The Role of Legislatures in the Policymaking Process∗ Sebastian M. Saiegh Department of Political Science University of Pittsburgh
[email protected] February 21, 2005
Abstract Legislatures are critical institutions in making a democratic system function. In most Latin American countries, however, the role of legislative institutions in the policymaking process is marginal at best. This paper attempts to evaluate the main factors that affect the role of Latin American legislatures in the policy-making process. I identify the contribution of legislatures to the overall policy-making process and the manner in which they exercise those roles. Next step I discuss some of the factors that contribute to differences among legislatures with respect to their ability to play an active role in the policymaking process. Finally, I summarize the analysis by classifying Latin American legislatures into different “types”.
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Prepared for delivery at the Workshop on State Reform, Public Policies and Policymaking Processes, Inter-American Development Bank, Washington D.C., Feb. 28-Mar. 2, 2005.
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1
Introduction
Legislatures are critical institutions in making a democratic system function. In most Latin American countries, however, the role of legislative institutions in the policymaking process is marginal at best; legislators are inexperienced and unaccustomed to their roles and responsibilities; and the power and authority of the legislature vis-`a-vis the other branches of government, particularly the executive, are often weak or not clearly defined. This paper attempts to evaluate the main factors that affect the role of Latin American legislatures in the policy-making process. The first step is to identify what is the contribution of the legislature to the overall policy-making process. The goal is to establish a set of criteria that will enable us to assess the extent to which a particular legislature fulfills the prescribed roles or not. The purpose is to move away from characterizations such as the legislature is a “strong” or “important” player and to propose a clear “metric” to evaluate whether a legislature is an active player or just a marginal one in the policymaking process. In other words, once we characterize what a particular legislative body may be able to do, and once we establish empirically what it is actually doing, we can then make a judgment call on how active such legislature is in a given country/period with respect to its specified role. Once we have surveyed the extent to which different legislatures play more or less actively some of their roles, the task is to identify the manner in which they exercise those roles. For example, some legislatures may be able to produce their own legislative proposals and thus challenge the executive branch, while some other legislatures may not. Alternatively, policy initiatives may be drafted by political parties and then presented to the party’s legislative contingent for their approval. In this case, we should examine the interaction between parties and legislatures. Notice also that a legislature can be very active either by blocking everything the executive branch proposes, or by reformulating and/or amending those initiatives. In this case, the key is to look at the interaction between the two branches of government. 2
The next step is to discuss some of the cross-legislature factors that contribute to differences among legislatures with respect to their ability to play an active role in the policymaking process. Among the several factors that drive a legislature’s role in the policymaking process, we should take into account (i) the extent of its formal powers; (ii) the adequacy of the capacity provided by its procedures/structures/support; (iii) the amount of political space/discretion afforded by other power holders (executives, parties); (iv) the goals of the members and leaders of the legislative bodies themselves. Finally, the last step is to summarize our analysis by identifying a few dimensions so that we can establish some sort of typology of the cases. Namely, the idea is to classify the different legislatures into a set of categories. For example, we may be able to identify a “very active, obstructionist and unrepresentative” legislature and distinguish it form a “very active, transformative and representative body”, or from a “marginal, non-obstructive, representative” legislature. In order to reach the enumerated goals, several key questions should be answered. These questions are both positive and normative. An important question arises first: how good is our existing knowledge on how legislative institutions operate? Next, three broad sets of questions will be useful in orienting our research on legislatures’ roles, and three additional sets of questions will useful for determining the factors behind the differences in legislatures’ abilities to play an active role in the policymaking process: 1. How much power does the existing institutional framework grant to the legislature? 2. What scope of action does the political system reserves for the legislature? 3. How much do legislators want to do to advance the institution as a significant actor in the policymaking process? 4. How well does the legislature interact with society? 5. How well does the legislature perform its lawmaking/oversight functions? 6. How well do systems of legislative management and infrastructure help the legislature perform its functions? Following are some types of questions this paper seeks to answer under each area. Answers to these questions will allow us to evaluate the different types of 3
legislatures with respect to their role in the policymaking process. The first question has to do with how much authority do the constitution and other organic laws grant the legislature: are members entitled to introduce legislation? If so, what is the scope of that power? Conversely, how much authority does the executive have to introduce and influence the course of legislation? What are the executive’s veto powers? Can the legislature override an executive veto – and how? Can the executive rule by decree? What oversight powers do the legislature posses? Does the legislature have the right to compel the executive to produce information about government operations? If so what is the scope of those powers? What powers does the legislature have to call to account and remove executive officials? More power to legislators may mean less for someone else. Who are the other significant actors in the political system? The list of potential rivals is long and includes other governing institutions and political parties. What is the role of regional interests? Do they think that a more active legislature would better represent them? The third question deals with the extent to which there is support for a larger role for the legislature among the legislators themselves: does a support base for legislative strengthening within the legislature exist? Can one be developed? The next question refers to the extent to which citizens are able to observe their legislature in operation: may citizens visit the legislature and attend committee or plenary sessions? Do legislators meet with citizens regularly? What is the level of access to information on the legislature? Does the legislature have a bill status system which allows legislators and the public to know where legislation is in the legislative process, and who is responsible for particular pieces of legislation? Does the legislature keep accurate records of votes and meetings, and is this information available to the public? In terms of lawmaking and oversight performance, the following questions are pertinent: are legislators equipped to draft legislation? Do they? Does the legislature have professional staff – either partisan or nonpartisan – to assist them in developing legislation? Is the staff adequately trained? Does the legislature have adequate information upon which to base decisions? Does the legislature have adequate financial resources for carrying out its responsibilities effectively? Are legislators willing to exercise the oversight authority they possess? Are staff and 4
