Constitutionalism under Bolsonaro

On the eve of a fateful election that will determine whether the last four years have been a bad dream and a footnote in Brazil’s political history, or not, the legacy of Bolsonaro’s regime for constitutional law and constitutionalism is widely and expertly discussed, not least around the concept of authoritarian constitutionalism and not least in this Verfassungsblog symposium. This discussion is all the more important as the constitutional scenario that has unfolded during the period of his incumbency is as complex as it is paradoxical. Despite all his rhetorical machismo, Bolsonaro has not governed as a classical autocrat: he was democratically elected and his subsequent administration always found itself between the rock of a fragmented, yet viscerally opportunistic legislature, and the hard place of a judiciary that – while not always unsympathetic to his program – has been primarily interested in safeguarding its autonomy and its (self-)assumed role as the last word on virtually everything.

In the Maze of Brazilian Constitutionalism

The ways in which Bolsonaro has sought to skirt these constraints typical of modern-day liberal-representative democracy are as paradoxical as they conform to the (right-wing) populist script the world over. In typical right-wing populist fashion, he has, on the one hand, set himself up as the immediate representative of ‘the people’ against ‘the system’ (aka the legislature and judiciary), transporting this image primarily through two key channels: the exponentially growing number of fundamentalist Christian churches and, partly overlapping, the section of the populace receptive to hard right and neo-fascist ideas (especially on race, gender, women etc.), which is estimated to amount to a fourth or a fifth of the electorate. On the other hand, he has, again paradoxically, happily tapped into the ‘deep state’, much maligned by his own ever conspiracy-theorizing hordes, yet handy when it comes to promoting counter-majoritarian agendas without public debate; and to that end has co-opted the military and infiltrated it into a wide range of senior administrative positions, while simultaneously (and adding further paradox to the already paradoxical) wooing the country’s economic elite, in particular agribusiness and the financial sector, by adopting a hard neoliberal program focussed on austerity, deregulation and the dismantling of public services and infrastructures.

However, none of these efforts have managed to fundamentally reconfigure the ‘living constitution’, i.e. the real-life (rather than textbook) constitutionalism as it has evolved since the re-democratization in 1988. Yet, this is not so much due to the popular trope of armchair democrats, namely the inherent resilience of ‘democratic institutions’, but rather to the extraordinarily complex, multi-dimensional and, indeed, partly paradoxical constitutional system that has emerged in the country over the past 30-something years. It now draws all actors and institutions in a legal maze which has effectively, often unpredictably, defined as much as constrained Brazil’s political game. This does not mean that radical rupture has become impossible or that Bolsonaro and his set, following Trump, would not actively dream thereof. But it is remarkable how this ‘system’ has effectively subjected even its open detractors to a certain functional logic from which neither they nor anyone else (including the progressive political project now hoping to electorally defeat the incumbent) has so far managed to entirely escape.

The Tchuchuka of Many Tigers: Bolsonaro between Authoritarianism and Opportunism

An anecdotal case in point is a recent incident in which Bolsonaro was heckled during an election rally by an up to then little-known professional political stalker (aka ‘influencer’ aka ‘YouTuber’) who, inter alia, accused the president of being a Tchutchuca do Centrão. The Centrão is a cipher for the powerful block of parties and constituencies that has represented traditional local and sectoral interests and that has been a (nearly) inevitable power broker for all governments, federal and local, since re-democratization. It is deeply opportunistic, associated with endemic corruption and tends to be politically conservative, though has always been ideologically ‘flexible’ in return for sufficient payoff. While the Centrão, together with ‘the left’, was initially one of Bolsonaro’s main targets and got bruised in the 2018 election, he was nonetheless forced to enter into a congressional alliance with it in order to assure minimal governability, a move that his base took badly but eventually swallowed.

For our purposes, the interesting part is however Bolsonaro’s ad hoc response to the ‘YouTuber’s’ rant, which merits to be reproduced in full (rendition by the author):

I need to get things through Parliament, right? If I was to enact [laws] on my own, I’d be a dictator. Close everything, close the Supreme Court (STF), close Congress, close everything and I get things done by myself. [But] I need the support of Parliament. The parties of the centre [i.e. Centrão] are almost 300 of 513 MPs. Am I able to pass even a simple bill without these 300 votes?  

This shows a wanna-be autocrat admitting to being constrained by a legislature and a (high) court which he blames for his government’s incapacity to break out of the ‘normal politics’ that is guaranteed by the constitutional division of power. Although his government has tried hard to destroy the institutional infrastructure and social base that ensures such ‘normal politics’, burdening any subsequent government with many open wounds, the Bolsonaro regime still remained subject to a constitutional dynamics neither it nor anyone else seems entirely able to control.

