribution role the Union has performed (by transferring revenues from richer to poorer jurisdictions) as well as its capacity to reduce policy-outputs heterogeneity across states and municipalities would be significantly reduced. In sum, Mais Brasil, menos Brasília meant to enlarge the scope of decision-making authority of subnational governments. If this agenda had succeeded, Bolsonaro would have transformed a core element of Brazilian federalism.
This agenda did not succeed though. President Bolsonaro submitted a proposal of constitutional amendment to the Senate, titled a New Federative Pact, in November 2019. Yet, instead of enlarging subnational revenues, it set the rules for subnational fiscal adjustment by further introducing constraints on their budget management. The proposal still is under examination in the Committee of Constitution, Justice and Citizenship that is in charge of examining its legal admissibility. In fact, 7 constitutional amendments were approved under Bolsonaro’s presidency. None of them affected subnational rights or competences.
What did happen was that, unlike previous progressive presidents and in accordance with his agenda, Bolsonaro refused to use the powers the Constitution confer to the Union to coordinate subnational policies. Instead, in key policy areas, the federal government strategy oscillated between open confrontation and non-action. Hence, Bolsonaro’s intergovernmental politics did not mean to suppress or enlarge subnational policy competences. Instead, he has simply chosen not to exercise the political rights the Union is constitutionally entitled to.
However, since Covid-19 Bolsonaro`s strategy has changed. Describing his strategy as marked by inaction, as some interpreters do, does not fully capture the kind of conflict that emerged as a result of the shock the pandemic produced. Instead, the president was quite active to the point of trying to suppress the right Brazilian subnational governments have to enact rules on non-pharmaceutical initiatives. The fact though is that once again he was defeated.
Roughly speaking, we can say that two programmatic approaches emerged – not only in Brazil but worldwide – in response to Covid-19. For the sake of simplicity, we could call them negationist and science-driven. The first denied the seriousness the threat of the virus represented to people’s health and – in theory anyway – prioritized the preservation of economic activity. So, the negationist “party” fiercely resisted the imposition of social distancing and limited mobility. The “science-driven party”, by its turn, followed the recommendations of health experts who ranked social isolation (or even lockdown) as a priority measure so as to flatten the curve of contamination. This “party” was open to pay the upfront costs of economically painful measures.
In the American federation, whose tradition is to confer broad legislative competences to states, the federal government left to the states the decisions about when to cancel events, to close schools and businesses, and to issue stay-at-home orders (Adolph et all, 2020). As a result, the partisan cleavage regarding the fight against Covid-19 can be observed through federal institutions. The geographic incidence of vaccination in the US is directly associated with governors’ party affiliation (Krugman, 2021) as well as cross-states rates of contamination.
The geography of such partisan division is easier to observe due to the American bipartisan system. The same cleavage is not so easily observable in Brazil due to the fragmentation of the party system. But Gomes et al (forthcoming) have demonstrated that the stringency of governors’ policies toward Covid-19, particularly those related to economic activity, is associated to political alignment to president Bolsonaro. Governors affiliated to opposition parties tended to adopt stringer measures while those aligned to the president adopted less stringent ones. If this is true, under Covid-19 what happened was less of a federative conflict – that opposed all subnational governments to the federal executive – and more a partisan conflict which was processed through federal institutions.
Indeed, president Bolsonaro has been the leader of the “negationist party”. In that capacity, he used the power the Constitution confers to the president (the exclusive authority to enact presidential decrees) to suppress the right of states to legislate over the operation of public services, workers’ mobility and essential economic activities (whose content was also set by a presidential decree) under Medida Provisória no. 926, launched on March 20, 2020. MP no. 927, enacted two days later, conditioned subnational restriction to cross-city transportation to prior authorization by three federal ministries. At that moment, though (March 2020), the two “parties” were not yet clearly formed, and most governors had already adopted restrictive measures complying with the recommendations of the World Health Organization (Moraes, 2020b) and other national scientific associations.
