THE DYNAMICS OF EROSION IN LATIN AMERICA

Laura Gamboa-Gutiérrez

PhD Candidate in Political Science

University of Notre Dame

lgamboa@nd.edu

Paper presented at the ECPR Joint Sessions of Workshops

Salamanca 2014

Please do not cite or circulate without permission

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1. INTRODUCTION

In the past decade democracy in several Latin American countries has eroded. Figures like

Hugo Chávez, Evo Morales and Rafael Correa have used their popularity to destroy the system of

checks and balances, hinder free and fair elections, political rights and civil liberties (Corrales and

Penfold-Becerra 2011; Hurtado 2012; Mayorga 2009). Yet, in other countries, equally popular

presidents have tried to do the same but failed. Despite Alvaro Uribe’s efforts to undermine the

independence of the legislature and the courts, and the fairness of elections (García and Revelo

2010), Colombia’s constitutional order remained fairly strong. Uribe was unable to reelect himself

for a third term and had to step down giving way to another popularly elected president (Botero,

Hoskin, and Pachón 2010). Why, despite similar circumstances, some popular presidents

successfully thwart checks and balances and stay in power and others do not?

Such a question is important for theoretical and policy debates. It inserts itself in the

increasingly popular debate about why hybrid regimes come about and survive (Brownlee 2007;

Bunce and Wolchik 2011; L. J. Diamond 2002; L. Diamond 2008; Fish 2001; Levitsky and Way 2010;

Ottaway 2003)and broadens the debate about democratic reversals that the international

community has found hard to fight.

This paper argues that although low economic development, weak institutions and weak

states increase the likelihood that presidents will try to dismantle the checks on the executive and

extend their stay in office, these conditions do not over-determine whether they succeed in these

attempts or not. Rather, because democratic erosion happens over time the opposition usually has

time to respond. Accordingly, presidents’ ability to successfully increase the powers of the

executive and extend their time in office depends not only on their military or organized civilian

support, but most importantly on the type of response orchestrated by the opposition to the

president’s first attempts to undermine checks and balances. If the opposition uses institutions to

fight the government (congress, courts or elections), and avoids violence, strikes or coups they will

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keep some presence in the legislature and will be better able to oppose the government in the short

and medium run. On the contrary, if the opposition retaliates outside institutions (violence,

boycotts, strikes or coups) the government has legitimate reasons to remove opposition leaders

from office, prosecute and jail them. Such a response allows the president to gather enough support

to push for more aggressive reforms down the road, and hinders the opposition’s ability to block

these in the future.

In order to support this argument, this project uses cross case and within-case analysis to

reconstruct the dynamics of erosion and the mechanisms that prevent, or fail to prevent it, in

Venezuela and Colombia. Giving the scope of the project, and the fact that I am still gathering

information on Venezuela, this paper will focus solely on the findings in Colombia. During 6 months

of field research I conducted interviews with congress and cabinet members, party leaders, court

staff, journalists, academics and members of the Armed Forces, and did archival research in

newspapers and Congress, in order to trace the dynamics of key constitutional reforms during

Uribe’s two administrations. The information gathered suggests that the opposition’s presence in

the legislative was key to thwart Uribe’s reforms. Albeit small in numbers, opposition congressmen

were able to filibuster important bills, mollify otherwise radical reforms, and introduce or

denounce vices that were later used by the courts to rule against the government. By the time

Uribe tried to further change the constitution to allow his second reelection the fact that the

opposition had kept some institutional resources (i.e. seats in congress), and slowed down

government’s cooptation of courts and oversight agencies, was essential to successfully thwart this

attempt and prevent Uribe’s third term1.

In so far as it focuses on the role of oppositions, my argument is compatible with Bunce and

Wolchik’s (2011) recent important contribution to the study of regime change. My approach,

however, departs from theirs in several important aspects. First, I am interested in democratic

1 I am still gathering evidence in Venezuela. The material I have so far supports this account.

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erosion, not in democratization. Second, my understanding of erosion suggests that regime change

or survival is a protracted and path dependent process. I argue that one needs to look at the chain

of decisions made by opposition actors in response to executives’ attempts to undermine the

system of checks and balances. Unlike Bunce and Wolchik I look beyond elections as sites of

opposition agency. My theory suggests that in the case of democratic erosion opposition agency

enters the picture way before electoral campaigns. Third, I focus on the behavior of oppositions in

other institutional arenas such as legislatures and courts, suggesting that presidents can be stopped

by gaming the system, as opposed to fighting them from the streets.

In what follows, I review alternative explanations and why they do not help us understand this

phenomenon entirely. I then lay out my argument and use evidence from Colombia to support it. In

the conclusion I explain how preliminary findings in Venezuela further complement this account.

1. WHAT OTHERS HAVE SAID ABOUT DEMOCRATIC EROSION

Five existing approaches have been used to explain regime change. Structural arguments

suggest that higher levels of economic development decrease the likelihood of democratic

breakdowns (Przeworski et al. 2000). Indeed, lower levels of per capita income affect the likelihood

that presidents will try to undermine democratic institutions (Mainwaring 2012; Svolik 2008;

Weyland, Madrid, and Hunter 2010; Weyland 2002). When we compare the mean GDP/capita of

Latin American countries in which democratically elected presidents have tried to thwart checks

and balances and stay in power (Argentina, Colombia, Honduras, Venezuela, Bolivia, Ecuador and

Nicaragua)2, it is systematically lower than that of other Latin American countries in which their

presidents haven’t tried to do the same (See Graph 1)3

2 Part of the ongoing research is a dataset that provides a more systematic account of presidents’ attempts to thwart checks and balances. The cases I identify here as constituting cases in which such attempts were made were selected on the basis of my own knowledge and the secondary literature. This set of countries might change once I gather experts’ assessments. 3 This is true for inflation adjusted dollars (GNI) as well.

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However, development alone cannot explain all variation. In Latin America where seven

presidents4 have tried to extend the powers of the presidency and stay in power5 lower levels of

development could explain Ortega (Nicaragua), Correa (Ecuador) or Morales’s (Bolivia) success in

dismantling checks and balances and extending their terms in office, but not Chávez’s (See Graph

2). Similarly, higher levels of development could explain Menem’s (Argentina) failure, but less so

Zelaya’s (Honduras) or Uribe’s (Colombia) (See Graph 2). In other words, while important, level of

development does not fully explain democratic erosion in Latin America. Moreover, this structural

perspective does not give us any clue as to what are the mechanisms whereby erosion is achieved

or prevented.

