INDEPENDENT REGULATORY AGENCIES AND

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1 INDEPENDENT REGULATORY AGENCIES AND THE ELECTORAL ACCOUNTABILITY OF THE PRESIDENT Mariana Mota Prado ** SELA s organizers have invited us to examine the implications for democracy of recent economic reforms in Latin America. In response to this invitation, this paper will analyze the relationship between a core feature of the economic reforms the implementation of independent regulatory agencies and one of the bases of the democratic regime electoral accountability. 1 The paper will argue that independent regulatory agencies may affect the electoral accountability of the President. It will focus on the case of Brazil, where these economic reforms namely privatization and regulation were accompanied by the implementation of independent regulatory agencies, which are not subordinated to the President or any body of the executive branch. There is an academic debate about how a political system might or should affect the operation of independent regulatory agencies, which are deemed to be an important feature for the stability and the success of economic reforms. 2 Instead of contributing to this debate, this paper discusses the problem from the inverse perspective. The question it addresses is whether agencies, once they are implemented, might affect the functioning of a democratic system. In response to this question, this paper will argue that independent regulatory agencies may affect the electoral accountability of the President due to the possibility of the President being held responsible by the electorate for the policies implemented by these regulatory agencies. Within this context, there are two possibilities of particular interest: (i) the President being held responsible through the electoral process for policies over which he has little or no control at all; and (ii) the President not being held responsible for policies over which he has actually had a 1

2 strong influence. My point here is that the independence, or the existence of Presidential influence on regulatory agencies, may be perceived in many different ways by the electorate. The electorate s perception, however, is not necessarily accurate and may not reflect the reality of those influences. In this sense, the accountability of the Presidential regime and the nature of the electoral process may be distorted by the creation of these independent regulatory agencies. Both the particular examples drawn from the Brazilian experience and the model of incentives presented here suggest a risk that could be investigated by empirical research in the future. The risk is that the electorate s perception of the relationship between the President and regulatory agencies may be inaccurate, and this creates what I have called an accountability mismatch. Electoral accountability mismatch happens when the President is deemed accountable for something that is not under his control or vice-versa. My arguments open room for a further discussion of the incentives for the President to manipulate these mismatches and point to the risks of creating independent bodies in certain political scenarios, particularly Presidential regimes. If, by empirical research, these risks prove to be real, the Brazilian system seems to have significant problems with which to deal. 1. ACCOUNTABILITY MISMATCHES AS A SYSTEM OF INCENTIVES This first section will discuss how the electoral accountability of the President might be, in theory, affected by his relationship with regulatory agencies. The President is held electorally accountable for all acts of the executive branch. If executive officers are implementing policies that displease the citizenry, the acts of these executive officers will be viewed as acts of the President and may affect the outcome of future elections. Independent agencies, however, do not follow Presidential commands. Their 2

3 independence is guaranteed by a series of different institutional features that aim at undermining Presidential influence over these agencies. 3 From a purely theoretical perspective, they take their decisions and implement their policy choices independently of the President. Thus, from the perspective of electoral accountability, the President would not be responsible for the acts of independent regulatory agencies. This outcome, however, depends on how the electorate perceives the relationship between the President and the independent regulatory agencies. How will citizens evaluate the acts of independent regulatory agencies? Will they consider these acts to be an aspect of Presidential responsibility and, therefore, make the President electorally accountable for them? Will they consider regulatory agencies independent of executive control and, therefore, not hold the President accountable? This section will discuss the possibility of the electorate mis-evaluating the President s responsibility for the activities of regulatory agencies, either by holding him responsible for acts of truly independent regulatory agencies or by failing to hold him accountable for acts over which he has, in fact, had influence. I will consider how this possibility may affect presidential behavior towards regulatory agencies. Whether the President should be held accountable for the acts of the agencies is a distinct, and normative, question. 4 Therefore, it will be left to a future paper. 1.1 The types of accountability mismatch Electoral accountability is the system through which elected policymakers are sanctioned by citizens through the electoral process. Citizens can manifest their dissatisfaction or disagreement with certain policies or acts at the ballot box. 3