Cat and Mouse in the Maze: Populists, Courts, and the Inflections of Constitutionalism

Arguably, the reason for this is not the liberal commonplace about the inherent resilience of democratic institutions. Bolsonaro’s success in mobilizing anti-democratic sentiments makes such a ‘happy ending’ too good to be true. However, neither have his autocratic impulses managed to entirely undermine or even reprogram constitutional governance in the country. Indeed, the tchuchuka incident highlights how he and his anti-democratic allies are ultimately wrestled down by the structural modus operandi of Brazilian politics. That modus operandi is imperfectly subsumed under the term coalition presidentialism and emanates from what may be called the country’s ‘federalist predicament’, arguably the central background condition of Brazilian politics ever since colonial times.

It has meant that transformational political projects – whether from the left or from the right – have always been pitted against deeply entrenched regional and sectoral special interests, which have invariably been able to mobilize enough political power to veto, undermine or water down any of them. This has inscribed into Brazilian democratic governance an always uneasy necessity to balance centralist reformism with decentralized status quo politics – a predicament all of the country’s eight constitutions since its independence from Portugal in 1822 have faced. The resulting coalition presidentialism has impelled reformist executives to forge broad, variable and often volatile alliances in Congress and with state governors in order to guarantee governability; a quandary that has ensured that traditional, non-transformational interests have nearly always been (over-)represented and able to render most public policy attempts inoffensive (to them). These interests (aka the broader Centrão) have thus been the tigrão, in relation to which transformative political projects – whether progressive or reactionary, as in Bolsonaro’s case – seeking to structurally change the status quo have literally been “tchuchuka’ed”.

While the 1988 constitution is an attempt to at least partly overcome these structural determinants, for instance through a very wide-ranging bill of rights and a number of ‘directive’ elements (such as minimum spending thresholds for key public services) that are aiming to direct public policy away from traditional ‘normal politics’ – it still reflects and safeguards the interests represented by the Centrão. More importantly, constitutional practice has seen the old modus operandi continue to be the principal structuring logic of the political process instituted by the constitution since its adoption.

To students of Brazilian politics, or of politics in general, this may not be surprising. What may be more surprising is the fact that almost all aspects of this de facto constitutional regime are fully legalized, forming an almost all-encompassing legal maze which engulfs everyone and even Bolsonaro. The surprise here may come from the seemingly counterintuitive fact that Centrão politics is mostly associated with de-formalized political backroom dealing and corruption in its various facets; but in the constitutional reality of post-1988 Brazil even such classically (neo-)corporatist modes of governance have taken place within a legal maze that has the constitution and its institutional dispositions at its center. This maze constrains political action, though importantly, it does so diffusely, decentrally and non-hierarchically. It is not controlled and configured by any enlightened apex court, self-reflective legislature or restrained executive, but rather takes effect through the confluence of all actors and actions across the federal matrix. Hence, the political action vectors are often non-linear and the outcomes indeterminate.

This is also apparent in another notable incident, namely the recent Lava Jato (‘car wash’) corruption investigation, which emerged in the tension field of a crusade against social democratic reformism on part of the traditional ‘owners of power’ (aka the wider Centrão), and a (self-)empowered judiciary aspiring to a judicial (counter-)revolution of sorts. The operation employed gung-ho lawfaring tactics to tighten the legal maze for the executive and the legislature, though it did so by pushing criminal procedure beyond the limits of the very rule of law in the name of which it purportedly conducted the operation. For some time, most of the political system held its breath and was rendered largely dysfunctional, fearing arrest on corruption charges until Congress and part of the judiciary itself changed track and began to reverse some of the excesses they had themselves committed.

The shock election of Bolsonaro in 2018 accelerated but did not trigger this reversal – another irony given that he campaigned on a radical anti-corruption agenda and appointed Lava Jato’s godfather as his first justice minister; but this turnaround did not happen because of some institutional rupture Bolsonaro would have succeeded in carrying out. In fact, during the ensuing COVID-19 pandemic he found himself pushed ever deeper into the legal maze, facing the joint action of the Supreme Court, several state executives, and parts of the legislature. Typically, however, this did not again result in a real opening of the maze in form of his formal impeachment, but rather in a continuation of the usual cat and mouse game within the maze, with the added complexity of cat and mouse constantly changing their identity and position. Whether the upcoming election will result in the eventual undoing of this maze, for better (if a progressive government is elected and manages to carry out deeper political reform) or for worse (if Bolsonaro is re-elected and, with the military’s help, throws the constitution in the bin), or whether it will persist as the determining factor of Brazilian politics remains to be seen.