Fachin’s List: the end of political bias in the Brazilian coup?

Last Tuesday, Minister Edson Fachin, the Supreme Court judge responsible for the Lava Jato (Operation  Car Wash) investigations in Brazil, responded to the request from the Attorney General, Rodrigo Janot, to approve investigations by the Supreme Court into serving politicians implicated by the plea bargain testimony of the CEO and other executives of the Odebrecht company.  In keeping with the argument that the public has a right to know, videos of the statements of the Odebrecht executives have been made available to the media and were posted on the website of the most important TV network, Globo, and broadcast on news programs.

Investigations will now be conducted into eight of the ministers of the current administration headed by unelected substitute president Michel Temer, all longstanding close associates of the president holding key posts in his government, three governors, a minister of the Federal Court of Accounts (TCU), 24 senators, including the senate’s current president, Euníco de Oliveira, from Temer’s own party, the PMDB, 38 deputies in the lower house of congress, including its current president Rodrigo Maia, of the right wing DEMs, and a state congress deputy. What these 98 accused politicians have in common is that they can only be judged by the Supreme Court, because they enjoy foro privilegiado as current office holders in the executive or legislative branches of the Brazilian state. The same privilege of not being tried by lower courts also applies to serving judges, as members of the judicial power. The judicial privileges extended to public authorities in Brazil are amongst the most generous in the world (as are the financial rewards that the state assigns to them). If British prime minister Theresa May were to commit a crime, she would be tried by the same court that would try any other citizen of the United Kingdom for the same offence.

The most exceptional beneficiary of the Brazilian rules is Michel Temer himself, also denounced by Odebrecht executives. As President of the Republic he cannot be investigated for any wrong-doing that he committed before assuming the office, only for acts he commits while holding it. The logic of all this is preserving the stability of the state. But immunity from prosecution is not eternal, even for ex-Presidents. Minister Fachin also approved new investigations into 22 other politicians no longer in office, who will be tried in the lower court over which federal judge Sergio Moro presides. The four ex-presidents to be investigated (Fernando Collor de Mello goes to the STF because he is now a senator) include Dilma Rousseff, Lula (who now faces additional charges on top of those already being considered by Judge Moro in his court in Curitiba), and, rather more sensationally, ex-president Fernando Henrique Cardoso, of the PSDB. It has often been argued that the roots of the scandals involving the state oil company Petrobras lie in the Cardoso era, and that the mensalão scandal that was the first incident to tarnish the reputation of the PT, although the PT government did not interfere with the investigations that led to the imprisonment of leading figures in the party, also had its equivalent in the era of PSDB rule.

Fachin’s list has provoked great excitement, because, in addition to ex-president Cardoso, it includes amongst the serving senators to be investigated Aécio Neves, the PSDB’s defeated PSDB candidate in the 2014 general election, who shares the prize for number of charges now faced by senators with the PMDB strong-man Romero Jucá (earlier a minister of Temer’s government but forced to resign following divulgation of a scandalous phone conversation). Renan Calheiros, former President of the Senate, also of the PMDB, faces four charges, but the list of leading figures of the PSDB now brought under the scrutiny of the Supreme Court also includes Geraldo Alckmin, the governor of the state of São Paulo, denounced for bribe taking by three Odebrecht executives, the current foreign minister, Aloysio Nunes, and his predecessor, José Serra, still a senator. Both Alckmin and Serra have been PSDB candidates for president (defeated by their PT rivals). Although there are plenty of new PT figures now waiting on the pleasure of the Supreme Court as well, the number of leading PSDB and PMDB figures included in the list, as well as politicians from other parties, has led at least some commentators to conclude that accusations of political bias in the Lava-Jato process should now be laid to rest and that the prospects of the investigations finally bringing about a thoroughgoing reform of Brazil’s institutions and ways of conducting political business are now good.

I would argue that we should not be too eager to jump to this kind of conclusion. My starting point is that this political turmoil needs to be seen in the context of a “constitutional” coup and the likely consequences should be evaluated in terms of the goals of the coup. Although the instruments for removing the elected president, Dilma Rousseff, from office via impeachment in 2016 were politicians and judges, the coup was directed by Brazil’s rentier elites with very specific goals in mind. Step one, accomplished through judicial states of exception supported by gross mainstream media manipulation, used a conservative congress to remove a social democratic government from power and created a substitute regime dedicated to carrying through a radical neoliberal agenda. The emphasis here is on radical, since the PT itself had followed centre-left social democratic parties in the rest of the world in accepting the core principles of neoliberal economic management, whilst seeking to offer improvements to the lives of working people through creating formalised jobs that provided more of them with access to the social security system, using conditional cash transfer programs to reduce hunger, poverty and illiteracy, and broadening access to higher education (although this involved subsidising private universities as well as building more public ones).