4 Hugo Chávez (Venezuela), Rafael Correa (Ecuador), Evo Morales (Bolivia), Daniel Ortega (Nicaragua), Manuel Zelaya (Honduras), Carlos Menem (Argentina) and Alvaro Uribe (Colombia) 5 These are the most important cases. Right now I have a survey underway that will try to figure out if there are presidents who have tried to do the same in other countries in the region.

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Alternative structural approaches suggest that mineral wealth hinders democracy. Oil

riches, for example, alleviate social pressures for accountability, strengthen the state repressive

apparatus, and depress democratizing social and cultural changes (Ross 2001). Recent analyses

posit that Chávez, Morales and Correa have used mineral resources to fuel their projects via

patronage (Hidalgo 2009; Weyland, Madrid, and Hunter 2010). While certainly oil and gas revenues

have allowed these presidents to buy support, mineral resources cannot completely explain

democratic erosion. Although it is not oil dependent, Colombia produces and exports as much oil as

Ecuador (Ross Oil and Gas Dataset). In fact Uribe had no problem buying civilian and military

support throughout his presidency. He used massive foreign aid to strengthen the army like no

other president and left office with 73% popularity (Caracol 2010). Moreover, Venezuela has been

oil dependent since the 1970s and yet democratic until the 2000s. Why didn’t it erode earlier? Like

other structural explanations the mineral wealth thesis cannot account for the mechanisms of

erosion nor its timing. We need to incorporate actors into the model to attain explanatory

sufficiency.

A similar argument can be made about state strength. Presidents will be more likely to

undermine democratic institutions in weak states with governance problems (Mainwaring 2012).

Indeed, Uribe, Menem, Morales, Chávez, Zelaya and Ortega came to power at times in which their

countries had low governance levels (International Country Risk Guide) 6. However, this cannot

explain all the variation in the dependent variable. Among the cases that experienced erosion, only

Chávez came to power when the levels of governance were lower than the Latin American average.

Among the cases that did not experience erosion, only Menem came to power at times in which

levels of governance were higher than the Latin American average.

6 The ICRG indicator for Quality of Government is built by the Political Risks Services group (http://www.prsgroup.com/Default.aspx) and found in the Quality of Government Data Set of the Quality of Government Institute (http://www.qog.pol.gu.se/).It includes measurements for corruption, law and order and the quality of bureaucracy but is unclear how is that it assigns values to each of these indicators.

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In other words structural factors account for some of the variation in democratic erosion, but not

all of it. They seem to affect the likelihood that presidents will try to thwart checks and balances,

much more than they affect the likelihood they will succeed in doing so.

Some scholars have also focused on the importance of the international context for

democratization (Brinks and Coppedge 2006; Bunce and Wolchik 2011; Levitsky and Way 2010).

Powerful countries and transnational organizations played a key role in the third wave by creating

a supportive atmosphere for democracy. It is plausible that such an atmosphere has changed. On

the one hand, promoters of democracy in the region like the United States seem to have turned

their attention away from Latin America. On the other hand, Venezuela has become a black knight,

who actively supports authoritarian regimes like Cuba across the continent.

The international context has certainly shaped the way in which regimes turn authoritarian

today. Autocrats have learned how to play the international community. They have found ways to

concentrate power without breaching basic international democratic standards. It seems plausible

that the absence of interest from the US or the support Venezuela provides to presidents who have

tried to increase their powers and stay in office, has helped some governments do so. However,

these two factors cannot fully determine presidents’ success in dismantling checks and balances

ARG

VEN

COL

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HND

BOL

0.2

.4.6

.81

ICR

G

1990 1995 2000 2005 2010years

ICRG at Election Year for Cases Latinamerica ICRG

using ICRG Indicator for Quality of Government in QoG Dataset

Governance (ICRG) at Time of Election for Cases of Possible Erosion

GRAPH 3

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and staying in power. Despite Venezuela’s support and the US blind eye, Zelaya was not able to

change the constitution to allow for immediate reelection, and it seems that Cristina Fernández de

Kirchner7 will not be able to do so either. In other words, while a permissive international

atmosphere aids these legitimate autocrats, it aids them all equally. Therefore, like the structural

theories discussed above, it cannot explain why some succeed and others fail.

Another argument commonly used to explain democratic breakdown suggests that mass

attitudes towards democracy have a big impact on regime and regime change (Inglehart and Welzel

2005). In a reformulation of modernization theory, Inglehart and Welzel suggest that the public’s

“post-materialist” values increase the level of democracy. While they do not explicitly mention it, it

is possible that the opposite might happen as well. Changes in people’s self-expression values might

decrease support for democracy and cause democratic erosion It is not farfetched to think that at

times of crisis people will turn to strong leaders putting regime preferences aside (Levitsky 2000).

They will prefer unknown politicians who promise they will solve the crisis, over known politicians

whose track record suggests they might not be able to do so (Weyland 1996). Such an argument

could explain why is it that presidents who try to increase their powers and extend their stay in

office are elected. Survey data, however, does not support that assertion. If we compare the mean

support for democracy in countries in which presidents introduced reforms to increase presidential

powers and the length of their term in office, against those countries in which that did not happen,

we do not find a large or consistent difference in the mean support for democracy. (See Graph 4)8

7 Although it is not formally a case –partly because its outcome is yet to be determined—Cristina Férnandez de Kirchner in Argentina is often seen as another example of presidents who try to increase their powers and extend their stay in office. Between her and her husband, her peronista faction has been in power for sixteen years. Now she has run out of reelections and, for a while, it seemed she would ask the Legislative to change the constitution in order to allow her to run for a third time. Given that she does not have a big enough coalition in Congress it seems like she will step down after all. 8 The p-value of the mean difference in support for democracy between cases of erosion and cases of non-erosion is: 0.5913. It does not reach statistical significance.

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Cases: Bolivia, Colombia, Ecuador, Honduras, Nicaragua, Venezuela. Not Cases: All other Latinamerican countries. Question: 1. For people like me it doesn’t matter whether the regime is democratic or

authoritarian. 2. Under certain circumstances an authoritarian government is preferable to a

democratic one. 3. Democracy is preferable to any other type of government.