information resources sufficient for the legislature to exercise effective oversight? Do political concerns preclude legislators utilizing the powers they possess? Finally, we want to know how well do systems of legislative management and infrastructure help the legislature perform its representation, lawmaking and oversight functions. Do legislative rules and procedures tend to help or hinder the legislature from performing effectively? Does the legislature keep accurate records, and are they available to the public? Are there regular policies in place for the management of the legislature? The answers to these questions will depend on each legislature’s formal powers and the political context in which it operates. For example, the structure and tenor of legislative-executive relations characterize the environment in which legislators operate. However, the shape of interbranch relationships has to be seen as the consequence of the branches’ capacities, and not as the reason why some legislatures are not so active in the policymaking process. Namely, the degree to which legislatures perform such functions as lawmaking, oversight and representation depend in great degree on their own organizational structure. On the other hand, the “activism” of a particular legislature will in turn depend on the structure of the legislature, as well as a country’s broader political institutions, its party and electoral system, and the preferences of those who run it. This initial study does not seek to cover everything in detail, though. The primary focus is to get a broad sense of the present circumstances of Latin American legislatures, and their potential to become an important actor in the policymaking process as defined by the laws, by politics, and by the incentives faced by its members. At this stage, thus the project’s value lies in two distinct areas. First, it yields extensive information on the internal organization of Latin American legislatures. This information is not easy to acquire and is absolutely necessary for any intelligent thinking about legislative policy-making processes. Thus, the data that we are in the process of collecting for this project is by itself a significant contribution. Most importantly, our findings will help us make informed recommendations about how Latin American legislatures can become more representative, more effective at lawmaking, and more capable of oversight. We should keep in mind, though, that we will not be able to empower legislatures if we do not establish the right incentives for individual legislators first. Many of the resources that make a legislature a proactive player in the policymaking process are “endogenous” to how much the legislators are motivated to develop 5
them. The institutionalization of any legislature starts with the recognition on the part of its members that they need to spend part of their time and effort on building a stronger collective body. Hence the focus should be on the incentives that legislators have to have in order to “invest” in the legislature. The remainder of this paper is organized as follows. In section 2 I discuss our existing knowledge on how legislative institutions operate in Latin American countries. Section 3 describes the role of the legislature in the overall policy-making process and the way in which they exercise those roles. Section 4 focuses the factors that affect how active a role in the policymaking process different legislatures have. In Section 5 I discuss briefly what type of generalizations can be made based on the available evidence. Conclusions follow.
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The Stock of Knowledge on Latin American Legislatures
The enormous literature on the United States Congress provides a detailed and relatively comprehensive understanding of this institution. In fact, we likely know more about it than about any other political institution in the world. Venturing outside of the United States however, one most commonly encounters legislatures that do not resemble the US Congress. This is particularly the case in the party-centered systems that dominate Latin American democracies. However, our knowledge on how legislative institutions operate in Latin America is still very rudimentary. Indeed, for many years the study of legislatures in Latin American countries was thought to be irrelevant and even frivolous so long as they had little (or no) significant in dictator-ridden polities. Fortunately, the Third Wave of democratization brought, among other things, a renewed interest in the role of legislatures. When democratic regimes started to show symptoms of consolidation, most students of Latin America turned from the problems of regime transition to the analysis of “democratic routines”, paying special attention to the capacity of institutions to shape public policy-making through their effects on political actors’ behavior. There are now several studies dealing with constitutional issues, and the relationship between the different branches of government. For example, most of
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the recent studies on legislative performance in Latin America (both scholarly and policy-oriented) have focused almost exclusively on the disproportionate power of the executive branch vis-´a-vis the legislature. According to the conventional view, Latin America countries are characterized by “proactive” executives and “reactive assemblies” (Cox & Morgestern, 2002; Amorin Neto, Cox and McCubbins, 2003). However, a closer examination of legislative-executive relations in some of these countries, shows that legislatures do not solely exist to “rubber stamp” executive decisions. By looking at the proportion of legislative initiatives of the executive that are approved by the lower house of the national legislature we can observe that Latin American presidents experience numerous legislative defeats. Take the case of Ecuador. During the 1979-1986 period, the legislature only approved an average 42% of the bills introduced by the president, with a maximum of 65 percent in 1992 and a minimum of 10.7 percent in 1986. The Venezuelan congress, in turn, approved on average 67% of Executive-initiated bills between 1959 and 1988, but it only passed an average 50% of those bills in the 1979-1983 legislative period. In fact, the success rate of Executive-initiated bills varies considerably across Latin American countries and through time within these countries. This evidence casts doubts on prior perceptions that legislatures in Latin America “rubber stamp” presidential initiatives. Of course, this does not mean that in these countries legislative bodies play a central role in the policymaking process. We also know that, in general, Latin American legislatures lack the organization, financial resources, experienced members and staff to serve as a mature and autonomous point of deliberation in the policy process. Thus, these legislatures – very much like the U.S. Congress at the end of the nineteenth century –, operate more as a blunt veto player (exercising gatekeeping and some other types of delay strategies) than as effective policy making bodies. We we know so far, thus is that the executive branch does not entirely dominate the legislature, but that legislatures in these countries need to enhance their capacity in matters such as policy-making, oversight, and representation. This characterization is good, but it is not good enough. Further research is needed. In particular, we need more studies that gives us a better understanding of the micro-dynamics of the legislative policy-making process. Researchers have recently became aware of this need. Not surprisingly, some of them have turned to theoretical models developed towards the analysis of the U.S. Congress. However, while studies of the US Congress are very helpful in generating general theory, they are 7
also quite limited in terms of extending general legislative theory due to their status as case studies of an atypical case. One of the goals of this paper is to fill this gap in our knowledge of how Latin American legislatures operate and their role in the overall policymaking process.
