Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
AccountabiZity as a ProbZem
of InstitutionaZ Arrangement in Sr&Z
Matthew M. Taylor
Vinz’ciusC. Buranelli
ABSTRACT
razilians often invoke the slang phrase acabou em pizza, literally “it
B ended up in pizza,” when a process results in few tangible results
after a lengthy delay. In recent years, press reports have frequently used
the term to describe the investigations of prominent corruption scandals,
as inquiries by the congress or prosecutors dragged on interminably
with little to show for their efforts. Public protests have used pizzas as
a powerful prop; one typical student protest in 2001 culminated in the
burning of a four-meter-wide cardboard version. Pizzas were an impor-
tant symbol for Luis Inhcio Lula da % h a in his successful 2002 bid for
the presidency (Folha de S2o P a d o 2001b, c, el.
Perceptions of corruption place Brazil among the second third o f
countries in the world; that is, not the most corrupt by any stretch.’ But
the perception that the law is applied weakly is widespread, and Brazil-
60 LATIN AMERICAN POLITICS AND SOCIETY 49: 1
ians judge compliance with the law in their country to be lower than
most of the rest of Latin America (Latinobar6metro 2004). A recent poll
found that corruption was citizens’ biggest embarrassment about being
Brazilian, ahead of the country’s violence and poverty (Estudo de Sao
Paul0 2005~).
Corruption is a recurring political issue in Brazil. Large scandals
have erupted over the course of each of the postdemocratic presiden-
cies. Jose Sarney faced a congressional inquiry that found endemic cor-
ruption in his administration; Fernando Collor was famously impeached
for corruption; Itamar Franco’s government saw an enormous scandal
regarding the congressional budget committee’s misappropriation of
funds; and the Fernando Henrique Cardoso administration faced allega-
tions of vote buying to ensure passage of a constitutional amendment
permitting re-election, among other scandals.
In 2005, as this article was being written, Lula’s government and his
Workers’ Party (PT) were also rocked by a huge financing scandal.
Funds allegedly were diverted-either through illicit campaign contri-
butions or through phony public contracts, it is not clear which-to pay
the PT’s campaign costs and “reward”congressional allies. The allega-
tions led to a proliferation of congressional investigations, captured
enormous media coverage (most comically when one PT member was
arrested at the airport with one hundred thousand U.S. dollars stashed
in his pants), and contributed to the rapid resignation of Lula’s influen-
tial chief of staff, the president of the Workers’ Party (PT), and a number
of other top officials.
This scandal, affecting a party that until recently was widely per-
ceived as one of the most ethical in Brazil, has resurrected perennial con-
cerns about the impact of corruption in Latin America’s largest democ-
racy. One concern is how to address corruption without undermining
faith in the democratic process. A not uncommon sequence following
allegations of political corruption is a flurry of accusations and counter-
accusations that do nothing to improve faith in the political system, and
are seldom effectively resolved in a timely fashion. While there is ample
consensus that corruption left unchecked hurts state capacity, under-
mines effective policy implementation, and weakens economic growth
(see, e.g., Bailey and Valenzuela 1997; Mauro 1995; Kaufmann et al.
19991, a poorly designed accountability process may contribute little to
actually fighting corruption and may occasionally undermine, rather than
strengthen, confidence in democratic institutions.
A second concern is that the constant scandals of the past 20 years
have decreased the effectiveness of democratic policymaking by gum-
ming u p the works. Not only does the reform agenda stall whenever
Congressional investigations are ongoing, but the Lula government, in its
attempt to shore up alliances, has emulated its predecessors by trading
TAYLOR AND BURANELLI: ACCOUNTABILITT IN BRAZIL 61
MIDLEVEL
INSTITUTIONS OF
IN BRAZIL
ACCOUNTABILITY
Each of the four key midlevel institutions of accountability faces varying
incentives to exercise its functions of oversight, investigation, and sanc-
tion. The Federal Public Ministry is arguably the most important institu-
tion of accountability at the federal level in Brazil. Theoretically, it
receives cases from society and the federal police, assembles the evi-
dence, and prosecutes. But in reality, the MPF has a highly dispersed
focus, a consequence of the its high degree of institutional independ-
ence, its small size, and the autonomy of individual prosecutors.