4 In Brazil, the President is deemed to be electorally accountable for all acts of the executive branch. The traditional public administration, 5 which is under his supervision, consists of all bodies in charge of implementing Presidential policies. The President is accountable for the acts of the traditional public administration because these bodies obey presidential orders. In contrast to the traditional public administration, the accountability of the President for acts of independent bodies with executive functions is a more complex issue. It is uncertain how the citizenry will view the acts of independent bodies; and electoral accountability depends on the electorate s perception. 6 People might deem the acts of the independent agencies to be the responsibility of the President or not. Moreover, there is no way of determining in advance what this perception will be. It is impossible to impose a rule saying that the citizenry should not hold the President accountable for acts of independent agencies. The factors considered by the citizens when casting their ballots cannot be controlled in any way. For instance, if an independent regulatory agency starts implementing policies in one particular sector of the economy that adversely affect the people, it is hard to control whether the citizens will deem these deleterious effects to be the responsibility of the President. In other words, it is very difficult to control the electorate s perception of the lines of accountability for regulatory agencies. Therefore, whenever genuinely independent regulatory agencies are acting within a Presidential system (especially one with direct elections) the President faces the risk of being held accountable for their acts despite their independence. In this case, there will be what I call an accountability mismatch. Yet this is only one type of mismatch. There is, equally, a risk that the citizenry will fail to hold the President responsible for the acts of administrative agencies that are under his control, if these agencies are mistakenly viewed as independent. The institutional guarantees that aim at undermining the Presidential control over agencies, although 4

5 implemented, might be ineffective in some cases. Thus, if there is an inaccurate perception of the relationship between the President and the agencies, the citizenry might not hold the President accountable for the acts of the regulatory agencies that despite the fact of having institutional guaranties of independence are under his influence. This is a second type of accountability mismatch, which I will call mismatch (ii). Both cases of accountability mismatch can be illustrated in the following table: ELECTORATE AGENCIES PRESIDENTIAL INFLUENCE/CONTROL PRESIDENTIAL NON-PRESIDENTIAL RESPONSIBILITY RESPONSIBILITY Normal accountability Mismatch (ii) INDEPENDENCE Mismatch Normal accountability In sum, whenever genuinely independent regulatory agencies are acting within a Presidential system the President faces the risk of being held accountable for their acts despite their independence. But equally, there is a risk that the citizenry will fail to hold the President responsible for the acts of administrative agencies that are under his influence, if these agencies are mistakenly viewed as independent. While both of these risks are very real, their materialization cannot be predicted in advance. The consequences of this unpredictability will be discussed in more detail in section 1.4 below. The following two sections (1.2 and 1.3) will analyze the presidential preferences and what strategies the President could use to minimize both risks. 1.2 The preferences of the President The accountability mismatch can affect the President negatively or positively. If we assume that the President is seeking a positive outcome in the next election, either for his party or through his own reelection, 7 he does not want to be held responsible for unpopular policies. 5

6 He does, however, want to be linked to popular measures. As a consequence, on the one hand, accountability mismatch can harm the President if he is held responsible by the electorate for policies over which he has no control. On the other hand, the mismatch can benefit the President if he is held responsible for popular policies implemented by the agency. It would be a mistake, therefore, to assume that the President will always try to avoid the accountability mismatches. On the contrary, there are situations in which he might even prefer them. This preference will be dependent upon the nature of the policies implemented by the independent regulatory agencies. 8 If we consider both types of accountability mismatch previously described, the presidential preferences as regards accountability can be expressed in the following tables: ELECTORATE AGENCIES PRESIDENTIAL INFLUENCE INDEPENDENCE PRESIDENTIAL RESPONSIBILITY POPULAR POLICIES TABLE I POPULAR POLICIES FOR Normal accountability desired by the President Mismatch desired by the President NON-PRESIDENTIAL RESPONSIBILITY FOR POPULAR POLICIES Mismatch (ii) not desired by the President Normal accountability not desired by the President ELECTORATE AGENCIES PRESIDENTIAL INFLUENCE INDEPENDENCE PRESIDENTIAL RESPONSIBILITY UNPOPULAR POLICIES TABLE II UNPOPULAR POLICIES FOR Normal accountability not desired by the President Mismatch not desired by the President NON-PRESIDENTIAL RESPONSIBILITY FOR UNPOPULAR POLICIES Mismatch (ii) desired by the President Normal accountability desired by the President In other words, if we assume that the President is seeking a positive result in the next elections, either for his party, or through reelection, his preferences as regards accountability mismatch will depend upon the nature of the policies implemented by the regulatory agencies. 9 6