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The Role of a Legislature in the Policymaking Process
Modern democracies are characterized by shared decision-making by the legislative and executive branches: most policy initiatives are enacted into law, and thus must be approved by the legislature. It becomes very important then to identify what exactly is the contribution of the legislature to the overall policy-making process should be. USAID’s Handbook on Legislative Strengthening identifies three primary functions of a democratic legislature. These functions are briefly described as follows: 1. Representation. Legislatures listen to, communicate with, and represent the needs and wishes of citizens in policymaking; and intercede with government on behalf of the citizens. 2. Lawmaking. Legislatures identify problems, study issues, receive expert and public input, formulate or approve policies, and implement those polices through laws designed to address or remedy the problem or issue. 3. Oversight. Legislatures oversee the implementation of laws, policies, and programs by monitoring, reviewing, and investigating government activities to ensure that government actions are transparent, accountable, consistent with, and uphold existing laws and regulations. In addition, we can identify some other functions performed by at least some of the legislatures under study: (i) playing roles in executive removal (impeachment, votes of no confidence, censure), (ii) serving as a recruiting pools for other government positions. In general, a process of democratic governance is most legitimate when it characterized by transparency, pluralism, citizen involvement in decision-making, representation, and accountability. In the case of legislatures, their operations are 8
transparent when legislative sessions and members are accessible to the public, public information about legislative actions is readily available, and media coverage of the legislature is widespread. A legislature that is representative and participatory is characterized by citizens having access to, and input in, the policy making process through the legislature; there is high degree of interaction between members and citizens; issues are addressed or legislation amended because of public input or pressure; and civil society organizations, advocacy organizations, and/or interest groups are active participants in the legislative process. In terms of enacting policy, a proactive legislature is one in which the policy formulation and law making processes are the product of informed decision-making, and legislation is well-thought out and drafted. In terms of policy implementation, an accountable legislature ensures that laws and government programs are being implemented fairly and effectively; the national budget is scrutinized and agreed upon; public revenues and expenditures are monitored; and issues of public corruption and mismanagement are addressed. As mentioned in the introduction, the way in which these functions are carried out depends on the structure of the legislature, as well as a country’s broader political landscape. For example, when the PRI lost control of the Mexican Congress in 1997, different parties controlled the executive and legislative branches for the first time in the country’s modern history. Since then the Mexican Congress has increased its independence, assertiveness and willingness to criticize the executive. On the other hand, while the environment in which legislators operate is important, these actors do not necessarily need to be passive. They can change the environment in which they are operating. Take the case of Bolivia. In 1997 changes to the electoral system for its House of Deputies from pure party list to a mixed system were introduced, at least in part, to respond to the perception that the Congress was unresponsive to the needs of the electorate. The “activism” of a particular legislature thus cannot be isolated from its country’s broader political institutions. But the degree to which a legislature performs such functions as lawmaking, oversight and representation depend in great degree on its own organizational structure.
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4
Explaining the Variation in What Legislatures Do
I turn now to some of the cross-legislature factors that contribute to differences among legislatures with respect to their ability to play an active role in the policymaking process. Several factors drive a legislature’s role in the PMP: the extent of its formal powers; the adequacy of the capacity provided by its procedures/structures/support; the amount of political space/discretion afforded by other power holders (executives, parties); and the goals of the members and leaders of the legislative bodies themselves. Let me start by looking at the constituent units of a legislature: its members. The degree to which legislators influence and active in policymaking varies considerably. Their behavior is shaped by a variety of factors. These include personal motivations, how they view their jobs, and the variety of ways that they can respond to constituents. Member-constituent relations can affect each of the role of the legislature in the policymaking process by shaping member motivations and incentives, by providing local content and human context to decisions, and by providing a way for constituents to measure performance of legislators and to assess government actions. In other words, legislative behavior and the organization of legislative institutions are affected by electoral rules.
4.1
The Electoral Disconnection
The idea that the organization of the US Congress reflects the electoral incentives faced by its members has been a cornerstone of the American politics literature. The key question for comparative work is whether the assumptions behind the US case are appropriate in understanding how electoral rules shape legislative incentives elsewhere. In principle, non-US politicians are as strategic in their actions as their US counterparts. However, the political institutions that shape legislators’ incentives do vary across countries; career structure, electoral laws, and party rules can be very different. The question narrows, then, to the incentives these politicians face in different contexts. For example, if party nomination is inconsequential for electoral success, as is the case for incumbents in the Brazilian Chamber of Deputies, party renomination will play no substantial role in shaping legislators’ behavior. In contrast, there are situations, as in closed-list PR systems, where nomination at the top of a major party list can virtually guarantee electoral success. In this latter case, legislators’ behavior will be constrained by the renom10
ination rules but essentially unconstrained by the electoral process. Take the case of Argentina, a federal country with a closed-list PR electoral system. As Jones et. al. note, the process by which the provincial (district) party lists are formed tends to affect which candidates run on each party list, what order they occupy, and, consequently, their chances of winning a seat in the legislature. Moreover, these lists are often assembled at the district level by the respective local party boss. Therefore, legislators will have little incentive to work hard to improve their visibility in the eyes of the voters, and no incentive to develop legislative policy expertise. The aim of this example is to make the point that a legislature’s organization reflects the electoral incentives faced by its members. Figure 1 shows reelection rates for a cross-section of Latin American legislators. The change in legislative personnel is important because high turnover seriously curtails the chances of providing good representation. As figure 1 shows, reelection rates are very low in Latin America. On average, less than 40% of the legislators return to their seats. Uruguay shows the highest reelection rates with less than 60%. While in Argentina the typical legislator does not spend more than a 4-year term in office. < Figure 1 Here > The high levels of turnover may be seen as a sign of a “healthy” political system: the voters are voting the rascals out of office. However, this is seldom the case. In general, the biggest hurdle in the career path of Latin American legislators is posed by their own parties. Most party or executive dominated systems often have features that limit the development of constituency ties. These include prohibitions on re-election (Mexico), and devices that reduce the control constituents have over candidates (party list systems, large, at-large constituencies and tightly controlled candidate selection processes). But even when legislators develop close ties with constituents, these relationships may still compete with other loyalties, including those to their parties and leaders. Legislators are most likely to represent constituent interests when (i) they know precisely who their constituents are, (ii) they interact with them frequently, and (ii) their political futures depend on gaining and keeping constituent support. In terms the legislature’s own accountability, accessible or inadequate meeting facilities and/or insufficient time for legislators to meet with constituents also act as 11
constraints on relations between legislators and their constituents. In many countries citizens may not even enter the national legislature without an appointment. It is necessary that the legislature and legislators, as representatives of the people, communicates their deliberations and decisions to the public. Unfortunately, here the record of most Latin American legislatures is also wanting. < Table 1 Here > Table 1 shows the availability of public information regarding the legislature’s proceedings in 16 Latin American countries. Except for a few cases (Brazil, Chile, Peru, and Mexico), in most countries it is very difficult to obtain a record of the roll call votes in the legislature.