Institutional approaches suggest that institutions shape elites’ behavior. They reduce

uncertainty and provide incentives to cooperate with democratic rules (Aldrich 1995; Helmke and

Levitsky 2006; Magaloni 2006; Mainwaring and Scully 1995; North 1990; Przeworski and Maravall

2003). More specifically, institutionalized parties and party systems structure political competition,

make electoral politics more predictable, and legitimate democracy (Mainwaring and Scully 1995).

On the contrary, inchoate party systems fail to structure political competition, make electoral

politics predictable or legitimate democracy, thus allowing populist leaders with personalistic

projects like Chávez and Fujimori to attain office (Coppedge 200 Hawkins 2010 Mainwaring,

e arano, and Pizarro eongo mez 200 Mainwaring and Scully 1 Morgan 2011 Seawright

2004; Tanaka 2006).

Without question, low levels of party system institutionalization increase the likelihood of

electing outsiders and mavericks (Dugas 2003; Mainwaring and Scully 1995; Tanaka 2006).

However party system institutionalization does not tell the entire story. Irrespective of failure or

success, almost all of the leaders mentioned above came to power in the midst of very weak party

2.2

2.3

2.4

2.5

2.6

Me

an

Su

pp

ort

(sca

le 1

-3)

1995 2000 2005 2010Years

Cases Not Cases

Latin America

Support For Democracy in LA

GRAPH 4

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systems. Even if we admit that low levels of party system institutionalization matter, these do not

explain why it is that some of these outsiders with populist projects successfully dismantled checks

and balances and others did not.

Other institutional arguments focus on the independence and strength of the high courts.

Colombianists have argued that a strong and independent Constitutional Court was essential for

Uribe’s failure to reelect himself for a third term (García and Revelo 2010; García 2009). Although

the high courts were a ma or obstacle to Uribe’s attempts to extend his powers and stay in office,

this is part of the outcome I am trying to explain. Other presidents faced somewhat strong

judiciaries at first, but successfully resorted to a mixture of formal and informal mechanisms to

decrease the courts’ ability to check them (Castagnola and Pérez-Liñán 2011; Sanchez Urribarri

2011). Uribe also tried to do the same, the question is: why wasn’t he able to succeed?

Scholars have also paid attention to the role of agency in regime change. They argue that, for the

most part, transitions from and to democracy are elite driven (Bunce and Wolchik 2011; O’Donnell

and Schmitter 1986). Short term explanations suggest that democratic breakdown is the outcome

of the strategic choices government and opposition make in response to crises (Capoccia 2001; Linz

1978; Valenzuela 1978). More long term explanations suggest that transitions from democracy are,

partly, the consequence of the ideas and attitudes elites have towards democracy (Berman 1998;

Mainwaring and Pérez-Liñán 2013). Like these approaches, I also emphasize the importance of

actors and their choices. More specifically, this paper argues that the choices the opposition makes

with regards to how it will oppose the president, matter for democratic erosion. Unlike Linz (1978)

or Capoccia (2001), however, I look at the long term consequences of these choices. I argue that the

mechanisms the opposition uses to fight the government’s first constitutional reforms, while

inefficient at first can prove extremely important down the road. The course of action the

opposition chooses builds (or fails to build) institutional strength that will help them fight more

aggressive reforms some years later.

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2. HOW TO PREVENT DEMOCRATIC EROSION: THE IMPORTANCE OF USING INSTITUTIONS.

I understand the erosion of democracy as a type of regime transition, in which, over time,

governments gravely weaken formal institutions that check the president’s power, promote

horizontal accountability, and guarantee free and fair elections9. These presidents introduce minor

changes that increase the president’s legislative and non-legislative powers, and transform

electoral rules to extend the president’s term or allow for immediate reelections. While individually

minor, put together, these alterations not only hinder horizontal accountability but they tilt the

electoral playing field thwarting vertical accountability as well. They allow the president to build

artificial majorities, pack the courts, and overturn judicial and congressional decisions. They

effectively uncheck the executive, which in turn gets to manipulate elections (i.e. electoral laws,

campaign finance and media access) to such an extent that it becomes extremely difficult for the

opposition to defeat them. Eroded democracies are no longer democracies; not even delegative

democracies (O’Donnell 1 4). They have lost their horizontal and vertical accountability, thus

becoming competitive authoritarianisms instead (Levitsky and Way 2010)

A key characteristic of erosion is, therefore, that it happens over time allowing the opposition to

respond. It is an incremental process, with a tipping point that moves the regime across the

authoritarian threshold. Accordingly, I argue that presidents’ ability to successfully introduce

constitutional reforms to dismantle checks and balances and stay in power depends not only on the

president’s civilian or military support, but also on the mechanisms used by the opposition to fight

the government early on in the process. While the larger project addresses both of these variables,

given the stage of the research and the weight that each of these has on the argument, this paper

will focus only on the second one.

9 Civil war, corruption and the like can certainly cause erosion if they are strong enough to push a regime outside the democratic camp into the authoritarian camp. However, they do not necessarily cause erosion. If they are not serious enough to push the regime outside the democratic camp (i.e. seriously hinder electoral accountability) then they might decrease the quality of democracy but not necessarily erode it.

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The Logic Behind Erosion

Political leaders are office seekers with policy interests (Aldrich 1995). The presidents under

study come to power in opposition to seated elites and contexts of crisis (i.e. low governance, low

economic development or violence). They face very weak governmental arrangements and thus,

have leverage for disruption (Skowronek 1993). In order to attain their policy goals, they try to

reform the constitution to increase the presidency’s powers and reelect themselves indefinitely.

The opposition, in itself an office seeker with policy interests, wants to stop the president’s

reforms. It can do so either within existing institutions (i.e. competing in elections, within congress,

or the courts), or outside of them (i.e. via violence, electoral or institutional boycotts, strikes and

even coups). If the opposition uses the congress, elections or the courts, and avoids violence,

strikes, boycotts and coups, the government, which wants to keep a democratic appearance, has no

legitimate reason to “crowd” them out. Even if diminished, the opposition will keep some presence

in the legislature that will allow it to protect the very institutional resources the government is

trying to creep out.

If the opposition opposes outside institutions via boycotts, strikes and coups, however, the

government will have legitimate reasons to remove opposition leaders from office, prosecute, and

even jail them. The opposition will lose its presence in the legislature and with it its ability to

protect the few institutional resources it has left. Non institutional responses, unless successful, will

therefore weaken the opposition to such an extent that they will hinder its ability to stop more

aggressive reforms.