7 1.3 Presidential strategies to avoid electoral accountability for independent agencies acts A President facing the possibility of being held publicly accountable for the acts of independent agencies 10, in a situation in which it is very likely that the agency will implement unpopular policies 11, has a choice of two alternatives: he can either influence the public or he can influence the agency. The first alternative is changing the perception of the citizenry by trying to convey to them the actual independence of the agencies. The President may try to inculcate in the public an awareness of the reality that the acts of independent agencies are not his responsibility. The second alternative is pressuring agencies to implement popular policies. If, in spite of his educative efforts, a President will nevertheless be held accountable for the acts of the agencies, it is better to be responsible for popular policies. 12 The problem with both of these strategies is that their prospect of success is inherently uncertain. To change the public opinion or the public perception about agencies is a very difficult task. There are many factors that might impair its success, such as levels of literacy within society, availability of information, and interest in or familiarity with politics. It might well be the case that most constituents do not even know what a regulatory agency is. This seems to be the situation in Brazil. 13 Another factor that may impair this strategy is the existence of different levels of independence. 14 If different agencies have different guarantees of independence, as they do in Brazil, the costs for citizens to obtain the information necessary to identify which ones they will consider independent and which they will not may simply be too high. In this context, another influential factor may be public debate in the media. It might be the case that, through the media, a country even one which does not have good guarantees of independence for the agencies has meaningful exposure to the idea that agencies are 7

8 independent from the President. In a country in which the media is strong and very influential (and the costs for checking the accuracy of this information independently are very high) this might be one of the strongest tools to change public perception in a short period of time. However, even if the information is obtained by the citizen or conveyed by the President, the complexity of the system of independence may be an obstacle for convincing people that there are independent and non-independent agencies and they should, accordingly, differentiate their acts at the time of the elections. All these factors make extremely uncertain the success of any attempt to convince the electorate that agencies are independent. If we are still considering agencies that are likely to implement unpopular policies, the second strategy available to the President is trying to influence regulatory agencies. There are many different ways in which the President can undermine agencies independence and bring agencies choices closer to his policy preferences. Although changing agencies policy preferences seems to be more feasible than changing public perception, the success of this strategy is equally uncertain. If the powers of the President do not give him a genuine capacity to coerce the agency, i.e. if the agency has particularly strong guarantees of independence, the effectiveness of the President s efforts will be entirely unpredictable. In sum, a President facing the risk of being held accountable for the unpopular acts of an independent agency can try to avoid this by informing the public about its independence; or, he can try to undermine its independence in order to ensure that the acts for which he is being held accountable are, in fact, under his control. On the one hand, public perception can harm the President by holding him responsible for the unpopular acts of independent agencies. The possible strategies available to President in defusing this possibility have been discussed above. On the other hand, the public may fail to 8

9 hold the President accountable to his influence over agencies (accountability mismatch (ii)). The latter risk will materialize when public perception deems agencies independent, but they are actually strongly influenced by the President. As mentioned above, the possibility of the electorate considering the agencies independent of the President is very remote in the Brazilian scenario. 15 For this reason, it will not be further discussed here. 1.4 Publicizing independence and undermining its guarantees: a successful strategy? The previous sections have argued that, in certain Presidential regimes, the electorate might hold the President accountable for the unpopular acts of independent agencies. The strategies at the disposal of Presidents in order to avoid this undesired accountability are the following: emphasize or publicize the agency s independence (strategy 1); and/or, try to influence the agency s policy choices in order to make them implement popular policies (strategy 2). Should the President adopt these strategies simultaneously? Can the President adopt these strategies simultaneously, or are they incompatible? Does he have incentives to rely more on one of these strategies? In the present section I will discuss how the unpredictability of electoral accountability and of the nature of the policies that will be implemented will affect the strategy choices of the President. 16 If it is very likely that unpopular policies will be implemented by agencies, strategy 1 (publicizing independence) will always be employed. The President may be uncertain about the status of the independent agencies in public opinion. However, this uncertainty is not relevant in the selection of Presidential strategies in his effort to avoid undesirable electoral results. The President does not need to know which risk he is facing, because this will not affect his strategy choice. If unpopular policies are implemented, it is always better for the President if public 9