4.2
Agenda Control
Representing the public, though, means more than articulating citizen preferences. It also involves having a say in translating preferences into policy through enacting legislation. The representative and lawmaking functions co-exist in an uneasy but necessary relationship. Lawmaking requires reconciling of differences once articulated, as well as pressing the legislature’s claim to power against the executive and other power-holders, such as political parties. This requires legislative processes capable of reconciling conflicts and bringing to bear enough expertise to be taken seriously by the executive branch and other actors in the system. In general, for a bill to become law, it first must be approved by the legislature. Next, the executive branch has to enact or promulgate it, and then a bill becomes a law. In presidential regimes, the executive has the opportunity to reject legislation through the veto process. In turn, legislators may override a president’s veto and enact legislation without his/her signature. Besides this general characterization, though, legislative processes can and do vary. There is variation in the range of options on how to shape legislation (amendment, rejection, referral back to executive branch), in the finality of legislative passage (executive veto powers and override possibilities and requirements), and the impact of legislative rejection or inaction (including the possibility of executives ruling by decrees which have the force of law). For example, in some legislatures, bills submitted by the executive must be considered and acted on by the legislature, and the executive may even set a deadline for the legislature to act. This is the case in Chile, where the executive 12
determines the “urgency” of legislation, setting a timetable for legislative action. The following table gives an account of the rules and practices of agenda setting that are currently in force in 18 Latin American countries. < Table 2 Here > The table illustrates the effect of different veto procedures on the balance of power between the executive and legislative branches of government. In particular, it shows how amendatory veto power gives the executive branch substantial leverage in the legislative decision-making process. As it can be seen, in 10 of the countries (El Salvador, Nicaragua, Peru, Venezuela, Ecuador, Uruguay, Bolivia, Costa Rica, Mexico, and Chile) the prediction is that the executive branch can use amendatory observations to obtain its preferred policy. In five countries, the predicted outcome is a compromise between the policy positions of the legislature and the executive (Colombia, Paraguay, Panama, Brazil, and Argentina). In only three of the 18 countries the prediction is that the legislature will be able to impose its ideal policy. Agenda-setting rules that give to much power to the executive may end up undermining legislators’ interest in developing the capacities of the legislatures. In the case of Chile, the 1980 constitution sought to broaden and consolidate the powers of the military government. When the country transitioned to democratically elected government in the late 1980’s, many of the provisions of the 1980 constitution remained intact. Pinochet remained the head of the Armed Forces for eight years and the position of Senator for Life. Nine Senate seats were set-aside for appointed military leaders. This gave the right wing forces (who were military supporters) a majority of seats in the upper house. The constitution however severely limited the role of Congress in legislative matters relative to earlier legislatures in Chilean history. In several areas, the president was given sole authority to introduce bills. The president could grant certain initiatives priority status, requiring that Congress act within a short period. This gave the president the exclusive power to set the legislative agenda and, therefore, the political agenda. The legacy of Pinochet’s government contributed to the strong unity and discipline of the Concertacion parties. Both presidents and legislative leaders sought consensus and implemented moderate policies in the post-authoritarian era. However, some observers believe that this political accommodation will show cracks in the long-term. In particular, members of Congress may start to resent their lack of significant input into the policy process.
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4.3
Legislative Success Rates
The authority that these institutional rules grant the legislature are particularly important in the case of Latin America because most of them play a dominant role in the law-making process. They introduce a significant proportion of bills, and in some countries, they even have the monopoly of legislative initiative on important issues. For example, the role of the legislature with regard to budgetary legislation is highly limited everywhere except for Bolivia, Costa Rica, Guatemala, Honduras, and Paraguay. In all the other countries, the legislature can propose only those amendments that do not increase the deficit or the spending, and in several cases it can do so only with the approval of the president. Figure 2 shows the distribution of Latin American presidents’ legislative success rates. Legislative success is measured by the number of executive proposals approved in the lower house of the national legislature, divided by the total number of proposals introduced by the executive in a given period. The sample includes 11 countries for the period 1946-2000, including 207 country-year observations. Sometimes the sources reported the data in legislative terms, so to create annual observations, longer periods were apportioned to years taking as the criterion the state of affairs as of December 31 of each year.
