The STF (Supreme Federal Court) formed a majority this Tuesday (9) to uphold the decision of Minister Rosa Weber to prohibit payment of the rapporteur’s amendments to deputies and senators.
These resources were managed by government officials with the support of the Planalto Palace on the eve of important votes for the Executive.
The STF decision has the potential to trigger a crisis and pit the Supreme, Legislative and Executive. Ministers LuÃs Roberto Barroso, Edson Fachin, Carmen Lúcia, Ricardo Lewandowski and Alexandre de Moraes voted to uphold Rosa Weber’s decision.
Minister Gilmar Mendes was the only one to disagree so far. He voted to maintain the execution of the amendments, but stated that, to do so, it would be necessary to adopt measures “so that the decisions of the ministerial portfolios regarding the acceptance or rejection of requests made by members of the National Congress are publicized” .
The judgment takes place in the virtual plenary and the other magistrates can include their votes in the system until 23:59 on Wednesday (10). Ministers who have already voted also have until this date to change their position, but it is unusual for this to happen.
In addition, there is the possibility of a magistrate asking for a view (more time to analyze the case) and interrupting the trial. In that case, Rosa Weber’s individual decision would still apply. Another hypothesis is for a minister to ask to be highlighted to remove the analysis of the topic from the virtual environment and resume it in the face-to-face plenary, which would also not have the power to overturn the effectiveness of the rapporteur’s court order.​
By the majority formed so far, the execution of these amendments must be suspended “entirely and immediately”. In addition, Congress is expected to give “wide publicity, in a centralized public access platform”, to all documents related to the distribution of these funds in 2020 and 2021.
The decision states that the transfers should be suspended until the STF judges the merits of the PSOL action that is under discussion. In the current judgment, the granting of a preliminary injunction (provisional) on the matter is being debated. There is still no date for analyzing the merits of the case.
The six ministers who have already taken a stand agreed with Rosa Weber’s thesis that there is no transparency in the transfer of these amendments and, therefore, they violate the constitutional principles of “legality, impersonality, morality, publicity and efficiency”. Rapporteur amendments represented the government’s main bargaining chip in important congressional votes.
The money available this year is R$ 16.8 billion. Before the approval of the PEC do Calote, also called the PEC dos Precatório, for example, R$ 1 billion were released in amendments of this nature. This proposal allows for the expansion of public spending and makes possible the expansion of AuxÃlio Brasil promised by President Jair Bolsonaro in an election year.
The basic text was approved in the first round by 312 to 144. It is expected that the highlights and the second round will be appreciated on Tuesday (9).
The STF decision should make life difficult for the government in Congress and could generate a crisis between the Powers. Planalto Palace had already faced difficulties in approving matters it considers important, mainly on issues that depend on a change in the Constitution, which requires the support of 308 deputies.
In addition to the question of precatories, the administrative reform, for example, will need the same amount of votes in parliament to be approved.
The government’s fear of overturning the amendments was made explicit on Monday (8), when President Jair Bolsonaro criticized Rosa Weber’s decision.
For the representative, the arguments used by the minister “are not fair” and there is no “bargain” in releasing these amendments.
“Now, the arguments used by the rapporteur of the Supreme Court are not fair, to say that we are bargaining. How can I bargain if who owns the pen is the rapporteur, a congressman? And it isn’t [orçamento] secret because it is in the Official Gazette of the Union,” said Bolsonaro, in an interview with Jovem Pan.
Rosa Weber, however, was harshly critical of the amendments and said they had been distorted over time.
According to the minister, these amendments were instituted in 2006 with the purpose of “giving the general rapporteur of the budget bill the necessary powers to organize the set of changes introduced in the initial legislative proposal”.
In 2020, however, they gained a new format. “Until fiscal 2019, expenses arising from the rapporteur’s amendments did not have their own budget classification indicator,” he said. According to her, this means that, once the budget bill has been approved, “it is no longer possible to distinguish whether the expenses foreseen in it resulted from the original bill or from the rapporteur’s amendment”.
The minister stated that the suspension is necessary because these resources controlled by the rapporteur create a privileged group of parliamentarians who will be able to allocate a greater volume of resources to their electoral bases.
The magistrate also said that there is a lack of transparency in the destination of these amendments.
There is no way to know who are, in fact, the federal deputies and senators that make up this unknown group, as the budget schedule used for this purpose only identifies the figure of the general rapporteur
In judgments in the virtual plenary, ministers have the option of just accompanying the rapporteur or they can include a written vote in the system. This time, the majority followed Rosa Weber and only Carmen Lucia cast her vote.