Erosion is incremental. The first set of reforms might hinder horizontal accountability, but are

not enough to thwart electoral accountability as well (i.e. skew the electoral playing field). They

might increase some of the president’s legislative and non-legislative powers, and allow him to

reelect once, but will likely fail to politicize state institutions or provide budgetary powers large

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enough that would seriously uneven the playing field.10 The second set of reforms, on the other

hand, poses a more serious threat to democracy. They will enhance the president’s ability to

enlarge his majority in congress, fully undermine courts and congress, do extensive court-packing,

and further extend his tenure in office. They will allow the president to politicize and deploy state

institutions that deal with electoral rules and media access and enhance his budgetary powers. The

president will be able to run for a third term and in biased playing field, will be almost impossible

to defeat.

Opposition at the Margins

Unless completely controlled by the government, elections, courts and legislatures are

competitive arenas. Regardless of how little presence the opposition has in them, these bodies

provide spaces for the opposition to challenge, debilitate, and, in some cases, defeat incumbents

(Bunce and Wolchik 2011; Levitsky and Way 2010). As long as the opposition keeps some presence

in the legislature, it can delay, modify and, under very specific circumstances even stop government

projects (Levitsky and Way 2010). They can tame and slow down reforms that would allow the

government to leave the presidency completely unchecked, and extend its stay in office indefinitely.

It is often assumed that small oppositions cannot do much in Congress. Being a minority, they

seldom have the numbers they need to pass legislation (Morgenstern, Javier Negri, and Pérez-Liñán

2008). However, recent analyses have shown the importance of legislative procedure and the tools

it provides to obstruct the legislative process (Hiroi and Renno Forthcoming). Obstruction, scholars

argue, lengthens the deliberative process, which does not sit well with the government. Some

legislatives require certain bills to be fully debated by the end of one legislative term. In this case,

delays in a bill’s transit put such legislation at risk. Even if that is not the case, longer debates also

allow for better public scrutiny and increase the probability that the bill will be modified by friends

10 Levitsky and Way code a playing field as uneven if: 1) state institutions are widely politicized and deployed by the incumbent, 2) there is uneven media access or 3) there is uneven resource access. (Levitsky and Way 2010, 368)

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and foes, thus, reducing the benefits the government will accrue from it (Döring 1995; Hiroi and

Renno Forthcoming).

Accordingly, even if too small to sink the president’s reforms, oppositions facing popular

presidents attempting to increase the powers of the executive and extend their time in office, while

in Congress, have some game. As long as they keep their seats they can use rules of procedure to

lengthen the deliberative process and with it, increase public scrutiny and open up spaces to

modify, and even stop some bills. Although individually harmless, this type of obstruction will delay

the president’s agenda enough to protect institutional resources –such as courts and oversight

agencies—which will prove useful when more aggressive reforms come along.

Accordingly the opposition can use rules of procedure to purposely delay the president’s

agenda, try to mollify some of the bills and generate procedural mistakes. These strategies will, in

turn, a) tone down the president’s agenda, b) increase public scrutiny and with it the pressure to

strike down the project, or c) will provide elements that the courts, during judicial review, can

latter use to rule against these laws. In the following section I will use the case of Colombia to show

how some of these strategies work.

3. TO LOSE IS TO WIN A LITTLE: HOW THE OPPOSITION PREVENTED DEMOCRATIC EROSION IN COLOMBIA

Alvaro Uribe Vélez attained power in the midst of a serious security and institutional crisis. At

the time he was elected, the FARC (Revolutionary Armed Forces of Colombia) controlled a

substantial portion of the country. The failure of president Andrés Pastrana’s (1998-2002) peace

process, not only discredited the guerrilla, but more importantly all those who had ever supported

a negotiated alternative to end the armed conflict (Gutiérrez Sanín 2007) (i.e. any politician

affiliated to the traditional parties). In that scenario Uribe’s vote intention which was only 18% in

August 2001 rose to 39% by January 2002 (Semana 2002a) and 49% a little before the presidential

elections (Semana 2002c). With a personalistic “iron fist” and “anti-politics” (anti-politiquería)

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platform he won the presidential elections in a spectacular first round (53% of the votes casted)

against the traditional parties that had controlled the political arena since the early 1900s.

Glued by the president’s popularity, Uribe’s coalition in Congress included the Conservative

Party, several smaller parties and members of the Liberal Party that broke with their leaders. Uribe

had the support of approximately two thirds of the Senate and three fourths of the Lower House

(My own calculations based on data from the National Registrar). The opposition did not have

enough seats to reach one third of the seats in the plenary of either chamber11.

During his first term Uribe introduced a series of constitutional reforms that sought to increase

the power of the executive vis-à-vis the legislature and the courts, as well as to extend his time in

office. The same day he was sworn president he proposed a referendum that to reduce the size of

congress, make it unicameral, impeach the recently elected congressmen and call for new legislative

elections (Gaceta del Congreso 323 de 2002). Several months later he introduced a bill, with the

goal of curtailing the Constitutional Court’s judicial review powers (Gaceta del Congreso 458 de

2002) as well as a reform that made permanent some powers of decree that would normally have

time limits (Gaceta del Congreso 174 de 2003). Uribe ended his first set of reforms with another

change to the constitution that allowed him to run for a second term (Gaceta del Congreso 102 de

2004).

Once reelected, Uribe had a better hold of Congress. His supporters had introduced a reform

that forced party members to vote with their party (Law 974 of 2005) Given that the president

controlled the largest coalition in the legislature, and had distributed government positions among

the leaders of most of the parties that composed it (Ungar et al. 2010), this law gave him enormous

power over legislation. During his second term, the president introduced two reforms that sought

11 In the committees the numbers were slightly better, although the opposition never had a simple majority. In the Senate Committee for Constitutional affairs, the opposition had 4 seats out of 19; in the House Committee for Constitutional affairs it had 10 out of 35 seats.

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to limit judicial review as well as the ability of the Supreme Court to investigate congressmen. 12

(Gaceta del Congreso 92 de 2008, Gaceta del Congreso 654 de 2008). He also used his majorities in

congress to coopt courts and oversight agencies. He intervened –directly or indirectly—13 in the

election of Attorney General, the Ombusdsman and most members of the Constitutional Court

(García 2009)..