< Figure 2 Here > On average, presidents get 64% of their bills approved by the lower house of their respective national legislatures. The lowest success rate, 8% corresponds to Colombia in 1993, followed by Brazil in 1954/55 (9.8%), Ecuador in 1986 (10.7%) and Costa Rica in 1989 (11.6%). Cardenas et. al. (2004) argue that Colombia’s 1991 constitutional reform had very deep and important effects on the country’s policy-making process. In the case of Brazil, Cheibub Figueiredo suggests that the meager success rate of the Caf’e Filho and Nereu Ramos administrations is explained by the limited powers awarded to the Chief Executive under the 1946 constitution. In fact, the average legislative success rate for different administrations during the whole 1947-64 period was less than 30% (Cheibub Figueiredo 2000: 10). With regard to Ecuador, Mej´ia Acosta (2000) argues that presidents have been very ineffective in getting their legislation passed due to the timing of elections. He claims that they have little time to learn how to make correct predictions about the expected support for their policies in congress. As for Costa Rica, according to Taylor-Robinson (2001), term limits explain low levels of legislative 14
support. She argues that deputies’ best opportunity for continuing in politics is to transfer their loyalty to new presidential candidates rather than to cooperate with incumbent presidents. Thus, even legislators from presidential parties have an incentive to oppose the president and wait to the next election. At the other end of the distribution, there are 19 observations were presidents got more than 95% of their bills approved: Mexico (1982-1996), Brazil (1973) and Paraguay (1990-1992). These are cases where the president could exert a lot of pressure over its legislative contingent. In fact, many observers would even argue wether we should consider these countries to be democratic in these years. In general, though, Latin American presidents do not seem to be less successful legislatively than presidents in other parts of the world. Table 3 displays descriptive statistics for the legislative success measure conditioned on regime type for a sample of non-Latin American countries. As the table shows, Chief Executives do not get their legislation approved all the time. Moreover, Latin American presidents are not “exceptional” with respect to their legislative success rates. < Table 3 Here > Instances where government bills make it all the way to the floor and are voted down are exceptional, but do occur. In general, tough, executive-initiated bills “die” in the legislature in other ways. Their fate depends on legislative procedures in each country, and in general, can be any of the following: a negative committee report which kills the bill; no committee report, so the bill never leaves the committee; a positive committee report, which makes it possible for the Floor to debate the bill, but does not guarantee that the bill will come up for debate; and outright defeat of the bill by the Floor. In most countries, bills that are not considered during a legislative year expire and have to be introduced again to the legislature in the following period. But in some other countries, legislative proposals can carry over into the following year. Thus, if a bill does not reach the floor, its “death” can be automatic after some period of time or can “languish” in the legislature for a longer period. The lifetime of bills before lapsing if they are not adopted varies considerably between countries. In some countries a bill must be passed within the legislative session in which is introduced. Otherwise, the bill has to be reintroduced in the next session. In some other countries, the lifetime of a bill is equal to that of a legislative term. Therefore, bills do not lapse unless the legislative term expires. Finally, in some other countries bills never lapse, except when they are explicitly rejected by a vote. This is the case, for example, in Argentina.
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Other bills do not die, but mat be amended by the legislature. Unfortunately I do not have data on legislative amendments to executive-initiated bills for these countries. Nonetheless we can identify some potential sources of variation by looking at the institutional rules that regulate the amendment process in different legislatures. For example, some legislatures require amendments to be supported by a particular number of legislators (in Brazil the number amounts to 26). My conjecture is that this type of restrictions will tend to affect smaller parties in the legislature and restrict their ability to influence the policy making process. Now, legislators can also propose their own legislation. Here the picture is even bleaker. Casar reports that in Mexico between 1982 and 1988, about six out of ten of all legislative proposals originated from legislative initiative, but of those only one out of twenty became law (Casar 2002: 126). This seems to be the pattern in most Latin American countries: while individual legislators have everywhere the right to introduce bills, the legislation most likely to be enacted is initiated by the executive branch. Table 4 presents data from Argentina, Honduras, and Paraguay. < Table 4 Here > We can see that in Honduras, there is a clear dominance of the executive over the legislature. The president was responsible for almost 75% of the laws that were passed by the Congress between 1990 and 1995. In contrast, both in Argentina and Paraguay, the majority of the laws enacted by the legislature were of legislative origin. In Argentina the president only is responsible for 48% of the total number of approved bills by Congress during this period. Likewise, in the case of Paraguay, legislators were responsible for roughly 60% of the approved bills. By looking at these data one may conclude that the executive is “dominant” in Honduras, and less so in Argentina or Paraguay. However, a different way to interpret these data is to look at the ratio of bills passed to bills introduced. The data show that in Honduras the legislature passed 80% of the executive-initiated bills, while individual legislators converted 43% of their bills into laws. In the case of Paraguay, the executive had 75% of its bills approved by the legislature, and legislators got 47% of their bills approved during the 1992-2003 period. While in Argentina, the ratio of bills passed to bills introduced amounted to almost 60% in the case of the executive and it was less than 5% for individual legislators. Now, a different picture emerges: in all countries the success of private member bills is lower that that of the executive. This is most notable in the Argentine case.
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Finally, one may look at total legislative output. The Argentine Congress passed 127 laws per year on average: 59 of them were initiated by the executive, and 68 were initiated by legislators. In the case of Paraguay, the average number of laws enacted by year amounted to 208, of which 84 were executive-initiated and the remaining 124 were of legislative origin. And in Honduras, the yearly average legislative output was 207 laws, of which 156 were initiated by the executive and the remaining 51 by members of the legislature. If one looks at total legislative output, yet another conclusion can be drawn from the data. The Paraguayan legislature seems to be the most “productive,” followed closely by Honduras, and then by Argentina. However, it is not a very good idea to compare legislative output across nations (D¨oring 1995; Trantas 1995). The main concern is that legal instruments are often defined in distinct way across nations. For example, in some countries, very trivial and non-controversial matters are subject of legislation driving legislative output up. In contrast, in some other countries, only relevant and controversial matters reach legislative stage, while all other matters are handled by the administration.