10 opinion holds that agencies are independent. If the electorate does not realize that the agencies are independent, this information might avoid a potential accountability mismatch. If, on the other hand, the electorate was already disinclined to hold the President accountable, the emphasis on the agency s independence does not harm the President. This consistency of strategies in both hypothesis of accountability solves the problem of uncertainty regarding public opinion and electoral accountability. Therefore, if it is likely that independent agencies will implement unpopular policies, he will have strong incentives to publicize the agency s independence as much as he can. On the other hand, strategy 2 (attempting to influence the regulatory agencies) creates a more complex scenario. As mentioned above, it is reasonable to assume that the President prefers to be accountable for popular policies and unaccountable for unpopular policies. As a consequence, if he is facing the risk of being held accountable for the acts of the agency, he has incentives to try to transform policies from unpopular to popular. Conversely, if he is not facing the risk of being held accountable for the acts of the agency, he may try to use the agency as a way of implementing unpopular policies because he is not being accountable for them, or he may not try to influence the agency at all. The problem that the President faces, however, is that he does not know in advance if he will be held accountable for the acts of the agencies or not. Therefore, the President does not know if he should be investing in the strategy of influencing agencies to implement popular or unpopular policies. It is interesting to note that the accountability mismatch (ii) (agencies deemed independent, when there is actually presidential influence on them) may be created by the simultaneous use of both strategies (1 and 2). As mentioned above, two strategies to impede this undesirable accountability are asserting a high degree of agency independence and trying to 10

11 influence agencies policy choices. If both measures are taken at the same time, there is a chance that the President will end up in a situation where agencies, in fact under the influence of the President, are held by the electorate to be independent and, consequently, his influence over them to implement popular policies is unaccountable and this will be an accountability mismatch that is not desired by the President (see Table I above). The risk goes both ways. When the President is trying to decide whether to use both strategies at the same time, the risk that he is facing is that he does not know in advance whether he will be held accountable for the acts of the agencies or not. He also does not know whether his influence over the agencies will succeed or not. Therefore, the President does not know whether, after publicizing the idea of independence, he should invest in strategies to influence agencies to implement popular or unpopular policies. In both cases, he faces the risk of an undesirable accountability mismatch: he may either be nonaccountable for popular policies or he may be accountable for unpopular ones. There is an easy way out of this dilemma: the President can play with the electorate s perception. He may simply claim responsibility for popular policies and blame agencies for unpopular policies. 17 The President can try to emphasize and publicize his attempts to influence the agency as regards popular policies, and try to make this influence very discrete (unnoticeable if possible) when dealing with an unpopular policy. As a consequence, the influence over agencies will accrue to the benefit of the President only if agencies are implementing popular policies. This manipulation of the electorate s perception in relation to strategy 2 (influencing agencies) can be complementary to strategy 1 (publicizing the idea of independence). If the regulatory agencies were under Presidential control it would be impossible for the President to claim that his influence on the policies may vary along a period of time. If they are seen as 11

12 independent bodies, the President can claim that they are not under his control, but are open in certain cases to his influence and suggestions. Considering this, the astute President will always seek to emphasize or publicize independence while seeking to influence the agency s choices bringing this influence to the attention to the public when it is convenient for him. 1.5 Summing up the problem of accountability mismatches In this first part of the paper I have considered the risk of accountability mismatch as a model of incentives that influences presidential action. My conclusion is that, given the uncertainty regarding public perception, in a situation where it is likely that agencies will implement unpopular policies, the President has incentives to inculcate in public opinion an impression of independence. This attempt at influence may be coincident with some Presidential efforts to influence independent regulatory agencies either publicly or in a secret way. The interaction between the President and the independent regulatory agencies in the Brazilian legal system, in light of the risk of an accountability mismatch, will be analyzed below. Before that, an important caveat should be made, though. The analyses developed in this second part of the paper do not draw conclusions on the incentives for creating regulatory agencies in Brazil. Rather, taking their creation as a given, I am inquiring into their actual functioning. 2. ACCOUNTABILITY MISMATCH IN BRAZIL In 2002, a Worker s Party (PT) candidate, Luis Inacio Lula da Silva (Lula), was elected President of Brazil for the first time. Lula s administration started in January This was the first shift in governing coalitions after the state reform, i.e. it was the first election after the creation of Brazilian regulatory agencies