The MPF’s independence from the executive branch began in the
1980s and culminated in guarantees, in the 1988 Constitution, of insti-
64 LATIN AMERICAN POLITICS AND SOCIETY 49: 1
high volume of complaints that require investigation mean that the inves-
tigatory process in the MPF is weak and seldom sufficient to buttress
effective judicial action on its own.
Second, the MPF’s institutional performance is undermined by its
interaction with other institutions. There is a marked absence of per-
inanent links for cooperation on information gathering and investigation
between the MPF and other institutions. In none of the cases studied did
a clear pattern of institutionalized cooperation, coordination, informa-
tion sharing, or division of labor with other institutions emerge; this
shortcoming may prolong the investigative process and lead to the
duplication of information-gathering activities. As in many other coun-
tries, moreover, prosecutors are subject to strict rules o n what they can
do without judicial approval: wiretaps, the preventive arrest of suspects,
and the seizure of information all require a judge’s approval. There are
clear civil rights and privacy concerns that argue in favor of such restric-
tions. But there have also been frequent turf wars between the MPF and
federal police forces, which claim the right to investigative functions as
their own monopoly. As a result of the constraints placed on the MPF’s
role, prosecutors have sometimes resorted to ad hoc methods of obtain-
ing information, such as through leaks to the press intended to gener-
ate new information, investigations carried out by the MPF despite legal
contestation of its investigatory powers, and an increasing reliance on
criminal prosecutions, which increase the operational latitude of prose-
cutors (Arantes 2002, 158-59).
In sum, despite its strong independence and the high caliber of its
prosecutors, the MPF is poorly equipped for oversight. At the same time,
however, it has little control over the application of sanctions on wrong-
doers at the other end of the accountability process, and has not always
upheld prosecution as its first priority. It has few incentives for suc-
cessful prosecution: not only is promotion rigidly established according
to time of service, but promotores can glean greater public notoriety in
the investigatory stages than by successively completing lengthy prose-
cutions. This is true especially because the judicial system, with all its
delays and unpredictability, is seldom conducive to efficient prosecu-
tion. Many legal cases may take between five and ten years to complete;
in other words, between one-fifth and one-third of a prosecutor’s career.
As a result, the MPF’s success in effectively sanctioning public servants
has been mixed. ‘While much of the blame for this performance falls on
court delays, the MPF’s incentive structure itself also plays a role. The
dispersion of prosecutors’ attention across both the high-profile investi-
gatory stages and the slow and frequently delay-ridden sanctioning
stages tends to turn old cases, of which there are many, into a bureau-
cratic slog that has little likelihood of imposing rapid or effective sanc-
tions on offenders.
66 LATIN AMERICAN POLITICS AND SOCIETY 49: 1
Until when will we be quiet while the Ministkrio Pziblico earns the
credit for the Police’s work?...Until when will society be deceived
by the Ministkrio Pziblico, which claims to be the author of investi-
gations that always go right? [. . .I Ever since the 1988 Constitution
[. . .I the Ministkrio Pziblico has worked to build up a saintly image
that leads society to believe that [it] is the very envoy of God on
Earth, ready to redeem the sins of the Executive, Legislature, and
Judiciary. (Berredo 2003)
the MPF, with their acts regulated by the civil and penal code (Kimura
2001, 90). Like the MPF, CPIs are required to obtain judicial authoriza-
tion to tap telephone lines or search homes, and in order to overcome
bank secrecy laws, they must have the approval of a majority in Con-
gress (Pedone et al. 2002). Yet despite their strong investigatory powers,
the CPIs have n o punitive powers. They are restricted to filing their final
reports with the congressional ethics committee (if a congressional rep-
resentative is involved), or to sending their reports to the MPF for sub-
sequent action. Follow-up by Congress on these reports has been erratic
at best. Furthermore, fewer than one in five proposed CPIs actually are
created and conclude their work (Estado de Stio Paul0 2005b;
Figueiredo 2001).
The low degree of institutionalized interactions with other organiza-
tions and the circumscribed life and scope of a CPI’s investigations make
it somewhat difficult for CPIs to carry out complex investigations. It is not
unheard of for members of the MPF to refuse to cooperate with the work
of CPIs, fearing an improper weakening of the MPF’s institutional auton-
omy; and the federal police’s interaction with CPIs can be exceedingly
bureaucratic, responding to specific requests but doing little to carry
investigations forward beyond the narrow request. Often, the CPI’s inves-
tigations are too broad for their own limited capacity, and also require
additional time that would extend beyond the CPI’s fixed term. The sen-
ators, deputies, and their staffs in CPIs do not always have the necessary
technical skill for investigations that might be better carried out by the
MPF or the federal police. Furthermore, the temporary nature of the CPI
means that no institutional ties are permanently established.