4.4
Committees
In most legislative bodies, committees are the workhorses of the legislative process. Referral to committee is usually a formal step in the process of adopting a bill. The possible roles of the committees, though, vary from country to country, depending upon the governing system, strength and organization of political parties, available resources and other political factors. In some legislatures, committees have the power to prevent unwanted legislation from being further considered, in others; the committee stage may be merely a formality. Committees usually reach decisions by a vote of the majority. The “majority” may not mean a majority of committee members, but a majority of a certain minimal number of members present (a quorum). Following the committee review proposed bills are then reported to the floor for further debate and voting. Bills may also be discharged from the committees and be submitted to the floor. However this usually entails a special procedure that requires the approval of all the legislative parties’ leaders in conjunction with the Speaker. In Latin American most legislatures have permanent committees with specific policy jurisdictions and legislation is routinely referred to these committees. The jurisdiction of the committee is usually defined by subject matter. A well-designed 17
system is one in which this definition tends to parallel the structure of the administrative or cabinet agencies. However this is the exception (i.e. Colombia) rather than the rule in Latin America. In general in most Latin American countries committee jurisdictions should be streamlined. Some committees have far too vast, and others far too narrow, a focus. As a result when many bills are referred to multiple committees, generating either turf fights or legislative paralysis ensues. For example, in the case of Argentina, according to the Chamber rules whenever a bill is referred to more than one committee, a committee on the whole (composed of all the members of the committees involved) has to agree before a bill is sent to the floor (article 102/Chamber of Deputies). This procedure creates multiple veto points. When the Appropriations committee is involved, the committee on the whole has to make a decision within a month. Otherwise, the lead committee can report the bill to the floor. Most bills dealing with economic issues are referred to the Appropriations committee. Therefore, a bill’s likelihood of approval depends on its content, but ceteris paribus tends to decrease as more committees are involved in the process. The number and size of committees also vary greatly and does not necessarily correspond to the size of the legislature. One would expect legislatures with many members to have relatively more committees than legislatures with few members. However, some small legislatures have relatively too many committees. The following figure shows the relative size of committees in 16 Latin American lower houses of their respective national legislatures. The size of these bodies range from 513 (Brazil) to 57 (Costa Rica) members and the number of committees from 7 (Colombia) to 48 (Honduras). It also includes, as a benchmark, the average ratio of the number of committees to the size of the legislature for a cross-section of nonLatin American countries. Compared to this benchmark, except for Colombia and Brazil, all the countries in this sample have too many committees relative to their size. The worst case is Paraguay with 25 standing committees in a 80-legislator body. Notice that too many committees vie for legislators’ effort. So in terms of the legislature role in the policymaking process, a system with too many committees overextend legislators and/or create duplication in their work. < Figure 3 Here > Committee composition and membership is thus very important. Legislative rules often require each legislator to sit on at least one committee, but they differ 18
in how members are selected and on the number of committees on which they can serve. These rules are important because the size of a committee may affect its ability to develop expertise and to function effectively. The following table contains information about specific committee rules based on 2004 data for 16 Latin American legislatures. < Table 5 Here > The first thing to notice is that these rules affect the number of committee slots. The size of committees can vary from countries like Argentina, which has more 675 slots, to Colombia, which has less than 250. In Argentina, for example, committees must normally have a minimum of 15 and a maximum of 25 members. The rules do not restrict multiple assignments. Moreover, during the 1983-2004 period the number of standing committees from 27 to 45, while the number of deputies increased only slightly from 254 to 257. And not only there has been a monotonic growth in the supply of committee slots, but also in the demand for them. The large number of Chamber committee assignments in the 2004 legislative period, for example, required every member to fill an average of 2.63 slots. Note that this is the minimum number of slots required on average to fill the 650 existing slots. However, the average Argentine deputy decided to serve on 4.5 committees! Comparative research shows the centrality of legislative committees as determinants of the approaches to policies and of the interests that prevail in processes of legislative policy-making. Strengthening the committee system is often seen as the appropriate vehicle to intensify a legislature’s capacity. However – as a well-established literature in political science shows – the stronger the committee system, the greater the risk of allowing special interests to dominate the legislative policy-making process. Thus, in order to make a correct evaluation of a legislature’s strength (and how to enhance it), we need to know more about how the particular committee systems works, and specially whose views and interests prevail in the legislative policy-making process. Committees with a large number of members may be unwieldy and ineffective. As Jones et. al indicate, in the Argentine chamber of deputies committees are too large and to unwieldy for the development of genuine expertise. The information in table 5 also gives us some understanding regarding the role of committees in the legislative policy-making process. For example, if committee members tend to serve particular constituencies (through specialization); or whether political parties and not committees have an upper hand in the policy-making process. I look at the legislature in each of these and focused on the number of committees each legislator serves on. Then, I 19
computed for each legislator the number of committees he/she serves on. Finally I compared the average number of committees the typical legislator serves on with the minimum and the maximum number of slots required on average to fill the existing slots. With this information I constructed an index of “specialization.” The data are presented in figure 4. < Figure 4 Here > We can see from the figure that Colombia, Brazil and Peru show the most specialized committees, while Paraguay, Guatemala and Honduras have to many committees with far too many members each. A further “test” of this lack of specialization is the relationship between committee membership and the electoral incentives of legislators. As posited above, organization of legislative institutions are affected by electoral rules. In those countries where legislators depend on particular constituencies to survive politically we should expect to see higher degree of specialization. < Table 6 Here > Table 6 presents the index on specialization alongside data on electoral institutions. In particular, whether ballot access is controlled by parties or is in the hands of individual candidates (Ballot=1 and 0, respectively). And an aggregate measure, PARTY, indicating the relative incentives of a given system for a “partisan” vote (it is constructed as the opposite of Hallerberg and Marier’s measure of “personal vote.” (also shown). It is worth noting that the relationship between electoral rules and specialization is statistically strong and significant: the index and the variable PARTY are correlated at .78. So what/who determines committee assignments? Unlike in the United States, there is no such thing as a seniority system. Committee and leadership assignments are made on a partisan basis. This partisan composition of committees usually reflects the relative strengths of the different parties represented in the legislature. Most chambers’ rules state that the composition of each committee shall proportionally reflect the partisan composition of the bodies as a whole. However, in some countries there are additional rules to ensure the representation of every party in the committees. For example, in El Salvador, small parties are assigned a seat on every committee. Thus, parties have a central role in this process.