Towards the end of his second term, Uribe called for a referendum to change the constitution in

order to be able to run for a third term14 (Gaceta del Congreso 623 de 2008). Although the Uribista’s

majorities pushed the project through congress, it was ruled unconstitutional by the Constitutional

Court one month before the presidential campaign was set to begin. Without time to introduce any

other reforms to change this outcome, Uribe accepted the ruling, stepped down and gave way to a

newly elected president15. Had it been accepted, Uribe would have been able to rule for another four

years. With 8 years in office and four to go he would have increased his hold over congress, fully

coopted courts and oversight agencies, and skew the electoral playfield (García and Revelo

Rebolledo 2009).16

12 This was especially important during the “parapolítica” scandal in which 0% of the president’s supporters in Congress had open investigations in the Supreme Court because they had received support from paramilitary groups to aid with their campaign. 13 For those offices for which the government was able to present lists, the president would present lists that made it impossible for congress to choose any candidate but the one closest to the government. For those offices for which the president could not present lists, the government still used its influence over congress to push either for the candidate deemed closest to the government, or new more amenable lists (Rubiano 2009). 14 The referendum was proposed by Uribe’s closest advisors and coalition members. Uribe never publicly accepted he was behind this reform. However, the fact that he never talked against and called for emergency sessions when it seemed that Congress wasn’t going to have enough time to discuss it, suggests that he was behind it. 15 Since he stepped down, Uribe has kept his public appearances. He has repeatedly asked for a Constitutional Assembly, and now that he and his movement won 19 seats in the Senate, he will ask for a constitutional reform that will dismantle the Constitutional Court. 16 esides the constitutional reforms Uribe’s government used informal means to harass his opponents. In more than one occasion the president publicly defamed members of the courts, opposition parties and NGOs as “guerrilla members” or terrorists. His team also used the State Police (Departamento Administrativo de Seguridad –DAS) to illegally intervene the phones, emails and mail of opposition members, court magistrates and journalists. This information was intended to file false charges against these people. Although the investigation has not been able to tie Uribe himself to these irregularities the DA has pressed charges against important members of his administration including his chief of staff (Bejarano 2010; Morris 2010).

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In sum, throughout his presidency Uribe repeatedly threatened checks and balances. In the

eight years he was president he introduced several reforms that sought to increase the executive’s

control over congress, courts and oversight agencies, and weaken anybody who opposed him.

Despite these attempts, and contrary to what was happening in other countries in Latin America,

Uribe was not able to fully undermine democracy. The work of opposition members, who

repeatedly opted for institutional responses to the government’s attempts to thwart checks and

balances, eventually paid off. The opposition kept its seats in congress throughout both terms and

used rules of procedure to obstruct the legislative debate. More specifically they strategically

extended a bill’s transit through congress, and denounced and created vices of procedure. As shown

below, the delays opened up windows to a) mollify otherwise radical reforms and b) increase public

scrutiny. The procedural vices, in turn, facilitated judicial review by providing arguments to rule

against some of these reforms. Together these strategies slowed down the process by which the

government meant to weaken other branches of government and stopped Uribe from extending his

time in office beyond a second term.

Given the stage of this early stage in my research I will focus on three examples to illustrate the

main causal mechanism suggested by the theory: the Referendum against Bad Politics and

Corruption (2002), the Antiterrorist Statue (2003) and the Reelection Referendum (2009). The

three bills are examples of Uribe’s attempts to increase his powers and extend his time in office.

Had any of these passed as proposed by the president they would have weakened the legislature,

increased the presidents’ powers of decree and allowed him to govern for 12 years.

Small Changes, Big Outcomes

The first bill Uribe Vélez sent to congress was a “Referendum against ad Politics and

Corruption” (Referendo contra la Corrupción y la Politiquería). The original version called for a

smaller unicameral legislature and mandated new legislative elections. It also sought to make roll

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call voting compulsory for everything but procedural matters and increased the causes that would

remove congressmen from office or disqualify them from participating in politics. It also proposed a

severe abolish regional oversight agencies as well as other random policies that went from freezing

public servant’s salaries to banning mandatory military service in Colombia (Gaceta del Congreso

323 de 2002). The referendum also included very suggestive introductory paragraphs to each of the

question, as well as a final question that asked voters if they wanted to vote “yes” or “no” for the

entire set of questions, instead of voting each one individually. The idea was to use Uribe’s

popularity and momentum to push the referendum through Congress and get people to the polls

(Bermúdez 2010).

Before it became law the referendum had to go through three separate debates in Congress.

One with a joint session of the House and Senate Committees for Constitutional Affairs (from

September 25, 2002 to October 15, 2002), a second one in the Plenary of the House of

Representatives (from October 28 through November 19) and a third one in the Plenary of the

Senate (from November 25, 2003 to December 5, 2002). Once the law had successfully passed these

debates, it had to be reviewed by the Constitutional Court which approved it on July 2003 and

moved into the National Registrar who scheduled the vote for October 2003.

Uribe wanted a speedy process (Bermúdez 2010). Besides improving security, this was one

of his most important campaign promises. Having sold himself as a “do it” kind of president, aware

of the electoral advantage that his victory provided and the fact that such momentum would run

out fast, government and opposition were aware that, in order to work, this referendum needed to

happen fast17. For referendums to become law, more than half of the registered voters must vote.

Uribe wasn’t sure his popularity would be enough to meet the turnout requirements. This is why he

17 In July an internal poll revealed that 76% people had a favorable image of the president and 81% where willing to support it (Bermúdez 2010). Throughout the first year of the Uribe administration those numbers dropped. On January 2003 a survey conducted by important news outlets in the country revealed that the president had a job approval of 68%, and only 46% of the respondents were willing to support the referendum. On July those numbers got even worse. President’s ob approval had drop to 4% and only 43% of people said that they would vote for the referendum.

19

was determined to take advantage of his post-election momentum to see the referendum enacted

into law (Bermúdez 2010).

From the beginning, the Referendum had all the support the government could provide.