Another problem is the inherently political nature of CPIs, which
reflect the interests of the majority in Congress and, therefore, frequently
those of the executive branch as well. As a result, when investigations
turn to civil servants or members of the executive branch, the perform-
ance of CPIs may reflect the political strength of governments more than
underlying culpability. The creation of a CPI is always a political choice,
so that in cases like that of Senator Luiz Otivio, none was created; in
the case of SUDAM, although opposition parties sought to open a CPI,
they could not overcome opposition from the governing majority.
The main problem associated with the CPIs is related to their coer-
civeness; that is, their ability to generate concrete sanctions. Even when
the CPI is effective in the investigative stage, its sanctioning capacity is
quite low. It is most effective in imposing reputational or political costs
when the accused are members of Congress who can be removed from
their posts. When the focus is o n malfeasance by those outside Con-
gress, the CPI is limited in what it can do, aside from sending all the
data it collects to the MPF, which then tries to build a judicial case.
Often, however, the final reports of CPIs are very inconclusive, provid-
TAYLOK AND BURANELLI: ACCOUNTABILITY IN BRAZIL 71
ing only broad explications of the cases under investigation and very
little material of any use in judicial proceedings. As a result, CPIs tend
to have few punitive repercussions for those outside the political world,
and especially for those outside the national congress. The sanctions o n
politicians, meanwhile, tend to be limited to removal from Congress,
either through expulsion (cassa@o) or voluntary resignation, followed
by few or n o penal or civil sanctions.
press as Lalau), with the participation of a senator, Luiz EstevBo, and the
president and vice president of the construction company that had won
the contract. Revelation of the illicit transfers led to the creation of a CPI,
which, in turn, ended in the forced resignation (cassa@o>of Senator
Luiz Estevso in June 2000. In December 2001, the accused were con-
demned by the TCU to return R$169.4 million to the public coffers. The
only judicial condemnation so far has been Lalau’s 14-year jail sentence,
which was commuted to house arrest (Folha de SGo Paulo 2001a, d,
2004a; Jornal do B r a d 1999a, b, e-i, 2000a-h; Isto E 1999c, d , 2000b, c;
Veja 1999b, c; Estado de SGo Paulo 2005a; Pedone et al. 2002; Speck and
Nagel 2002; TCU 2003; Brazil 1999a).
Senator Luis Otivio, from the state of Par& was accused of involvement
in a series of frauds against the national development bank (BNDES). A
company the senator ran, Rodomar, obtained special financing from the
BNDES in 1992 for the construction of 13 ferries. An investigation by the
federal police discovered that with the alleged connivance of func-
tionaries at the state-owned Banco do Brasil, Otgvio received R$13 mil-
lion to construct the ferries, which were never built.
These reports were taken to the Senate Ethics Commission in 2001,
but the case was filed away because the alleged wrongdoing took
place before Otivio became a senator. N o CPI was created to investi-
gate the case. Although a penal case is pending, there has been n o
judicial decision to date. Otivio was nominated by the outgoing Car-
doso government to become a minister of the TCU and was approved
by the Senate in June 2004, although that nomination has now been
shelved (Ac6rdPo 1608 at the Supreme Federal Tribunal; Correio
Braziliense 2004; Folha de SGo Paulo 2000a, 2001g, h, 2004b; Estado de
SGo Paulo 2004; Isto E 2000a).
missal of Ambassador Jtilio Gomes dos Santos and the federal air force
minister. The TCU concluded that the contracts in the case were above-
board, but a CPI found that corruption and influence trafficking were
prevalent in the program. Despite investigations by the MPF and the fed-
eral police, to date no judicial action has been taken against those impli-
cated by the CPI (Brazil 2002; Correio Braziliense 199513, 1996; Folha de
SGo Paul0 1995a, b, 1996; Isto E 1995, 1998; Carta Capital 2001).
2001f; Isto E 1999a-c; Estado de SZo Paul0 2000; 0 Gloho 2000; Veja
1999a, 2001a, b).