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In the case of committee chairs, in many countries, these are chosen only from the majority party. In a few cases, such as in Argentina, members from opposition or minority parties may chair committees. In terms of their tenure, in some countries, for example Brazil, committee chairmanships rotate on an annual basis, therefore there are no longstanding powerful committee chairs, as in the US. With respect to the committees’ technical capacities, these also vary across the different legislatures. The extent to which a legislature is able to influence the policy making process depends on its capacity to gather and process information independent of the executive. It is often agreed that an effective legislature requires a highly complex structure that is capable of articulating conflict and reconciling differences, as well as information capacities that will enable it to initiate its own legislation and to analyze executive’s initiatives. Most studies suggest, thus, that a legislature’s strength, thus, depends on the possession on a number of critical resources that will allow its members to perform such tasks. One would expect that a well-developed committee system would also bring an additional resource, a competent staff, for the legislature. Unfortunately may be also be true as the quantity and quality of committee staff tend to reflect the relative importance of the committee system to the legislative institution. Arrangements for committee staff also vary greatly from one legislature to another. Some legislatures have no professional committee staff, other have large, qualified staff who are accorded substantial responsibility. In general, most committees have a secretariat that assists it with its functions. These secretariat functions include administrative, research and document preparation. The scope and range of this administrative assistance vary widely from one country to another. For example, in Argentina each committee has access to a secretary, an administrative secretary and two clerical assistants. However these personnel only perform administrative functions. In contrast, in El Salvador each committee has only 1 technical assistant and 1 secretary, but they perform all three secretarial functions. A study of the legislatures of Argentina, Bolivia, Brazil, Chile and Honduras conducted by Rundquist and Wellborn in 1994 concluded that the committees of these countries lacked skilled staff. The authors found that most committees had a single nonpartisan staff professional employed by the secretariat, supplemented by party-employed staff controlled by the chamber or committee party leadership (Rundquist and Wellborn 1993). Their assessment of the Argentine congress is gruesome: “rarely do committee (partisan and non-partisan) staffs number more than a half dozen.” (Rundquist and Wellborn 1993: 393). Wynia (1995) paints a 21
very similar picture: argentine legislators keep large congressional staffs, however these staff members are “under-prepared and inadequately financed” to conduct research on the executive’s proposals (Wynia 1995: 79). In the case of Mexico, according to Camp (1995), legislators are bereft of professional assistance and are staffed only by secretaries. Therefore, they usually rely on the executive branch for information, interpretations, and policy recommendations, rather than on their own or independent sources (Camp 1995: 24). The reliance on executive agencies’ expertise negatively affects a legislature’s role in the policymaking process. Unless they develop comparable levels of technical capacity, legislatures are at a disadvantage in evaluating executive-initiated bills. They are also at a disadvantage when it comes to holding the executive branch accountable. Usually besides their role in the lawmaking process, committees also play a critical function in the legislative oversight of the executive. Most oversight activities take place within permanent committees or in some cases committees specially assembled to that effect. Technical limitations aside, in spite of the importance of providing effective oversight, legislators may also lack the incentives to carry out this responsibility. Moreover, note that the existence of these kind of resources is “endogenous” to how much the legislators are motivated to develop them. The institutionalization of any legislature starts with the recognition on the part of its members that they need to spend part of their time and efforts toward building a stronger collective body. In other words, it is erroneous to think of a legislature’s lack of capacities (inadequately prepared legislators, lack of staff, inadequately trained staff) without taking into account political party dynamics and electoral incentives. Human and material resource constraints limit effectiveness of legislators in performing their mandated tasks and make difficult the practical implementation of weak and vaguely formulated laws. But improvements in human resources and physical equipment should be means to specific ends, not ends in themselves. New computers, for example, should fulfill a specific purpose in helping the legislature better fulfill its representation, lawmaking, and oversight functions. Demands for a more active legislature may be initiated from within the legislature. Legislative leaders may recognize the need for strengthening their institution, and establish a legislative modernization group responsible for institutional strengthening. On the other hand, legislative majorities may try to prevent legislative resources from getting to the minorities and this may conflict with goals like building non-partisan institutional capacity. 22
The point is that the political context in which the legislature operates plays a very important role in this story. For example, majority control by the government, coupled with party loyalty may limit a legislator’s motivation to criticize executive policies. This last point leads to the role of political parties in the legislative policymaking process.
4.5
Political Parties
(incomplete) Partisan politics significantly influence legislative policy-making. Along with committees, political parties are one of the major means of organizing the work of the legislature. Parties usually set policy agendas, nominate candidates and monitor the work of elected representatives. These activities usually take place in regular meetings of party caucuses. They usually take place once a week and it is here where party policy is established, party and legislative leaders (including in some cases committee chairs) are elected, internal party differences are resolved, strategies for passing legislation or publicizing important matters are developed. In other words, in most of these countries the overwhelming majority of decisions are made by party leaders or in party meetings. Moreover, as shown above, most committee chairpersons and members rotate on a regular basis. Thus, this gives them little opportunity to develop substantive expertise in the committees jurisdiction relative to the party cadres. The party system also tends to shape the degree of independence and assertiveness a given legislature exhibits. When a single party controls both the executive and legislature, then the chances for independent legislative decision-making diminish. For example, a governing party (or parties) may circumscribe its role in the legislature to merely transforming government policy into law. This task, of course, will be subject to a number of constraints: proportion of seats, intra-party cohesion, the committee system, and the strength of the opposition. Take the case of Mexico, even though the constitution grants the Congress a substantive role in the PMP, when the PRI controlled Mexican politics it was hardly an active player. But when control over the government was divided between the PRI and their opponents in the House of Deputies, the House became more assertive. Leaders of ruling and opposition parties can each also be constrained by back-
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benchers. In addition, coalition governments face the challenge of managing a relationship among different parties in the coalition. However, from the individual legislator’s point of view, the costs for challenging one’s party are likely to be very high - especially in party list systems where members depend on the good graces of their party for a good position on the list in the next election. When the legislative career of a legislator depends on his/her placement on the party list, the last thing he/she may want to do is to engage in activities that challenge the policies and actions of his/her own party’s government.
5
A Typology of Latin American Legislatures
TO BE WRITTEN.
6
Conclusions
TO BE WRITTEN.