Timing has always been a key element of the coup strategy. The initial onslaught focused on the PT and produced rapid returns in terms of a collapse of the PT vote in the 2016 municipal elections and some damage to the reputation of ex-president Lula as a result of the massive publicity given to charges that were not supported by any kind of proof but were presented in a particularly theatrical performance by Lava Jato prosecutor Deltan Dallagnol, based on what most jurists in the world would consider the unacceptable logic that if the accused was in a position to do something then he must have done it. Lula is due to appear before Judge Moro to answer the charges previously brought against him in early May. The difference between judgement in lower courts and the Supreme Court is one of the relative agility of the first kind of process in relation to the Supreme Court’s much slower handling of those who benefit from foro privilegiado. Even if the Court assigns investigating and judging the accused politicians priority relative to other business with which its ministers have to deal, it is not likely that there will be verdicts on those in this category on Minister Fachin’s list before the next general election is due in 2018.

Step two of the coup, implementing a legislative agenda of a kind that voters had rejected in the 2014 elections and, indeed, considerably more radical than anything suggested even by the opposition at that time, has required a considerable amount of political deal-making and some help from allies in the supreme court, which now include former justice minister Alexandre de Moraes. The ferocity of the initial assault on the PT did provide an environment favourable to limiting protests against congressional approval for the constitutional amendment that freezes public sector spending for twenty years, an austerity package threatening the destruction of public health and education services condemned even by the IMF for its socially regressive character. Advances in terms of the agenda of the forces supporting the coup have also been made in terms of satisfying the agribusiness/landowner lobby’s demands, such as the suppression of indigenous and quilombola territorial rights (which has involved some congressional persecution of the country’s anthropologists). A reform of secondary education that includes changes that are profoundly prejudicial to working class students was enacted by decree, without congressional debate, producing occupations of schools by their students that were vigorously repressed by the police.

The most recent achievement in the lower chamber of the congress was that Rodrigo Maia engineered a rapid vote in favour of extension of subcontracting of jobs in the primary activities of enterprises. This change means that under the new rules, a school that had previously outsourced cleaning to a third party would now be able to do the same with its teaching staff. The objective of this “reform” is quite unambiguously to reduce the rights and benefits that workers enjoy as sub-contracted employees and lower labour costs. Its consequence will be to promote casualization and precarianisation in all labour markets. In order to speed the new legislation through congress, it was based on a draft law that had already been presented to the congress by the administration of Fernando Henrique Cardoso but was shelved at the request of Lula when he won the presidency. Dusting off this forgotten piece of radical neoliberal legislation enabled a vote to be taken so quickly that reasoned opposition to it hardly had time to express itself, a kind of coup within the coup.

Nevertheless, what the lower house did immediately provoked a negative reaction from leading figures in the PMDB in the senate, led by Renan Calheiros, who joined eight of his party colleagues in the senate in sending a letter to Michel Temer asking him to veto the law. Calheiros mentioned the threat it represented to the rights enshrined by Getúlio Vargas’s Consolidated Labour Laws of 1943, thereby aligning himself with the position of the CUT, the trade union central that supports the PT.  But these peemedebista senators also expressed the anxiety that approving this law would prejudice the possibility of congressional approval for the other major measure on the coup’s agenda for rebalancing the public finances, so-called “reform” of the pensions system. Although Temer has made some concessions on the proposed pension reform, they are relatively insignificant in terms of the dramatic impact that it would have, and not dampening  public opposition to the proposed changes to pensions in the country as a whole.

Even the groups that mobilised in the streets in support of the impeachment of Dilma Rousseff manifest no enthusiasm at all for the proposed reform of pensions when they returned last month, in rather smaller numbers, to demand the continuity of the Lava Jato process. The latest large-scale poll on the issue shows 93% of those polled to be against increasing the minimum age for retirement, and 80% against changing labour law to permit the generalisation of subcontracting. Temer’s approval ratings have now dropped to 5% or below in most of the country, and even in the region where he scores slightly higher, 6% approval, the Southeast, opposition to pension reform is particularly strong. Objectors to the freezing of public expenditure for twenty years were recorded as 83% of those polled. At first sight, then, it looks as if the coup is in trouble in terms of securing its basic objectives. These are furthering the interests of an oligarchy that seeks to maintain its extraction of exceptionally high rents in the form of interest payments on public and private debt and push forward with further privatisation of public services from which members of this class and their foreign capitalist associates will benefit, at the expense of the living standards, job security and access to social security and public education and healthcare of the majority of the Brazilian people. If senators and deputies want to be elected again in 2018, they need to think about the potential cost of supporting measures that are so widely unpopular and they are clearly beginning to do so.