13 Since Lula s inauguration, there has been an intense debate about regulatory agencies, their roles, and their designs. Lula s administration has been active and influential in this debate. The hypothesis developed in this section is that the risk of accountability mismatch may explain many of the controversial and somewhat contradictory positions that Lula s administration has been taking regarding agencies independence. At the very beginning of its Presidential mandate, Lula s administration was in a very sensitive position regarding regulatory agencies. At the time of his inauguration, the agencies were entirely composed of nominees from the previous administration. 19 The fact that all agencies were governed by appointees of the previous administration could diminish the possibility of implementing Lula s political agenda. In other words, it seemed very likely that independent agencies would implement unpopular policies what could undermine Lula s reelection, or the success of PT in future Presidential elections. This particular composition of agencies made the risk of accountability mismatch more critical because the policies adopted by the agencies were likely to be contrary to those preferred by the government. Thus, the risk of accountability mismatch would be even more daunting for a President in Lula s situation. How the Brazilian President dealt with this situation is the main question addressed in this second part. This section will argue that an important concern for Lula was the uncertainty as to the public perception of the relationship between the President and the acts of regulatory agencies. The risk of accountability mismatch was particularly relevant in Lula s case. There was a risk, which eventually manifested, of the agencies implementing policies that would not benefit the electoral performance of Lula s administration. The acts and attitudes of Lula s administration regarding the agencies actions can be interpreted as responses to this risk of 13

14 accountability mismatch namely, attempts to influence agencies and to emphasize and publicize the idea of independence. 2.1 Publicizing and emphasizing the idea of agencies independence In February 2003, the President Lula came out of a ministerial meeting and declared to the most important national newspapers and TV broadcasters that the agencies govern the country. He also complained that he was informed about agencies decisions by newspapers. Finally, he declared that the decisions that affect people are not analyzed by the executive branch. 20 This statement was followed by others made by him and by other governmental leaders affirming that the structure of the agencies was problematic. 21 This statement was followed by suggestions for the reform of regulatory agencies design and structure. 22 These declarations initiated a public debate in the media regarding the importance of independent agencies and the need to guarantee their independence. Reports, op-eds and all sorts of public manifestations of this view came to the press. 23 The vast majority of the expressed opinions supported the independence of the regulatory agencies. 24 All of these debates may be understood as reactions to the governmental effort to publicize and emphasize the independent nature of regulatory agencies. 2.2 Attempts to Influence Agencies These declarations of the President and governmental leaders about the independence of agencies were followed by a series of acts that can be interpreted as attempts to publicize part of the governmental influence over the decisions and policies adopted by these agencies. 14

15 First, in March 2003, the Brazilian President appointed a commission to discuss a legislative proposal to change the structure of the agencies. 25 In the meantime, the President started a public debate with the telecommunications and electricity agencies. These debates were related to the increase of telecommunications and electricity tariffs. Even if the President might be constrained in simply revoking the acts of regulatory agencies, 26 his legislative and regulatory powers can nevertheless be a concrete threat to these agencies. These presidential powers can change agencies structure and undermine their actual independence. 27 Thus, the episodes described above show a clear intention of implementing structural chances (expressed by public declarations indicating that these changes were needed, by the appointment of the commission and eventually by the bill to reform regulatory agencies) and can be interpreted as an attempt to influence agencies. The acts of Lula s administration towards independent regulatory agencies can be considered a signal to the agencies. The executive branch could be saying that acts contrary to governmental policy preferences may not be revoked, but will be punished with severe structural changes. Indeed, the government actually implemented at least one measure against ANATEL. The President enacted executive decrees to create an office within the ministry of telecommunications. ANATEL s functions of policy and planning would be transferred to this office, and ANATEL s role would be reduced to the implementation of this office s decisions. 28 As this episode shows, the President has considerable freedom to impose structural measures to undermine agencies independence. 29 This possibility may exert subtle forms of Presidential pressure and influence upon regulatory agencies. The second episode that might be interpreted as a means of pressuring agencies is the governmental proposal of reviewing telecommunications and electricity tariffs. Lula s 15

16 administration advocated for a proposal that did not follow the strict formulas established by the previous administration in statutes, regulations and contracts. In the case of electricity, the administration supported the implementation of three different proposals: Imposing a limit for the increase, maintenance of the residential consumers subsidies for industrial consumers for a longer period, and postponing the compensation for devaluation for one year. 30 In the case of telecommunications, part of the administration supported deviation from the provisions established by the previous government, whereas the other part advocated for the compliance with the existing rules. 31 In both cases, non-compliance with the provisions established by the previous administration would mitigate the increase in tariffs and, thereby, benefit final consumers, especially low income individuals who would be particularly affected by higher infrastructure service bills. After a public debate on the issue, the decision to have lower increases in electricity tariffs was publicized as a successful agreement between the government and the agency: the press annunciated that ANEEL was following the Presidential suggestions. 32 At least one newspaper described it as Lula s administration policy, and not as an agency s policy. 33 In contrast, in the case of telecommunications, in which a lower increase was not implemented and the provisions of the previous government were applied, the press stated that the telecommunications agency (ANATEL) had not followed Presidential suggestions. 34 As mentioned before, however, there was a strong divergence among members of the current administration as regards the telecommunication tariffs. The final decision of ANATEL was certainly contrary to the preferences of the Ministry of Telecommunications, but it was in compliance with the preferences of the Ministry of Finance and of the Chefe da Casa Civil