The magistrate was emphatic in criticizing the rapporteur’s amendments. “The use of budget amendments as a form of co-opting political support by the Executive Branch, in addition to affronting the principle of equality, insofar as it privileges certain congressmen over others, puts the democratic system at risk.”
This behavior compromises legitimate, correct and dignified representation, distorts the processes and purposes of democratic choice of elected officials, removes the interest sought from the public and blinds the scrutinizing eyes of the people to the expenditure of resources that should be directed towards meeting the needs and aspirations
The minister continued to criticize and stated that institutional actions and the actions of state agents must always be guided by the public interest.
The control of the legality and purpose of behavior and expenditure of resources by the Public Administration cannot be hidden or emptied by the shadow, preventing the guarantee of transparency in public management
According to the magistrate, secrecy cannot be imposed on public spending in this case. “Secret is an exception in the Republic, only legitimated if it is duly and sufficiently justified. And the justification itself must be public in order to demonstrate the coherence between the deed and the objective sought”.
In the vote that was followed by most of her colleagues, Rosa Weber cited a report by the TCU (Court of Accounts of the Union) on the resources controlled by the rapporteur of the budget law and stated that the discovery that a significant portion of the Union’s budget is offered to group of parliamentarians, “through arbitrary distribution established among political coalitions”.
The opinion of the aforementioned court of auditors states that there was an increase compared to last year of 523% in relation to the amendments presented by the rapporteur and 379% in the consigned appropriations.
Gilmar Mendes, the only one to disagree so far, stated that the funds for the rapporteur’s amendments are already authorized and that the immediate suspension could generate problems in the management of public money.
The Public Administration has already started to adopt implementing measures, such as receiving proposals for the realization of agreements, transfer contracts or even starting or concluding bidding processes. If this remains so, a situation arises in which several budget schedules would suffer total stoppage, regardless of the stage of expenditure execution
Gilmar stated that the funds from the amendments are “for the construction of hospitals, the expansion of service stations or any other primary expenditure that can be allocated to all national federative units and that their execution will simply be halted”.
By way of note, the PSOL, author of the action, celebrated the majority formed so far. “The STF decision is important to shorten this tragedy that is the Bolsonaro government, as it proves the corrupt and undemocratic way in which it and its allies operate”, said the president of the acronym, Juliano Medeiros.
He says that it is now necessary to open a CPI to determine the expenses of the rapporteur’s amendments in order to “investigate the amounts that have already been diverted to buy congressmen while the people died without vaccine, food and oxygen”.
Understand what parliamentary amendments are and how they work
Each year, the government has to send a bill to Congress by the end of August with a proposal for the Federal Budget for the following year. Upon receiving the project, attendees have the right to direct part of the budget to works and investments of interest to them. This is done through parliamentary amendments.
The parliamentary amendments are divided into:
- Individual amendments: presented by each of the 594 delegates. Each of them can present up to 25 amendments in the amount of R$ 16.3 million per congressman (value referring to the 2021 Budget). At least half of that money has to go to Health
- Collective amendments: subdivided into amendments by state benches and amendments by permanent committees (of the Chamber, Senate and mixed, of Congress), without defined value ceiling
- Amendments by the General Rapporteur for the Budget: The amendments under his command, code RP9, are divided politically between parliamentarians aligned with the command of Congress and the government
CHRONOLOGY
Before 2015
The execution of the amendments was a political decision of the government, which could ignore the destination presented by the parliamentarians
2015
Through constitutional amendment 86, the mandatory execution of individual amendments was established, the so-called tax budget, with some rules:
a) mandatory execution up to the limit of 1.2% of the current net revenue realized in the previous year;
b) half of the value of the amendments mandatorily destined for Health
c) contingency of amendments in the same proportion as the general contingency of the Budget. The collective amendments continued with non-mandatory execution
2019
Congress expands the tax budget by approving constitutional amendment 100, which makes it mandatory, in addition to individual amendments, by state benches (one of the models of collective amendments)
Half of this amount has to be allocated to works
Congress still places an expressive amount for the amendments made by the General Rapporteur for the Budget: R$ 30 billion
Jair Bolsonaro vetoes the measure and Congress only does not overturn the veto through an agreement that kept R$ 20 billion in the hands of the general rapporteur
2021
Total amounts reserved for each type of parliamentary amendment:
Individual amendments (mandatory): R$9.7 billion
Bench amendments (mandatory): R$7.3 billion
Permanent commission amendments: BRL 0
​Amendments of the General Rapporteur for the Budget (code RP9): R$ 16.8 billion
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