Cabinet members attended most of the congressional meetings and were willing to answer most of

the questions asked. They went back and forth with the government’s parliamentary coalition at

the presidential palace and made it evident all throughout the process that the president was

personally invested in having this bill passed. In Colombia the president’s support for a bill is a

significant predictor of its success in Congress (Cárdenas, Junguito, and Pachón 2006; Milanese

2011). Against the majorities, the resources and the popularity of the president there was little the

opposition could do to fight the bill. Still on each one of the debates they demanded that the project

had to be debated and voted question by question using roll call voting each of the times (Gaceta del

Congreso 01 de 2003, Gaceta del Congreso 36 de 2003).

Roll call voting is often used to stall18. In this case, the request required roll call voting for

each of the sixteen questions of the referendum, and the amendments to each one of them. As a

result getting the referendum through Congress took almost twice as much time as it would have

taken otherwise. Whereas committee or plenary meetings usually take one to four sessions to

approve or reject a bill, it took the referendum nine sessions to pass in the House and Senate joint

committee, 8 sessions to pass in the plenary of the House and 6 sessions to move through the

Senate.19

Both friends and foes of the project used this time to change the bill from how it was

originally proposed. This was so evident that halfway through the process, the president threatened

to circumvent Congress and collect signatures to present the referendum directly to the people

18 According to Congress’s rules any congress man can ask to vote a project’s articles separately using roll call voting. Although the president could disagree, the request has to be put up for a vote allowing time to speak against or in favor, which would delay the meeting anyway (Law 5 of 1992, articles 130 and 134)

19 There is no official measure of how much time does it take to push bills through Congress. This estimate is based on my observation of other projects, as well as the steps to be fulfilled in each debate: presentation of the bill, debate of the presentation, debate and vote of the articles in the bill as well as any amendments there might be for them.

20

(Semana 2002b). Although congress did move faster from that point onwards, opposition

congressmen managed to get what they wanted. The referendum as it left the legislature no longer

proposed to call for immediate congressional elections, it did not call for a unicameral the

legislative and proposed to reduce congress only by 20% (30% less than the original proposal had

envisioned). Not only did it lost one of the bills that promised to increase turnout (Bermúdez 2010),

but most importantly it no longer curtailed congress’ power as much as it did before.

Although the Constitutional Court further modified the referendum –it did not allow the

“inductive” introductory paragraphs and prohibited the question that would have permitted voting

all the questions at once—hadn’t the referendum changed in Congress, udicial review wouldn’t

have been enough to reduce the scope of the bill. For referendums, the Constitutional Court can

only rule on matters of procedure. Had it been approved in congress as it was proposed by the

President the Court wouldn’t have been able to rule against some of its most radical proposals20.

Procedural Vices

In Colombia the Constitutional Court’s udicial review is limited. In the case of constitutional

reforms, it cannot judge the bill based on its content, but only on the appropriateness of its design

and congressional debate (Article 241, Constitution 1991). Opposition congressmen are well aware

of that and use it to their advantage. As the Congress Gazettes suggest it is often the case opposition

members will denounce some vice of procedure and ask the chair of the House or Senate to include

such complaint in the official records. Court staffers believe some times these complaints are

meant only to alert them about the vice so that justices can use those arguments to rule against the

20 The referendum was latter put up for a vote. The opposition called and campaigned for abstention. The idea was to thwart the president’s ability to get the turnout he needed for the referendum to be valid and they were successful at it. Some analysts suggest that, had the question of impeaching congress and reelecting a new one been there, Uribe might have gotten the votes he needed pass the referendum.

21

bill when they review it21 (Author’s interview January 17, 2014). Other congressmen go even

further. As suggested by experts in Congress, in Colombia, creating vices of procedure is not hard.

Congress’ rules of procedure (Law 5 of 1992) are complicated and Committee and Plenary sessions

are often chaotic; it is not difficult to make “mistakes” (Author’s interview November 20, 2013). In

this sense, vices are easy targets for weak oppositions.

The Antiterrorist Statue (Estatuto Antiterrorista) was a bill introduced by the government in

2003. Overall it sought to make permanent some powers of decree which, under extraordinary

circumstances and mandatory judicial review, allowed the president to suspend certain civil

liberties for a limited amount of time. Specifically the president was asking Congress to a) allow

members of the Armed Forces to work as judicial authorities aiding in the recollection and analysis

of evidence related to “terrorism” in certain areas of the country, b) allow raids and detentions

without court orders in cases of suspected “terrorism” and c) institute mandatory censuses in

regions with frequent “terrorist”22 activity (Gaceta del Congreso 174 de 2003). Had it been

approved this bill would have effectively unchecked the president; it would have removed the time

limit and the judicial review mandatory for decrees the president signs using emergency powers.

Before it became law, the Antiterrorist Statute had to go through eight debates (two in the

Senate and House Committees for Constitutional Affairs, and two in the House and Senate

plenaries) which was no problem since the government had comfortable majorities to see this law

through. Security is a salient issue in Colombia and Uribe’s “iron fist” policy was at this time popular

one. Coalition congressmen had no reason to split over this statue and the opposition was no

serious adversary.

21 Colombia’s Constitutional Court is known as an “activist court”: usually inclined to protect human and socio-economic rights and civil liberties (Uprimy Yepes 2003). As most high courts, however, without the power of the purse or the sword the Constitutional Court is relatively vulnerable to powerful executives and less inclined to rule against them. As will be shown in the next two sections, having procedural vices to pin the decision on made it easier strike down the president’s bills.

22 As was noted throughout the debates one of the largest problems of this bill was the lack of definition of the term “terrorism”. Implicitly, though, it was clear that Uribe meant to use these tools in the fight against the FARC.

22

As expected, the bill went through five debates without a problem. It was introduced in

April 2003 and by late October it had reached its sixth debate. On November 5, in the second

session of the sixth debate, in the middle of a chaotic roll call voting for which there was no quorum

(since several congressmen had left the room) the President of the House closed the session for that

day. María Isabel Urrutia, an opposition congresswoman, appealed the decision based on the fact

that the speaker hadn’t formally brought the roll call voting to a close. The president put the appeal

up for a vote and the chamber voted to keep the session open. Immediately afterwards Joaquín José

Vives (opposition) claimed that the results were in, the bill had not pass and the session was closed,

therefore any other vote or debate from that point onwards violated procedure. The president,

however, did not buy into this. He reminded everybody that the session was open and called for a

vote again. This time congressmen had come back into the room and the bill was passed (Gaceta del

Congreso 617 de 2003, pg 16). Congressmen from the opposition claimed that there had been a vice

of procedure, left a formal note of it on the record and left the chamber (Gaceta del Congreso 663 de

2003, pg 11).

