STF judged amendments at the worst moment, says prosecutor – 04/14/2023 – Power

The judgment by the STF (Federal Supreme Court) to end the rapporteur’s amendments occurred in the worst possible time window, in the evaluation of Élida Graziane, professor at FGV-SP and prosecutor of the Public Prosecutor’s Office for Accounts of the State of São Paulo.

“The Supreme Court did not have the political intelligence to guide the moment when the appropriate corrections could be made”, said Graziane in an interview with Sheet.

For her, President Luiz Inácio Lula da Silva (PT), who had not yet taken office, had no power to negotiate with Congress, which managed to allocate R$ 9.8 billion from the extinct rapporteur’s amendments –used as a bargaining chip by Jair Bolsonaro (PL) – at the petista’s ministries box.

As shown to Sheetthe Planalto Palace decided that the new way of directing money for congressmen to irrigate works and projects in their electoral bases will simulate the parliamentary amendments.

According to the attorney, it is necessary to improve the rules for these transfers, including those that are not officially stamped as amendments.

She assesses that, without the STF and the TCU (Tribunal de Contas da União), the government will not be able to change the “trajectory of balconized allocation, opaque and little adherent to the planning of public policies”.

What is, in your opinion, the balance after the judgment of the STF? The discussion would have had a different effect if the Supreme Court had ruled in 2023 instead of doing so at the end of 2022. It was naive to think that the Executive, which had not yet taken office, would be able to make a budgetary power equation. Failed. There are R$ 10 billion that continue to obey the logic of the RP9 [emenda de relator]although within the RP2 [orçamento próprio de ministérios]. The Supreme Court did not have the political intelligence to guide when the appropriate corrections could be made.

What was the result of this? This allowed Congress to re-accommodate the space. The parliamentarians managed to create a system of communicating vessels, because the Supreme ruled the matter at a time when it did not have a leadership in the Executive, and the president-elect himself still did not have a pen to make any definition. Lula, although he could even have vetoed accommodation within the budget bill, did not have the strength to do so.

If in your opinion the timing of the trial was wrong, what would have been ideal? In 2023 even. Because then, yes, the Executive Power, therefore, at the beginning of the term, stronger, would have had a different dialogue equation with Congress. The time window that the Supreme Court chose to decide [sobre as emendas de relator] it was the worst possible. It was a government [Bolsonaro] who was leaving, without having been re-elected, therefore highly uninterested. The bonus of having said that it was unconditional, that it was flawed, that there was no planning, that there was no adequate transparency, ended up being lost, because it was at the end of the previous term and the current government, in a way, ended up having the embarrassment of accept an arrangement that has been made.

What would be different with the trial in 2023? The discussion could be done in the LDO [Lei de Diretrizes Orçamentárias], which is the proper place, rather than letting MPs create a rule. As it is, it’s always “little flour, my mush first”, and buying robotics kits for schools that don’t even have clean water.

Was the Supreme Court’s decision being disregarded? I cannot say categorically that it is being completely breached, but it is a risk of non-compliance because of the way the budget law was changed at last year’s dark. [Ao realocar a verba para os ministérios] continues to serve outside the transparency portals, and cannot find out who is the godfather of the allocation and also due to the lack of planning of public policies.

What is your assessment of the Lula government treating money that is in the ministries’ treasury as amendments? It is the keynote of the relationship with Congress that the government release funds being able to discriminate between parliamentarians from the support base and opposition parliamentarians. Rather than being a strictly personal allocation subjective to the parliamentarian’s choice, the government would have to search within a project bank already conceived in the planning. There would have been conditions to improve the rite, if the Supreme Court had scheduled this debate for February 2023.

The Lula government, although intending to maintain some bargaining tool, does not want to run the same risk of denunciations as the previous government. It is also a very high political cost to have several bombs go off regarding these parliamentary amendments. So, improving the execution of these amendments would be in the interest of the Executive itself.

Folha published an article showing that Lula wants to shield himself from possible corruption involving these transfers. That. Even to distribute the cost of accountability. Because it is very easy for the parliamentarian to have the bonus and not have to deal with the consequences afterwards. The parliamentarian wants to have all the right to allocate resources, to almost promote budget execution, but he is not accountable.

Will the Lula government be able, at some point, to regain the power that the Executive had in the Budget before Congress was strengthened? As Congress has learned that it can directly release discretionary funds in the Budget, the Executive alone cannot oppose Congress. He needs the control bodies, especially the Federal Supreme Court and the Federal Court of Accounts, to make the necessary constraints to improve the methodology for implementing parliamentary amendments. Without this, we will maintain this trajectory of balcon allocation, opaque and little adherent to the planning of public policies.

What would these constraints be? Decisions about transparency and better use of public resources? That, and compliance with the planning and prohibiting the possibility of choosing the CNPJ. It’s no use for the Supreme to think that after ruling and judging it is resolved. Congress rearranged itself. And the Executive does not have the strength alone to correct the distortions.

What needs to be done? We need to improve the legal regime for budget allocations made by parliamentarians, not just amendments anymore. So you include amendments directly, but also these implicit indications in RP2 [orçamento próprio dos ministérios]. Parliamentarians tried to stick to the strategy that was so successful for them. It was a backstage seam of what was decided in relation to the rapporteur’s amendments.

In recent years, we have seen weakened Executives and a Congress that has become accustomed to having the power to allocate resources in the Budget, in an unplanned way. And the most serious: Congress can even choose the CNPJ of the legal companies benefited by amendments. This increased the risk of physiological capture of public resources.

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X-RAY | Élida Graziane, 44

Professor of public administration at EAESP-FGV (Getúlio Vargas Foundation) and attorney for the Public Ministry of Accounts of the State of São Paulo, holder of the 2nd Office of Accounts. She specializes in the field of law and public finance.