What differences does Minister Fachin’s cross-party list make to the post-coup scenario? Clearly those who currently enjoy foro privilegiado will not want to risk losing their seats and becoming susceptible to more rapid judgement by a lower court. On the other hand, they also have to hope that the Temer regime can be kept afloat and new deals be struck to save themselves in the longer term. There is enormous uncertainty, since the 2014 Dilma-Temer ticket is still being judged in the Higher Electoral Tribunal for alleged campaign finance irregularities, and timing will again be crucial in determining whether, should Temer be removed, his successor will be selected by indirect election by the congress or direct election by voters. Polls suggest that Lula has recovered much of his popularity and would now win a direct election for President. He has already declared his intention to stand, but would be blocked from seeking re-election should he be convicted in the court of Sergio Moro. The initial prioritisation of attacks on the PT therefore had longer-term consequences because of the different time-scale of Supreme Court actions against leading non-PT politicians who have only now been opened up to investigation as a result of the Odebrecht plea bargains, despite having been denounced on many previous occasions by others. Minister Fachin’s list is not a surprise in terms of who’s on it, simply a welcome indication that past impunity could now be ended (and bearing in mind, of course, that some of those on the list may actually be innocent). Eduardo Cunha, the former PMDB leader of the house and initiator of the impeachment process has already been sentenced to 15 years and 4 months in prison by Moro, although the ultimate consequences of that judgement remain to be seen. Cunha would certainly have an interesting tale to tell were he to decide to tell it, as would figures such as Sergio Cabral, ex-governor of Rio de Janeiro. It also remains unclear what the consequences, in terms of levels of popular protest, would be were Lula to be convicted by Judge Moro and prevented from standing for re-election.

Yet although it seems that few Brazilians are happy about the way things have been  going since the coup began, exactly how much mass mobilisation can be achieved amongst a population struggling to cope with economic crisis conditions and a good deal of disillusion with “democracy” as currently configured, remains to be seen. Minister Fachin’s list appears finally to have delivered to the Lava Jato investigators the result that they claimed to want, an opening to conduct an Italian-style purge of the entire political class and wholesale reform of public and political morality. But will this actually happen?

The existing executive and congress will remain in place while the Supreme Court undertakes its extended deliberations. The kinds of political reforms that have been floated so far are not encouraging from the point of view of deepening democracy and transparency. A proposal that has attracted considerable support in the congress is that of replacing individual candidates with votes for party lists. This could only strengthen the power of party machines and those who run them. Brazil’s endemic problems of personal corruption and use of dirty money for campaign finance, not to mention the buying of congressional support that caused the first scandal that damaged the reputation of the PT, the mensalão, are intimately related to the nature of political parties as machines for winning seats and distributing the spoils of office through coalition building. They are systemic problems, not matters of the venality of individual politicians.

The same can be said for the caixa 2, illegal campaign funding problem. The costs of putting propaganda on television and running televised campaigns inevitably drew the PT into the same game as rival parties, and there was little possibility of its own supporters, militants and affiliated organisations footing the bill. Crowd-funding is all very well as a democratic idea, but people struggling to put food on the table are hardly in a position to contribute. Under Brazilian social conditions, only allowing private individuals to make campaign donations strengthens the influence in politics of the super-rich. Making the tax payer meet the costs of funding election campaigns would make a political system that is already a burden, given the high salaries and generous perks enjoyed by elected politicians in Brazil, even more burdensome, and it would not do anything to change a system in which being a politician is a lucrative personal career opportunity into a system in which people only enter politics in a spirit of public service. Political reform needs to grasp the nettle of making acceptance of the duties of political representation somewhat more of a sacrifice without making it totally impossible for people who do not have high levels of income or savings from other activities to become politicians, thus leaving the field clear for more prosperous citizens who are not dependent on incomes from parliamentary or ministerial service.

The expectation of many commentators is that Minister Fachin’s cross-party list will cement public disillusion with the established political class and open spaces for “outsiders” untarnished with the “politician” label. But the issue is what kind of “outsider”.

One much touted name is that of the new mayor of São Paulo, João Doria, millionaire businessman and TV presenter. Salvador’s mayor, ACM Neto, currently a DEM, has been floated as a possible running mate and has inherited all his grandfather’s skills as a right-wing populist able to win votes on the urban periphery. Doria presented himself explicitly as an “administrator” not a “politician”, and he too managed to capture some votes from disillusioned former PT-voters in the urban periphery. But Doria is, in fact, closely linked to Geraldo Alckmin, and also an exponent of the spirit of privatisation and market-based solutions to social problems that the coup seeks to implant in a Brazil purged of the PT. Donald Trump has already shown us the power of an “anti-political” attack on the establishment, and government by the already rich does not seem to be a guarantee that successful candidates will not seek to make public office holding itself economically advantageous to themselves and their families. The boundary between public and private is already porous enough in Brazil. Another “outsider” is the profoundly controversial Jair Bolsonaro, but this potential far right candidate is an “outsider” in a very special sense, since he criticises “normal politics” as a former military man nostalgic for the dictatorship, and expresses homophobic, misogynist and racist views that are repugnant enough to hopefully make him unelectable at national level.