Although the bill followed its regular path and was finally approved, the procedural vice

was restated during the seventh and eight debate in the Senate (Gaceta del Congreso 707 de 2003,

Gaceta del Congreso 03 de 2004, Gaceta del Congreso 04 de 2004), where opposition members

repeatedly accused the president of the House of closing the debate in the middle of the roll call

voting just to avoid sinking the project. These arguments were borrowed by different

unconstitutionality lawsuits against the bill (Constitutional Court: C-816-2004). At the end the

Constitutional Court finally ruled that, in fact there had been a vice of procedure and that it was no

way to repair it. As a result it declared the bill unconstitutional in its entirety.

It is worthwhile mentioning that the work of opposition members was twofold. On the one

hand they used a chaotic situation in order to create a vice of procedure. On the other hand they did

the due diligence of noting it in the record as such. In this sense, congressmen provided key legal

23

resources for civil society organizations whose job is to supervise the legislation that goes through

Congress and present lawsuits whenever they deem it inadequate. As a member of one of these

organizations noted without these congressmen it would have been hard for them to realize there

had been a vice of procedure. Unless you are present in the congressional session it is hard to see

what was going on. Gazettes or videos only show bits and pieces of what happens inside these

debates and regular citizens and NGOs do not have the resources to attend every single debate.

“Members of the opposition in Congress are important…Judicial NGOs do not

have the resources to follow the debates so, most of the times, is the opposition

congressmen the ones that help…” (Member of Judicial NGO, Author’s interview

December 19, 2013)

Unless it is duly documented and/or the relevant parties are tipped off, it is hard for those

presenting the lawsuit and those judging it to notice the vice of procedure. In this case, the various

formal notes in the record were essential for the NGOs and interested individuals to build lawsuits

against the Statute, as well as for the justices to rule against it.

All forms of struggle: delay, denounce, document

The bill of referendum that would have allowed Uribe to run for a third term was dubious at

best. During its transit through congress the opposition used rules of procedures to delay the bill,

identify and prove legal issues with it. Whereas the complaints of the opposition did not have a

strong impact inside congress and the bill was approved, they did have an impact outside of it. Not

only did they raise awareness and help gather support against the initiative, but they also provided

important information that the Constitutional Court latter used to rule against it.

It took the referendum a year to go through the four congressional debates required. The

opposition was partly responsible for some of the delay (Author’s Interview Nov 2 , 2013). During

the first debate, in the House Committee for Constitutional Affairs, they were able to postpone the

session a couple of weeks while they presented evidence that there had been problems with the

24

money and required that Luis Guillermo Giraldo (head of the Reelection Committee), the National

Registrar and the president of the National Electoral Council (NEC) appeared in front of the

Committee for the debate to move on (Gaceta del Congreso 55 de 2009, pg 3). In the second debate,

in the Plenary of the House, they almost sink the project. The debate was scheduled for the last day

of the legislative term and they asked to do roll call voting even for the most simple procedural

matters, voted ten impediments23 independently, and even asked for a minute of silence on behalf

recently deceased fellow congressman (which was duly voted of course) (Gaceta del Congreso 77

de 2009).

Hadn’t Uribe extended the legislative term by decree until the next day, the government

coalition wouldn’t have been able to approve the pro ect in this term, and would have had to wait

until the next one on February of 2009 which would have put the entire project at risk. The

referendum had serious time constraints. If Uribe was going to run for a third term he had to

announce his candidacy six months before the elections (May 2010). This meant that the bill had to

make full transit through congress, be reviewed by the Constitutional Court and the referendum

had to be scheduled before December 2009. Postponing the vote at the Plenary of the House until

February would have made it impossible to reach this deadline..

The opposition was able to further delay the project when it got to the Reconciliation

Committee. Because House and Senate had approved different versions of the referendum, they had

to create a committee to reconcile the projects. Who sat in this committee was essential both for

government and opposition. They both launched a strong political and judicial battle around the

topic that pushed it into the next legislative term (July 2009) (Paredes 2010). It took almost a

month to get the committee to agree on a version. On top of that, in the plenaries of House and

23 When there is a conflict of interest, to avoid penalties, Congressmen can ask the floor to declare them unfit to participate in the debate. If the request is denied, the Congressman can participate in the debate and cannot be penalized for it.

25

Senate, the opposition once again used roll call voting for every matter, including 50 impediments

to delay the last debate a couple of days. The Referendum was finally approved in September 2009.

The delays had important medium term consequences. The opposition had skillfully find

irregularities with the funds used to finance the gathering of the signatures required to present the

bill of referendum.

“I started with the pictures where you could see DMG24 trucks taking the

papers and stuff [of the referendum material]…I managed to divide the evidence [of

irregularities] into doses to keep the debate alive…During that time we started to find

the book keeper and the money they have used, and the money they were declaring

and how they were playing with the rules…” (PDA Senator, Germán Navas Talero,

Author’s interview November 19, 2013).

By law any popular initiative such as a referendum can only receive three million

Colombian pesos from each donor. According to the books only half of the money used to fund the

gathering of signatures for the referendum fulfilled that requirement, and because of that the

National Registrar had certified the validity of the signatures but not the legality of the money used

to pay for the campaign. Since the beginning opposition congressmen argued that without that

certification, the debating the project generated a vice of procedure and put congressmen at risk of

committing perjury. The fact that the bill took so much time allowed them to collect enough

evidence to support that claim and introduce lawsuits against the organizers of the referendum and

the congressmen who had supported it. The requests for information and lawsuits forced both the

National Registrar and the National Electoral Committee to produce documents publicly stating

that there was money used to fund the referendum that hadn’t been accounted for and therefore

the bill did not fullfill all the requirements to go to congress. They also created a public scandal that

eventually forced the head of the Committee –president of the U. Party as well—to resign to the

24 DMG was a company based in the south of the country, at the time the referendum was debated the company faced charges for money laundering and illicit money catching.

26

party, and disqualified some of the government congressmen from participating in the ratification

process in the reconciliation committee (Paredes 2010).

The delays proved useful to change minds and hearts as well. Not only did the complaints

received some eco in the press and to some extent backed up the claims of those who saw the

referendum as an attempt on the part of the government to concentrate power and maintain Uribe

in office, but they also gave time for serious scandals to surface.