The six cases described here illustrate the importance of breaking the
accountability process into its component parts. As in most countries
and most major scandals, the oversight function failed in each case, with
allegations coming to light only after the alleged malfeasance had been
consummated. The size and scale of these cases, however, and the
timing with which they came to light for the most part suggest a slow
and inefficient oversight process.
In the Banco Marka case, the essential facts of the Central Bank's
action came to light less than a month after the alleged wrongdoing was
committed; but in both the Regional Labor Court and the Senator Luiz
Otgvio cases, the investigation began seven to eight years after the
wrongdoing allegedly first took place. In all but the Labor Court case (in
which the TCU raised concerns about the bidding process in 1993 that
went unheeded until 1998), alleged malfeasance was revealed not by
the accountability institutions but by whistleblowers, political adver-
saries, press reports, or a combination of the three. All of this suggests
that delays in the accountability process in Brazil are not due solely to
a slow judicial process, but also to slow and uncertain monitoring and
oversight processes.
When the alarm bells eventually went off, all the institutions jumped
into investigatory mode, producing overlapping investigations. On the
whole, their interaction is the source of considerable bureaucratic
rivalry, which can be salutary if it sparks deeper investigation. With no
central coordinator or any significant institutionalized lines of commu-
nication between bureaucracies, however, the investigatory process
tends to generate substantial amounts of pertinent information, but lacks
a clear chain of command or filtering process by which such informa-
tion could be effectively deployed. The media tend to be the only sys-
tematic aggregator of information, which means that once press atten-
tions turn elsewhere, pressures for accountability and the collation of
disparate information dissipate. Investigation is, moreover, a rather
lengthy process, with each of the institutions analyzed here participat-
ing for months o n end.
Table 1 gives an idea of the four institutions' length of involvement.
In analyzing how long the MPF worked on each case, the time between
when it began work and when it filed its first court case was used as
the gauge. The timeline here was dated from the last case filed in the
first round of filings.6
76 LATIN AMERICAN POLITICS AND SOCIETY 49: 1
Ministerio Federal
Case
~~~~
Public0 Police CPI TCU
,520 Paulo Labor Court 1,036 None 245 1,546
Senator Luiz Otivio 69 1,164 None Ongoing
Budget “Dwarves” 24 1 None 93 NA
SUDAM 391 365 None NA
SIVAM NA 366 293 237
Marka and FonteCindam 964 464 239 None
Average Days 540 590 218 892
Average Years 1.48 1.62 0.60 2.44
CONCLUSIONS
A properly functioning democracy is assumed to ensure the accounta-
bility of government officials for the “public-regarding” nature of their
acts; indeed, this is one of the key claims of democracy in relation to
other political regimes. This study has sought to explain why corruption
is a recurring theme in Brazil’s new democracy and why, despite the
considerable strengthening of institutions of accountability since Brazil’s
democratic transition, accountability for political corruption remains
weak.
Two potential sources of accountability that were not discussed
here clearly play a role. Judicial delays and congestion complicate the
task of carrying the legal sanctioning process to its natural end effi-
ciently; and weak electoral accountability in Brazilian politics, especially
the weak ties between voters and legislators, complicated by the loose
and undisciplined party system, creates perverse incentives for the cre-
ation of political alliances. These relationships create a self-reinforcing
cycle of policymaking for the sake of coalition building for the sake of
policymaking.
Not surprisingly, one of the first reactions when the current scandal
involving Lula and the PT hit Brasilia was a call for a comprehensive
political reform bill, an idea that is regularly bandied about in the wake
of scandal (e.g., Estado de Sao Paul0 2005d). Scandals come and scan-
dals go, but no serious political reform has been implemented since the
1988 Constitution. Judicial reform, too, has been halting: after nearly a
decade of deliberation, an otherwise welcome 2004 reform seems likely
to lead to only marginal gains in the efficiency and efficacy of courts,
with few effects in speeding u p legal sanctions or improving the incen-
tives for prosecutors in this phase of the accountability process.
TAYLOR AND BURANELLI: ACCOUNTABILITY IN BRAZIL 79
subordinate to the executive branch; the CPI and the TCU are both leg-
islatively controlled, if potentially subject to strong pressure from the
executive branch. The incentives for prosecutors are highly tilted toward
investigation rather than prosecution and sanction. The TCU, and espe-
cially its ministers, tends to be timid and risk-averse, with few incentives
for rigorous oversight except in extreme cases. The federal police have
few career incentives to cooperate with prosecutors and fewer still to
challenge the executive branch. Finally, CPIs are all about selective
investigation of high-profile cases, with no practical repercussions for
their frequent failure to sanction wrongdoers, or even to complete their
investigations once public attention has moved on to other matters.