So, instead of coordinating subnational governments around a shared-solution, Bolsonaro aimed at forbidding them to make decisions. Instead of non-action, Bolsonaro indeed acted so as to tie the hands of the “opposition party”, the science-driven one. By enacting these two executive orders president Bolsonaro aimed at changing federal institutions, but this time in a different direction from that exposed in his presidential campaign. Instead of enlarging policy competences of subnational governments, he aimed at restricting them.
The (then emerging) partisan conflict was processed by the institutions of a federal polity. The two presidential decrees were quickly challenged before the Supreme Court. On March 24, 2020, Justice Marco Aurelio Mello ruled that such matters referred to the shared competences over health policy. The decision was confirmed by the plenary of the Court on April 15. Subnational governments were confirmed as entitled to legislate over social distancing policies in whatever aspect. By doing so, the Court sided with subnational governments, changing a decision pattern which consisted of siding with Union claims regarding the centralization of policy decision-making (Vasconcellos and Arguelhes, 2021). In this sense, it could also be interpreted that the Court also took a partisan approach since president Bolsonaro’s negationist viewpoint was already clear at that point.
Under Covid-19 the federal executive was not missing in action. Instead, Bolsonaro has been the most active militant of the “negationist party”, by denying the use of masks, stimulating agglomerations, and prescribing the use of cloroquina. Indeed, he fired health ministers who tried to align themselves with the “science-driven party”.
President Bolsonaro did not change the institutions of the Brazilian federation. Despite (or maybe because of) his politics of intense confrontations with governors and other political powers, his legislative bills were defeated. The federal polity survived. It was just intergovernmental relations that sharply changed. Hopefully, a new president can employ the Union powers to nationally coordinate key policies.
References
Adolph, C., Amano, K., Bang-Jensen, B., Fullman, N., & Wilkerson, J. (2020). Pandemic Politics: Timing State-Level Social Distancing Responses to COVID-19. Journal of Health Politics, Policy and Law
Barberia, Lorena G. et al. The effect of state-level social distancing policy stringency on mobility in the states of Brazil. Revista de Administração Pública [online]. 2021, v. 55, n. 1, pp. 27-49.
Bednar, J.; Eskridge Jr., W.; Ferejohn, J., 1999. A Political Theory of Federalism. In Ferejohn, J.; Ravoke, J; Riley, J. Constitutional Culture and Democratic Rule. Cambridge: Cambridge University Press. p. 223-69.
Gomes, Sandra; Santana, Luciana; Bragatte, Marcelo; Silame, Thiago (no prelo). Governos estaduais e padrões decisórios no enfrentamento da Covid-19
Krugman, Paul (2021). Of Vaccine Mandates and Facing Reality, New York Times, September 30.
Moraes, Rodrigo Fracalossi de (2020b). A covid-19 e as medidas legais de distanciamento dos governos estaduais: análise comparativa do período de março a julho de 2020. Nota Técnica número 23. Brasília: DINTE/IPEA.
Moraes, Rodrigo Fracalossi de (2020a). Medidas legais de incentivo ao distanciamento social: comparação das políticas e governos estaduais e prefeituras das capitais no Brasil. Nota Técnica Número 16. Brasília: Dinte/IPEA.
Pereira, Ana Karine, Oliveira, Marília Silva e Sampaio, Thiago da Silva. Heterogeneidades das políticas estaduais de distanciamento social diante da COVID-19: aspectos políticos e técnico-administrativos. Revista de Administração Pública [online]. 2020, v. 54, n. 4, pp. 678-696.
Riker, W. , 1975. Federalism. In Greenstein, F. and Polsby, N. (ed). Handbook of Political Science. Massachussets: Addison-Wesley Publishing Company. pp.93-172.
Vasconcelos, N. P.; Arguelhes, Diego Werneck. (2021). Covid-19, federalismo e descentralização no STF: reorientação ou ajuste pontual?. In: Laura Muller Machado. (Org.). Legado de uma pandemia: 26 vozes discutem o aprendizado para política pública. 1ed.Rio de Janeiro: Autografia, p. 191-207.
