STF decision to suspend strategic amendments to Bolsonaro ends 8-2

The STF (Supreme Federal Court) decided on Wednesday (10), by 8 votes to 2, to suspend payment of the rapporteur’s amendments to deputies and senators.

Ministers Luís Roberto Barroso, Edson Fachin, Carmen Lúcia, Ricardo Lewandowski, Alexandre de Moraes, Dias Toffoli and Luiz Fux voted to maintain the monocratic decision handed down by Rosa Weber last Friday (5) to prohibit the transfer of these funds.

Minister Gilmar Mendes voted to maintain the execution of the amendments, but stated that, for this, it would be necessary to adopt measures “so that the decisions of the ministerial portfolios regarding the acceptance or rejection of requests made by the members of the National Congress”.

Minister Kassio Nunes Marques, in turn, also defended the maintenance of payment of the rapporteur’s amendments for this year and voted to determine to Congress the creation of mechanisms to give more transparency to the allocation of these funds from 2022.

The outcome of the judgment has the potential to trigger a crisis between the Powers and oppose the Supreme to Congress and the government.

All ministers have already voted, but the analysis of the case takes place in the virtual plenary and will only be officially concluded at 23:59 on Wednesday. Until this deadline, magistrates can change their position, but this is uncommon.

According to the decision of the STF, 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.

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 dos Precatórios, also called the PEC do Calote, for example, R$ 1 billion was released in amendments of this nature.

This proposal, which was approved by the Chamber and will be discussed by the Senate, allows for the expansion of public spending and makes it possible to expand the Auxílio Brasil promised by Bolsonaro in an election year.

Planalto Palace was already facing 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, administrative reform, for example, needs the same amount of votes in Parliament to be approved.

At the trial, the vote of the rapporteur, Rosa Weber, prevailed. She harshly criticized the amendments in question and said they, as they are currently implemented, violate constitutional principles of “legality, impersonality, morality, publicity and efficiency”.

“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,” he said.

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 is approved, “no longer [é] It is more possible to distinguish whether the expenses foreseen therein resulted from the original bill or from the rapporteur’s amendment”.

Rosa Weber stated that “the discovery that a significant portion of the Federal Union Budget is being offered to a group of congressmen is perplexing, through arbitrary distribution established between political coalitions.”

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. Only Rosa, Carmen, Gilmar and Kassio included their votes in the system.

Carmen was also emphatic in criticizing the rapporteur’s amendments.

“The use of budget amendments as a way 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 scrutiny of the people to the expenditure of resources that should be directed to meeting the needs and aspirations.”

Gilmar, on the other hand, 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 minister considered that the resources of 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 will simply have their execution halted”.

The minister also said that “the regime for the allocation of budgetary resources should not be demonized a priori through parliamentary amendments by the rapporteur, which are defined based on political agreements in a context where it is necessary to reconcile a set of claims from different interest groups “.

Kassio, in turn, acknowledged that there is a lack of transparency in the execution of these amendments, but stated that the immediate suspension of the funds would be detrimental to public management.

“The lack of transparency inherent to the procedure involving these amendments, indicated even by the TCU, attracts the need to correct the course, with the exhortation for Congress to proceed with the improvement in the search for the realization of the principle of publicity”, he said.

By way of note, the PSOL, author of the action, celebrated the majority formed so far. “The STF decision is important to abbreviate 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 THE PARLIAMENTARY AMENDMENTS ARE AND HOW DO YOU 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 caucuses 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