“…despite being a minority we managed to push forward the decision by eight

months, circumstance that I think at the end helped because these eight months

allowed several corruption scandals to surface and changed peoples’ perception…that

at least showed that not everything had been that good from the point of view of

Uribe’s government” (Cambio Radical House Representative, Germán Varón, Author’s

Interview November 26, 2013).

Two scandals were particularly important at this stage. A little after the debate of the

referendum started, DMG a Colombian company based in the south of the country was accused of

illegal money catching and money laundering. Although the government intervened and disbanded

it, it was later found that this company had aided the recollection of signatures for the referendum.

Not only did opposition congressmen found pictures of DMG trucks helping transport signature

forms, but David Murcia Guzman in an interview confessed he had given five million pesos to the

Reelection Committee (Paredes 2010). The second scandal that hindered the president’s public

image was one related to state subsidies to Colombian farmers. Even though the subsidy was aimed

to poor farmers, it was revealed in October 2009 that there were several irregularities, not the least

of which was the fact that the Agriculture Ministry had given several millions of these subsidies to

large landowners who weren’t supposed to receive them.

.Both the scandals and the congressmen complaints strengthened the opposition and

attracted those who, despite being Uribistas, were hesitant about the project. In fact, a after the

referendum finished its transit through congress, partly supported by the fact that there was

27

something “fishy” about it, a group of uribistas and non-uribistas, united against the bill. Together

with some media outlets (Semana.com, La Silla Vacía), they used creative campaigns to ask the

Court to rule against the project (Author’s Interview December 5, 2013). Although this show of

support didn’t influence the ustices’ choice it did make them feel more comfortable when they

ruled against the bill (Author’s Interview January 20, 2014).

Finally the opposition’s parliamentary tactics were instrumental in warning those in charge

of judicial review about possible vices in the law. Not only the gazettes, but every lawsuit against

the project talked about the irregularities and specified how is that these constituted a vice of

procedure. This last part is extremely important. The Constitutional Court can only review

referendums regarding vices of procedure. Even though some magistrates claim that there are

limits to what constitutional reforms can change (and in some cases they have ruled against reform

initiatives for this reason) this is a controversial theory25 which often divides the Court (Author’s

interview December 10, 2013). It is way easier and safer to rule on vices of procedure. Not only is

the court more likely to agree on these vices, but they are more straight forward and hard to argue

against, which is especially important when the bill, as was the case with the referendum, is backed

up by a popular president with considerable popular support (Gibson 2007). It is hard to say

whether the Court would have rule against the referendum if there hadn’t been any vices, but

probably the decision would have been a lot harder to make than it was with the vices (Author’s

interviews December 10, 2012 and January 17, 2014).. In that scenario a ruling against the

referendum would have weakened the Court’s prestige and made it more vulnerable vis-à-vis a

powerful president with the resources to ignore its decision, retaliate and punish the justices.

25 The “substitution theory” suggests that the Constitutional Court can rule on the content of constitutional reforms whenever this content threatens the pillars of the 1991 Constitution. The idea is that only a Constitutional Assembly is empowered to replace the Constitution. Whenever a constitutional reform threatens the main pillars of the Constitution, Congress and the people are overstepping their boundaries and therefore there is a vice of procedure (of competence). Although it is broadly accepted among certain academics, lawyers and justices, this theory is still controversial and important magistrates, lawyers and academics still disagree with it.

28

By the time the Constitutional Court reviewed the referendum it was clear that there was

something wrong with campaign to collect signatures. The fact that these problems had been duly

noted in the Gazettes, gave the Court reasons to go beyond the normal review process and ask for

documentation about the bill before it reached Congress (Author’s interviews December 10, 2012

and January 17, 2014). This review suggested that the referendum had been illegally funded. More

specifically, the Court found out that the Referendum Committee had received loans from a non-

profit Uribista foundation, which was getting its money from large companies. The donations they

gave matched the “credits” this foundation made in favor of the Referendum Committee. In other

words, the Committee was using the non-profit to receive larger amounts of money than it was

allowed to (Constitutional Court C-141-10).

The Court ruled against the referendum on February 26, 2010 (only one month before the

parliamentary elections, and three before the presidential elections). Although the opposition in

Congress had not been able to stop the project in the legislature, delaying and denouncing had

proved fruitful. Not only had the Court used their arguments to rule against the initiative, but the

delays had left Uribe no choice but to accept the ruling and move on. There was no time to

introduce any other reform and the Court’s decision was endowed with an aura of irrefutable legal

legitimacy.

4. CONCLUSION: EARLY INSIGHTS FROM VENEZUELA

As shown above, even if they are facing a charismatic president with popular support,

oppositions are not powerless to stop democratic erosion. As long as they keep their presence in

congress they will be able to protect the very institutions the president is trying to creep out. In

Colombia the opposition repeatedly used rules of procedure in order to delay, transform and stop

bills aimed to undermine checks and balances and extend Uribe’s time in office. Even though the

government was able to push most of these bills through Congress, the opposition’s strategies

helped mollify and stop some of them. Institutional alternatives not only allowed the opposition to

29

keep their legitimacy, but they also helped tame the President’s pro ect and eventually stop more

aggressive reforms.

Preliminary findings in Venezuela suggest the same. Most academics and politicians agree that

even though the opposition was weak at the beginning of Hugo Chávez’s presidency, it wasn’t until

2005 (seven years after Hugo Chávez attained power) that they lost all control over congress and

oversight agencies. Before then the opposition successfully managed to obstruct and delay the

president’s projects using rules of procedure that slowed down what would have been a very rapid

overhaul otherwise (Author’s interview March 3, 2014).

Indeed, the evidence gathered so far suggests that despite Chávez’s attempts to control courts

and oversight agencies the opposition managed to keep some pockets of support inside the Courts

(Tribunal Supremo de Justicia) and the National Electoral Council (Consejo Nacional Electoral).

Hadn’t it been for the coup in 2002, which reduced their legitimacy, the strike in 2003 which cost

them their influence over the petroleum company and the election boycott in 2005, which led to a

Congress a hundred percent chavista, they would have had leverage to protect and increase these

pockets of support. Had the opposition hanged long enough, an interviewee claims, they would

have even won the presidential elections of 200 (Author’s interview March 20, 2014).

30

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