17 Therefore, the ANATEL s decision was not necessarily counter to the government s wishes, as publicized by the press. 36 In this case of telecommunications, after the decision of ANATEL was publicized as being contrary to the government s policy preferences, the Ministry of Telecommunications urged consumers to file legal suits against the tariff increases. A series of legal injunctions struck down the increases implemented by ANATEL. These episodes suggest that the Lula administration made continuous efforts to associate its name only with certain acts implemented by independent agencies. To be sure, it is difficult to assert that the facts described above prove that the President is only trying to protect himself against undesirable electoral accountability. This anecdotal account of the government s reaction to independent regulatory agencies structures and to tariff increases might be interpreted simply as a consequence of the fact that most members of the Lula administration were not familiar with the regulatory model, a fact that generated a series of reckless declarations by the President and governmental leaders at the beginning of the mandate. On this view, the fact that these declarations were reconsidered afterwards is merely a response to the negative reaction of public opinion towards them. This softening of the criticisms against the agencies, however, also fits with my interpretation of these events. Indeed, the fact that these two episodes the bill to restructure the agencies and the battle over tariff increases happened at the same time suggests that the former could be a strategy to influence the agencies. After the final decisions of the agencies regarding the tariffs, the threats and complaints publicly addressed to agencies by important governmental officials became less frequent and less intense. 37 This happened only after the issuance of a final decision about tariffs increase. This timing might also be interpreted as an evidence of the fact the bill was actually a 17

18 strategy to put pressure on agencies. Furthermore, in October 2003, the commission in charge of drafting the bill published a report in which agencies were not only praised, but were deemed indispensable. 38 Since then, the process of drafting the bill continues, but it has not been the subject of as much attention by the press or as large a concern of public opinion in general. All of these episodes reinforce the idea that the initial declarations about the structural reform of the agencies were aimed at putting pressure on regulatory agencies. This form of pressure (structural reform), however, might not be perceived as such. Especially in the eyes of the electorate, these acts might not be interpreted as threats or sanctions to the agencies. 39 As a consequence, the Brazilian electorate influenced by the public declarations about agencies independence - might conceive of the process of tariffs review merely as a negotiation process between the government and the agencies. As a consequence, if agencies are seen as independent bodies, this form of Presidential influence over agencies may be unaccountable to public interest and democratic will through the electoral process Conclusion As I have analyzed in the first part of the paper, the core of the problem in the relationship between the President and regulatory agencies inheres in the fact that electorate s opinion about this relationship does not necessarily reflect the reality. This inaccurate view of the electorate creates the risk of the President being deemed responsible for something of which he is not in control or vice-versa. This is what I have called an accountability mismatch. There are two types of accountability mismatch. In the first, independence can be thought to be less effective or robust than it actually is and, accordingly, the President can be wrongly held accountable for the agency s decisions. The second type of mismatch creates an inverse 18

19 problem: an appearance of independence can disguise inappropriate presidential influence, and can create an unaccountable locus of Presidential power. In both cases, if the agency is implementing unpopular policies, the President will have strong incentives to emphasize and publicize the agency s independence. By doing so, the President tries to convey to the electorate the idea that these agencies are not under his control although they might be open to Presidential influence under certain circumstances. If the agency is, in fact, independent, but there is a chance that the public will not view it as such, the President also has incentives to emphasize and publicize his influence as much as he can on the implementation of popular policies, despite the agency s independence. By doing so, he can try to associate his image with popular acts of the agency, if any, while avoiding accountability for unpopular policies through the idea of independence. The episodes discussed in the paper are anecdotal examples that suggest that accountability mismatch is driving executive decisions towards agencies; however, whether this is actually the case in Brazil remains to be proven. The second part of this paper has only shown that Lula s administration in Brazil seems to be concerned with the independence of the agencies. Much more empirical evidence must be garnered to deduce from this fact the conclusion that Lula s administration is, for the sake of manipulating electoral accountability, self-consciously advancing the idea of independence of agencies and, at the same time, making efforts to influence agencies and bring them closer to the spectrum of popular policies. Even without the proof that the risk of accountability mismatch is operating as a system of incentives to guide Presidential behavior in Brazil, the possibility of having these mismatches in Presidential regimes seems to be very concrete. These mismatches may pose significant risks to the regulatory model and to the democratic system. For this reason, the question of 19