Furthermore, there is no one central authority overseeing account-
ability actions from start to finish, which means that while allegations of
malfeasance or corruption may be plentiful-emerging from across the
range of institutions-there is little coordination or incentive to push for
practical sanctions, as there might be if the president’s or Congress’s
electoral success depended heavily on the successful prosecution of cor-
ruption. Presidents are often able to stay detached from the crisis, while
incumbent legislators are privileged by the absence of direct lines of
electoral responsibility in Brazil’s open-list proportional representative
system. The existence of competing bureaucracies in which “ambition
counteracts ambition” (Madison et al. 1961, 322) is certainly not a bad
thing. Yet when each of these centers has responsibility for only one
sliver of the accountability process, and almost all the incentives empha-
size the investigation stage, all the institutions compete acrimoniously in
an intense bureaucratic rivalry that brings n o compensatory perform-
ance gains.
To put it in Brazilian terms, everything ends u p in pizza, and dis-
trust may increase with all the pernicious corollaries that one might
expect: declining confidence in government, poor compliance with the
law, and perhaps even dissatisfaction with democracy.’ As Levi (1999)
has noted, the implicit goals of the accountability process are threefold:
punishing those who transgress, preventing would-be transgressors
from engaging in illicit acts, and fostering trust by convincing “contin-
gent consenters” of the need to cooperate rather than defect.
Because so many of the institutional incentives in postauthoritarian
Brazil tilt toward investigation rather than sanction once allegations have
been made, the process tends to weaken trust in government without
any compensatory punishment of malfeasance. Other collateral effects
on democracy are also significant: ineffective preventive monitoring con-
tributes to the unchecked expansion of abuses that are discovered only
when they reach significant scale; and subsequent investigations influ-
ence policy formulation in other realms by clogging the political process,
but also by diminishing confidence in the criteria by which policy
TAYLOR AND BURANELLI: ACCOUNTABILITY IN BRAZIL 81
ity between the electorate and politicians, focusing primarily on the problems
engendered by open-list proportional representation in establishing clear lines
of vertical responsibility (e.g., Ames 2001). Political oversight of public bureau-
cracies is perceived to be weak in light of strong executive power, the strength
of regional power brokers, and party fragmentation.
The second institution is the judiciary, which arguably has the most impor-
tant role of all in sanctioning corrupt behavior. But it is excluded from the
broader analysis here primarily because it is typically engaged only in the last
stage of the process, and is activated by other institutions rather than actively
pursuing cases to enforce accountability. For the purposes of this study, it is suf-
ficient to note that the Brazilian courts permit repeated appeals and procedural
delays (Taylor 2005); one major challenge accountability holders thus face is
obtaining a final and unappealable conviction before the statute of limitations
on crimes expires. As a result, the courts play an important role in structuring
incentives, especially in the final phase of the accountability process.
Among the many other formal federal government institutions that may
play a tangential role in the accountability process are the Revenue Service
(Receita Federal), through its oversight of financial information; and the Central
Bank, through its control and regulation of capital flows and supervision of
banks. Other institutions outside the federal government that play a role include
the media and state and municipal institutions, such as the state minist&ios
ptiblicos. A final institution worth noting is the Corregedoria Geral da UnMo
(roughly translated as Federal Comptroller General). Created in 2001 to investi-
gate crimes against the public treasury, the Corregedoria Geral is subordinate to
the executive branch. Its performance is not analyzed in the six subject cases,
which predate its creation, but it should be an important player in the web of
accountability institutions in the years to come. ’
this phase was inconclusive. The measurement here includes both investiga-
tions. The TCU undertook several small-bore cases in pursuit of the budget
dwarves, but none that covered the full budget operation. In the SUDAM case,
although the press reported fines imposed by the TCU, the researchers were
unable to obtain the case files that would permit them to measure time elapsed
in this TCU investigation.
7. According to the World Values Survey, 78 percent of Brazilians prefer
democracy among all political regimes, but only 28 percent are satisfied with
democracy as it stands (Abranches 2001).
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