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UNCLAS SECTION 01 OF 02 BRASILIA 000390 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PGOV KDEM BR
SUBJECT: Brazil's Congress Prepares to Rein in President's Decree 
Authority 
 
REF: A) Brasilia 160, B) 07 Brasilia 1670 
 
¶1.  (SBU) Summary.  Angered by an alleged overuse of decree-making 
authority that has caused legislative gridlock, Congress will try to 
limit the president's ability to dominate the legislative agenda and 
implement policy through issuance of "provisional measures" (MPs). 
President Lula's unprecedented use of MPs, which have blocked the 
legislative agenda since late last year, has served to erode 
congressional independence and initiative in a system that already 
heavily favors the executive.  With broad multiparty agreement that 
MPs must be reined in, if legislators can agree on the details of a 
constitutional amendment on MPs they will reclaim control of the 
legislative agenda, a change that would significantly enhance the 
legislative branch's autonomy and power.  Congress could approve a 
constitutional amendment bill by next September, which would take 
effect immediately.  End summary. 
 
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Special Committee Takes on MPs 
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¶2. (U) Since last December, the Chamber of Deputies agenda has been 
completely blocked by MPs, with the plenary constitutionally barred 
from voting on any other business.  The situation was similar in the 
Senate.  As a result, congressional frustration has welled up 
because legislators were unable to debate bills of their own 
authorship in the plenary, instead being forced to vote on one MP 
after another.  In February, Chamber of Deputies President Arlindo 
Chinaglia (Workers' Party, PT, government; of Sao Paulo) appointed a 
special committee to propose changes to the constitution governing 
the use of provisional measures (MP), one of the important 
policy-making tools available to Brazilian presidents. 
 
¶3. (U) MPs have been around in one form or another since 1937, but 
their use grew rapidly under the 1988 constitution, which gives the 
president carte blanche to issue an MP, provided it deals with an 
"urgent and relevant" matter.  The 1988 text on MPs was taken 
directly from the 1947 Italian Constitution, and was intended for a 
parliamentary system, but Brazilians afterwards chose to retain the 
presidential system in a national referendum, leading to a poor fit. 
 The text was amended in 2001 to force congress to vote on MPs after 
45 days, at the same time removing the president's right to renew 
MPs without limit.  President Lula has used MPs more than any other 
president in modern times: 311 MPs in five years; his predecessor 
issued 365 in eight years. 
 
- - - - - - - - - - - 
The Trouble with MPs 
- - - - - - - - - - - 
 
¶4. (U) An MP takes effect immediately on issuance and remains valid 
for 60 days.  It is automatically renewed once for 60 days.  If not 
voted into law within 45 days of its issuance, an MP "locks" the 
congressional agenda and the plenary cannot vote on anything else. 
If rejected by a vote in Congress, or if the MP is not voted on 
within 120 days, it becomes invalid and the Congress must prepare 
legislation to deal with any residual effects of its period of 
validity. 
 
¶5. (SBU) This system has effectively allowed the executive to 
dominate the legislative agenda by issuing a constant stream of MPs 
and forcing congress to focus on executive priorities almost to the 
exclusion of all else.  President Lula's reliance on MPs has been so 
great that he got tangled in his own web last December (ref A). 
Desperate to have the congress renew the tax on financial 
transactions (CPMF), the executive branch was actually forced to 
revoke several supposedly urgent MPs to clear the path for the CPMF 
legislation.  Still later in the game, when the critical CPMF 
legislation was before the Senate, pro-government legislators in the 
Chamber of Deputies went into "obstruction" so as not to vote on any 
MPs, because passage of MPs would have had the effect of forwarding 
them to the Senate, thereby locking its agenda.  Such shenanigans 
only heightened legislators' perception that it was time to reform 
the MP rules.  Federal Deputy Leonardo Picciani (Brazilian 
Democratic Movement Party, PMDB, government coalition; of Rio de 
Janeiro) pointed out another problem: he believes MPs degrade 
congress, since at present some interest groups make their case 
directly to the executive in hopes of obtaining an MP, instead of 
working with congress to seek a legislative result.  He added that 
this process hurts the legislative branch by distancing it from the 
people. 
 
BRASILIA 00000390  002 OF 002 
 
 
 
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What Congress Can Do 
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¶7. (SBU) Recognizing the utility of MPs in certain cases, most 
government and opposition legislators agree that MPs should not be 
eliminated, just reined in.  Senator Eduardo Suplicy (Workers Party, 
PT, government; of Sao Paulo) told Poloff on March 17 that "everyone 
agrees something must change."  Deputy Picciani, the rapporteur of 
the special committee on MPs, will present a draft constitutional 
amendment in the week of March 24.  Poloff asked him on March 19 why 
MPs should not be eliminated entirely and he said that was 
"culturally impossible because they have been around for so long." 
Picciani, opposition leaders, and even some pro-government 
legislators want to eliminate the 45 day provision, but President 
Lula is strongly opposed, convinced that without it, there is no 
incentive to bring MPs to a vote, giving congress the equivalent of 
a pocket veto.  Lula is reportedly fighting hard ensure that MPs 
will not lose their force of law, stating in a speech on March 18 
that it was "humanly impossible" to govern without MPs, and that 
"The time and agility that things need to happen many times is 
faster than the time for democratic discussion."  This power 
struggle between the legislative and executive branches will likely 
strengthen democracy, and this is a rare moment when a single 
constitutional change will significantly rebalance the two powers. 
But nobody is pretending this is a win-win situation.  The executive 
branch is going to lose power, and congress will gain power, which 
is why Lula and his team have been working so hard to minimize the 
damage. 
 
¶8. (SBU) Picciani said some sort of compromise will be arranged that 
will probably eliminate the 45 day rule and send MPs to the top of 
the congressional agenda on issuance, but without actually locking 
the agenda.  He said congress will probably retain the limits on 
renewal, but might change the length of validity for MPs before they 
are voted on.  A provision to have the Constitution, Justice and 
Citizenship Committee screen all MPs to ensure that they are 
"relevant and urgent" would probably also pass.  Some opposition 
deputies want budget and tax matters off limits for MPs, but 
Picciani said the final version would probably allow the president 
to continue using MPs for budgetary purposes, but not tax matters. 
 
- - - - 
Comment 
- - - - 
 
¶9. (SBU) Eliminating the 45 day rule will make it more difficult for 
the president to dominate the legislative agenda in the way Lula 
does now.  Removing the requirement to vote on MPs first would place 
more power in the hands of party leaders, as the legislative agenda 
is set by congressional party leaders in consultation with the 
president of the Chamber or Senate.  And new rules limiting the 
president to one renewal of an MP would force the president to build 
stronger alliances with other parties.  Picciani said it would make 
a president use MPs more sparingly, since getting them passed would 
always incur a political cost and rejection of legislation backed by 
the executive has political downsides for the president. 
 
¶10. (SBU)  Comment, continued: The reforms would also introduce 
additional incentives for corruption akin to those that led to the 
mensalao vote-buying scheme revealed in 2005 (ref B).  But this 
potential negative effect will be counterbalanced by a more 
significant and beneficial democratizing effect.  Whatever the 
details of the reforms, they will increase congress's power and 
provide more equilibrium to the three-branch system.  The executive 
will undoubtedly learn to govern with the new restrictions - the 
media have pointed out that governors and mayors do so already 
without any MP-type powers - and congressional business will be more 
representative of congressional, not executive, interests. 
 
HENSHAW