20 accountability mismatch is a problem that deserves more attention in the study of economic reforms in Latin America. ** JSD Candidate, Yale Law School, USA. Researcher, Law and Democracy Project, CEBRAP, Brazil. Contact: 1 The word accountability refers to the link between the outcome of policies implemented by a democratically elected government and the sanctions that the electorate imposes on this government. In other words, Governments are accountable if citizens can discern representative from unrepresentative governments and can sanction them appropriately, retaining in office those incumbents who perform well and ousting from office those who do not. An accountability mechanism is thus a map from the outcomes of actions (including messages that explains these actions) of public officials to sanctions by citizens. Elections are a contingent renewal accountability mechanism, where sanctions are to extend or not to extend the government s tenure. Bernard Manin, Adam Przeworski & Susan Stokes, DEMOCRACY, ACCOUNTABILITY AND REPRESENTATION (1999), p. 10. [henceforth refered to simply as DEMOCRACY]. Democratic systems have also other accountability mechanisms that operate between elections, such as checks and balances, which are defined as a mechanism of horizontal accountability. These other mechanisms will not be discussed here. 2 I am referring to the debates that discuss about the need of having regulatory agencies about the accountability of these agencies. In the latter, in light of their independence from political branches of government, scholars intensely debate to whom they should be accountable and by which mechanisms. Although extremely relevant, consideration of these debates will not be discussed in this paper. 3 These institutional features include, for instance, fixed terms of office, staggered nominations, requirement of Congressional approval for Presidential nominations, and mechanisms of financial autonomy. 4 Apparently this is a hard question to answer: It is by no means clear what place executive officials are meant to play as representative of the people. Are they agents of the government or of the people? If of the former, are they primarily responsible to the executive which employs them, or the legislature which funds them? Delmer Dunn and John Uhr, Accountability and Responsibility in Modern Democratic Governments, apud DEMOCRACY, p The expression traditional public administration refers to all bodies that compose public administration in Brazil before the State Reform promoted by Cardoso. These bodies can be divided as bodies of the direct administration (administração direta) and bodies the indirect administration (administração indireta). Although the later is supposed to have a higher degree of autonomy, in comparison with the former, they will be considered equally subordinated to the President for the purposes of this analysis. 6 Reelection is not absolute proof that [the incumbent] is a good representative; it proves at most that voters think so. Hanna Pitkin, THE CONCEPT OF REPRESENTATION (1967), p Politicians want to be elected and reelected. DEMOCRACY, p. 32. ( This is true regardless of whether politicians also have other interests as long as they put a high value on holding office per se. (footnote 6)). Some authors state that electoral accountability is very strong in Presidential systems. Some authors consider that electoral accountability is even stronger when there is the possibility of reelection. See, for instance, Shugart & Mainwaring, Presidencialism and democracy in Latin America, Rethinking the terms of the debate, in Presidentialism and democracy in Latin America. Cambridge, University Press, 1999, pp. 33 and ff. (stating that Reelections create an incentive for Presidents to implement popular policies and have a responsible administration that will facilitate reelection).if this assumption is correct, the incentives of electoral accountability are central in the Brazilian presidential regime, where the president is directly elected by people and can be reelected for a second mandate. This provision was added to the Constitution in 1997 by Constitutional Amendment n. 16. This amendment allows only one re-election. 8 This analysis of presidential preferences assumes a pure model of accountability, in which the electorate considers only the previous performance of the President to cast their votes. It would be possible to elaborate, however, a more complex model of preferences, if we assume that the electorate uses not only the previous performance of the President in order to take its decisions, but also it uses other information to cast their votes. For an analysis of these models, see Bernard Manin, Adam Przeworski and Susan Stokes, Elections and Representation, in DEMOCRACY, p ( when voters use their vote both to choose better government and to structure incentives for the 20

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