Amendments favor Bolsonaro allies on the eve of election, critics say

The Jair Bolsonaro (PL) government’s maneuver to release parliamentary amendments, at the expense of budget cuts in science and culture, became the target of criticism from experts for running over expenses already decided by the National Congress and privileging the president’s allies on the eve of the election.

Opposition acronyms triggered the STF (Supreme Federal Court) in an attempt to suspend the cuts, as well as the decree that authorized the government to unlock R$ 3.5 billion in rapporteur amendments, used as a bargaining chip in negotiations with Parliament. The act was published on the night of September 6, the eve of the Independence Bicentennial holiday.

The author of one of the actions, the PSOL states that the allocation of these funds “interferes with the fairness and balance of the elections, affecting equal opportunities between candidates”. For jurists, the subject may be evaluated by the Electoral Court, although there is still no consolidated position on the subject.

This will be the first election for state and federal positions, including seats in the National Congress, held under the rapporteur’s amendments mechanism, established in 2019 to take effect in the following year.

The Senate minority leader, Jean Paul Prates (PT-RN), presented a draft legislative decree with the same objective of nullifying the effects of the decree that released the rapporteur’s amendments, but the text has not yet been analyzed by the Legislative – some of its members will benefit from the maneuver.

Lawyer Francisco Zardo, a professor of administrative law, recalls that the framework of electoral rules was prepared before the creation of the rapporteur’s amendments. Therefore, although the electoral law (whose original text is from 1997) leaves room for the effort of amendments during the electoral period, this does not mean that the issue is free of controversy.

“The public budget cannot be used to obtain profit in elections. [da lei eleitoral] they are looking for that”, he says. “I would have to analyze all this engineering to know if there is in fact an attempt to use the Budget with an electoral objective. If confirmed, it would be an abuse of political power,” he says.

Commitment is the first phase of spending, when the government commits to a specific contracting of goods or services. According to government technicians, the AGU (Advocacy-General of the Union) has an interpretation that the electoral law prohibits the financial transfer of expenses that were not already in progress.

In this way, “preparatory acts” for the execution of amendments —such as the commitment of expenditure— would be authorized even during electoral periods.

The release of the amendments was possible after an engineering by the Bolsonaro government to, unilaterally, cut expenses that had already been authorized by the National Congress. The scissor made room for amendments within the spending ceiling — a fiscal rule that limits the advance of expenses to inflation.

The maneuver, revealed by the Sheet, involved two MPs (provisional measures) edited by Bolsonaro to postpone or limit science and culture expenditures previously approved by the Legislature. As they are effective immediately, the measures allowed spending BRL 5.6 billion in spending for 2023 and paving the way for the release of BRL 3.5 billion in spending stamped by parliamentarians.

One of the MPs limited the spending of the FNDCT (National Fund for Scientific and Technological Development) in 2022 to R$ 5.6 billion. As the obligation was greater before, in practice the government gained space in the Budget.

The other measure postponed the transfers of the Paulo Gustavo (R$ 3.8 billion this year) and Aldir Blanc laws, of aid to culture in states and municipalities, and the Perse (Emergency Program for the Resumption of the Events Sector), approved by Congress. as a response to the crisis caused by the Covid-19 pandemic in these sectors.

The transfers had been authorized by Congress, but were vetoed by Bolsonaro. In reaction, the Legislature overrode the vetoes, reinstating the financial aid, now postponed at the stroke of a pen by the President of the Republic.

A provisional measure has the force of law from the moment of its publication, lasting up to 120 days — a period in which it needs to be ratified by parliamentarians to remain in force. In practice, even if congressmen refuse to vote on the text, it will only expire next year, and the expense will have already been postponed.

The executive director of the IFI (Independent Fiscal Institution) of the Senate, Daniel Couri, highlights that, in the exposition of reasons for sending the MPs, the government claims that the cuts were necessary to allow the “planned disbursement” of the resources, respecting the cost ceiling.

“If the government has to comply with the fund’s binding [FNDCT], has a problem with the ceiling. But deep down they are making room to spend more inside the ceiling. In other words, the MP pedals these expenses, and the government uses this space to free up amendments”, analyzes Couri.

“It’s a fragile argument. They didn’t want to say that they have other priorities to spend”, he criticizes.

The executive director of the IFI also assesses that the maneuver is a “way of circumventing” a choice made by the Legislature, to allocate more resources to science and culture. “The MP takes away the chance for Congress to make the allocative choice,” he says.

Lawyer Francisco Zardo says that the rules that govern the FNDCT are provided for in a complementary law, an instrument that, as a rule, cannot be modified by MP — the provisional measure, when approved, is converted into an ordinary law, which is one step down in the hierarchy of laws in the Brazilian framework.

“This point deserves a legal analysis, as it can be an insurmountable obstacle to the advancement of this MP. If anyone concludes that [a medida] is altering a matter reserved for the complementary law, it is even unconstitutional”, he says.

Zardo also points out that a complementary law passed in 2021 by the National Congress explicitly prohibits the limitation of expenses “related to innovation and scientific and technological development funded by a fund created for this purpose”. This provision was included in the LRF (Law of Fiscal Responsibility) and is still in force. Therefore, in the lawyer’s opinion, it may represent a legal obstacle to the government’s maneuver.

The amendments became strategic in the reelection of parliamentarians. According to data from Diap (Inter-union Department of Parliamentary Advice), of the 513 federal deputies, 446 will seek reelection, which represents 86.93% of the Chamber.

In the Federal Senate, of the 27 senators at the end of their term, 12 will seek reelection (44.44%). Even among those who will not seek a new term, there are those who seek election in another office.

In addition, the president of the Chamber, Arthur Lira (PP-AL), hopes with the amendments to have the firepower to garner support and get his re-election to the command of the House in 2023, as shown by the Sheet.