Rumblings of a Constitutional Assembly in Brazil

Brazil remains in ferment. The massive Lava Jato investigation turned three years old last month, and this week marked the one-year anniversary of the Chamber of Deputies’ vote to impeach Dilma Rousseff. Last week brought the release of long-anticipated “end of the world” testimony by 77 plea-bargaining Odebrecht executives, which implicated nearly one hundred senior politicians, including a third of the Senate, more than three dozen deputies, thirty percent of the cabinet ministers, and a handful of governors. All six living presidents, including incumbent Michel Temer, now face allegations of improprieties from Lava Jato.

Temer’s signature reforms, meanwhile, have hit a rough patch. A draft pension reform amendment was watered down before presentation in committee in an effort to bring reluctant deputies on board. In time-honored fashion, the President is on an appointment spree, doling out mid-level government posts to allies to ensure that he surpasses the 308 votes needed to push the amendment through the lower house. Odds are that some diluted version of pension reform will pass, but only because of old-fashioned horse-trading, rather than deep commitment. Protests are ramping up, with angry members of police unions breaking windows at Congress earlier this week. And the timetable is short, with a committee vote now postponed until May, even as the race heats up in the 2018 campaign for the most wide-open presidential contest in living memory.

In the midst of the polarization and uncertainty, luminaries across the political spectrum have floated a bold new idea: a constitutional assembly to break the logjam. At least three problems could be addressed by rewriting the 1988 Constitution:

1. the rule of law problem, best exemplified by the fact that none of the sitting federal politicians implicated in the Odebrecht testimony are likely to receive a definitive sentence from the slow-moving high court before the end of the next presidential term in 2022;
2. political fragmentation and weak links between voters and politicians, best exemplified by the fact that few voters can name their deputies, much less do anything to hold them accountable at election time, even though a large plurality of Congress is under investigation for corruption and other criminal acts;
3. the fiscal problem, exemplified best by the unsustainable path of the pension system, which the World Bank has argued requires urgent and much-needed reform, given rapid ageing, high benefit streams, inequality-augmenting privileges, and the system’s enormous burden on the budget.

In Washington this week, former president Rousseff called for a constitutional assembly to carry out political reform. Caio Magri, president of the progressive business group Instituto Ethos, echoed this idea from São Paulo, while calling on Temer to step down and hold early elections. Separately, the right-wing Estadão newspaper published a manifesto from three eminent lawyers—Modesto Carvalhosa, Flávio Bierrenbach, and José Carlos Dias—for a plebiscite to decide on whether to hold a constitutional assembly with an even broader remit: political reform, an end to special standing for politicians, and a review of the expensive fiscal guarantees in the current Constitution.

Interesting though these proposals may be, they face an uphill climb. A major new pact for constitutional reform seems unlikely before the end of Temer’s presidency: Temer shows no signs of relinquishing office and already has a full agenda of his own; congressional incumbents have little reason to reform the system they have prospered under; the public fears that any political pact would serve only to sweep the massive scandal under the rug; it is unclear who would have the legitimacy to set the agenda or convoke the assembly; and even if an assembly were called, there is little consensus about how to address the huge challenges the country faces. Meanwhile, critics of constitutional reform note that the underlying problem in Brazil has not been the constitution itself, but failure to heed the law as it was written: the off-the-books campaign finance, money laundering and corruption at the heart of the past few years’ turmoil are already illegal, after all.

That said, the shift in discourse is significant, inasmuch as it drives the public conversation toward the much needed task of developing concrete solutions to the intertwined political, economic, and judicial crises. In many ways, it also presages what is likely to be the central theme of the 2018 campaign and the next presidency: the airing of strong opinions about what went wrong, what is broken, and how best to go about reforming Brazilian democracy. This may provide a welcome respite from the acrimonious zero-sum polarization between the leading political parties, as well as an opportunity for a fledgling reformist movement to emerge from the wreckage of the three decade old political system.