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Tables and Figures Table 1. Electronic voting systems in Latin American legislatures Country Argentina Bolivia Brazil Chile Colombia Costa Rica Ecuador El Salvador Guatemala Honduras Mexico Nicaragua Panama Peru Uruguaye Venezuela
Chamber House Senate House Senate House Senate House Senate House Senate Unicameral Unicameral Unicameral Unicameral Unicameral House Senate Unicameral Unicameral Unicameral House Senate Unicameral
Installed Pre-1983; 2001 Pre-1983 2001 2001 Pre-1987 1990s 1990 None 1996(ish) none mid-1970s None None None None 1998 2002 2000
In use? Yes No No No Yes Yes Yes No Occas. No No No No No No Yes Yes Yes
Availability of electr. vote records Very Few
1998 None None 1997
Yes No No No
Congreso de la Republica
Source: Carey (2002).
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Camara dos Deputados Plenario In text of Boletin de Sesiones Not published.
Gaceta Parlamentaria Senado de la Republica website Not published
Table 2. Conditional Agenda Setting Country
Cond. A-S
Override
Default
Pred. Outcome
Dom. Rep. Guatemala Honduras
No No No
2/3 of Votes 2/3 of Votes 2/3 of Votes
Status Quo Status Quo Status Quo
Bill as originally passed b Bill as originally passed b Bill as originally passed b
Colombia Paraguay Panama
No No No
Majority of Members Majority of Members 2/3 of Votes
Status Quo Status Quo Status Quo
Partially Vetoed Bill Partially Vetoed Bill Partially Vetoed Bill
El Salvador Nicaragua Peru Venezuela
Yes Yes Yes Yes
Majority Majority Majority Majority
Status Status Status Status
Amended Amended Amended Amended
Brazil Argentina
No No
Majority of Members 2/3 of Votes
Partially Vetoed Bill Partially Vetoed Bill
Partially Vetoed Bill Partially Vetoed Bill
Ecuador Uruguay
Yes Yes
2/3 of Votes 3/5 of Members
Amended Bill Amended Bill
Amended Bill Amended Bill
Bolivia Costa Rica Mexico
Yes Yes Yes
2/3 of Votes 2/3 of Votes 2/3 of Votes
Status Quo Status Quo Status Quo
Amended Bill Amended Bill Amended Bill
Chile
Yes
2/3 of Votes
Partially Vetoed Bill
Amended Bill
of of of of
Members Members Members Members
Source: Aleman (2004).
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Quo Quo Quo Quo
Bill Bill Bill Bill
Table 3. Distribution of Chief Executive’ Legislative Success, by Regime Type (in country-years)
Parliamentarism
Mean Std. Dev. Minimum Maximum Obs. 81.76 12.46 34 100 314
Mixed
76.08
18.01
22.2
98
57
Presidentialism (excluding Lat. Am.)
70.22
16.49
36.2
93.1
61
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Table 4. Legislative Production Argentina, Honduras, and Paraguay
Argentina (1983-1997)
Government Bills 1485
Government Laws 887
Private Member Bills 21196
Private Member Laws 1015
Total Laws 1902
Honduras (1990-1995)
1150
935
708
305
1240
Paraguay (1992-2003)
1348
1009
3177
1486
2495
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Table 5. Committee Membership Rules
Argentina Brazil Chile Costa Rica Ecuador Guatemala Mexico Panama Paraguay Peru Uruguay Venezuela Honduras El Salvador Colombia Nicaragua
Size Leg.
No. Comm.
257 513 120 57 100 158 500 78 80 121 99 165 128 84 166 92
45 20 19 16 18 35 42 20 25 24 16 15 48 18 7 21
Size Committees Min. Max 15 31,35,40,45 0.03 0.12 13 13 5/9 5/9 7 7 7 11/15 30 7 7 6
7 3
25 7
Fixed
Fixed
Multiple Member Rest. No No No No Yes(2) No Yes(3) No No Yes(5) No No
Yes(2)
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Table 6. Committee Specialization and Electoral Rules
Paraguay Guatemala Argentina Panama Uruguay Costa Rica Chile Ecuador Venezuela Peru Mexico Brazil
RANK 1.28 0.805 0.41 0.07 0 -0.08 -0.11 -0.37 -0.485 -0.56 -0.57 -0.635
BALLOT 1 0 1 0 0 1 1 1 1 1 0.608611 0
POOL 1 0 1 0 0 1 1 1 1 0 0 1
30
VOTE 1 1 1 0 0 1 1 1 1 1 0 0
PERSONAL 0.08 0.24 0.11 0.39 0.38 0.11 0.43 0.4 0.23 0.5 0.17 0.62
PARTY 0.92 0.76 0.89 0.61 0.62 0.89 0.57 0.6 0.77 0.5 0.83 0.38
Figure 1: Reelection Rates
Reelection Rate
Uruguay (1989-1999)
Panama (1999)
Colombia (1994-2002)
Brazil (1985-2002)
Average
Paraguay (1998-2003)
Venezuela (1958-2000)
Ecuador (1996-2002)
Argentina (1983-2003)
Mexico(1934-1997) 0
10
20
30 Reelection Rate
31
40
50
60
.0 5 0
Fract ion
.1
Figure 2: Distribution of Latin American Presidents’ Legislative Success (in country-years)
0
20
40
60
LEGEFF
32
80
100
Figure 3: Ratio Committee/Size
Ratio COMM/SIZE
Brazil Colombia Average (Non-LatAm.) Mexico Venezuela Bolivia Costa Rica Chile Uruguay Average (LatAm) Argentina Ecuador Peru El Salvador Nicaragua Guatemala Panama Paraguay Honduras 0
0.05
0.1
0.15
0.2 Ratio COMM/SIZE
33
0.25
0.3
0.35
0.4
Figure 4: Committee Specialization
SPECIAL.
Paraguay Guatemala Honduras El Salvador Argentina Panama Uruguay Nicaragua Costa Rica Chile Ecuador Venezuela Peru Brazil Colombia -1.5
-1
-0.5
0
34
0.5
1