A BBC Brazil report ventured the suggestion that politicians linked to “churches” might also benefit from disillusionment with parties. But evangelicals are already a major force in the present congress. Although the evangelical lobby in congress is generally associated with socially conservative ideas, it is true that evangelical churches do come in different shapes and sizes and are very strong in the favelas of Rio and other metropolitan cities. Not all of them should be located on the socially conservative and intolerant end of the spectrum represented by some of this congress’s most notoriously right-wing deputies, such as Marco Feliciano. The Catholic church has lost a lot of ground to evangelical churches in Brazil, but still has influence, and its liberation theology orientated sectors have historically been strong allies of social movements aligned with left parties and supporters of indigenous rights. But the main pentecostalist churches are  strong propagators of individualistic self-help ideologies of taking responsibility for one’s own life and problems and of seeking greater personal economic prosperity as a life goal, ideas that clearly resonate strongly with neoliberal notions of market society and its moralities.  Furthermore, the business aspects of neo-pentecostalist churches such as the Universal Church of the Kingdom of God, the church of which Marcelo Crivella, the current mayor of Rio was once a bishop, are not above criticism given the ways in which extraction of money from poor people has enabled the church to invest in grandiose buildings and a major national TV channel. Crivella is now trying to dissociate himself from the Universal Church not only in order to reach out to a broader constituency in a furthering a political career that enjoyed a certain amount of support from Lula in the past, but also to dissociate himself from the more scandalous aspects of his church’s record. He, along with Rede’s Marina Silva, may prove the more acceptable face of evangelical politics from the point of view of people with more liberal social opinions, although he has sticking points, on abortion and same-sex marriage, for example. This is less likely to be the case with Marco Feliciano, of the Social Christian Party, who is also a successful businessman and author of best-selling self-help books and DVDs. His church is affiliated to the Assembly of God family of churches, and he was one of the few deputies who refused to vote in favour of ending the mandate of Eduardo Cunha, also an evangelical and now, as I noted earlier, serving time in prison for corruption. The politicians without foro privilegiado in Fachin’s list include the noted evangelical and former governor of the state of Rio de Janeiro, Anthony Garotinho. Overall, perhaps not much chance of moralisation here, then, but a lot of elective affinity with neoliberal values.

These “alternatives”, with the possible exception of Bolsonaro, who would have to be considered off the map if compared with the “modernised” ultra-right led by Marine Le Pen in France, therefore do not seem to be alternatives outside the system that the coup is designed to impose on Brazil. On the contrary, they could prove valuable vehicles for furthering the interests of a plutocratic elite that proposes to solve the crisis by negating the social advances won since Lula’s defeat of the PSDB, fragile though they have now proved as a real alternative to the neoliberal path that the Cardoso administration was following. Minister Fachin’s list has caused a certain amount of panic in the ranks of congress, but Michel Temer insists that he will press on with seeking congressional approval for the measures that he has promised to deliver. Even if the pension reform eventually has to be watered down, the coup has achieved a lot already. It can only be stopped by direct elections that produce a government that will move the country in a different direction and reverse the measures that have already been taken. Filling the prisons with politicians might seem an attractive outcome, but apart from the fact that this is unlikely to happen any time soon, if at all, in the case of the PMDB and PSDB politicians with foro privilegiado, it would not guarantee fundamental systemic reforms. We also need to think about whether likely alternatives to the existing political class would offer a real alternative that would rescue the country from social regression and growing inequality.

We should remember that the collapse of the established Italian political class led to nine years of Silvio Berlusconi. But the social outcome in Brazil could be far worse than it was for Italy. Despite the broadening of the field of targets of investigation across the party political field, a basic issue remains whether Lula will be stopped from trying to regain the presidency and if he is, whether the Brazilian left or a rejigged centre-left coalition could win an election without him. With or without Lula, we must also wait to see whether the Brazilian left is able to provide a more radical alternative this time round that would profoundly reform the country’s political institutions in a positive direction as well as offer sustainable solutions to Brazil’s still deepening economic problems. In the short term, Minister Fachin’s list may be broad enough to do the established left in party politics new damage as well, so the pitch is going to have to be convincing and it is going to have to be delivered as directly as possible to society rather than through the distorting mediation of the mainstream media that have been one of the pillars of the coup. Nevertheless, my ethnographic experience is that poor people do not care so much if politicians enrich themselves providing that they also benefit from the relationship and are treated with respect by those who represent them. This may prove the Achilles heel of a coup that is unlikely to deliver them continuing material improvements and certainly does not respect their value as citizens. Brazil remains a society in which the law is for my enemies, not my friends.