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Friday, May 20, 2016

Lord Acton tries the Samba; or, the Paradox of Brazil's Decentralized Government

We proud Americans might sometimes think we wrote the book  on checks and balances and federalism (or rather, think that we continue to write the book). But it turns out that the world's fifth-largest country beats the third-largest at its own game; Brazil out-federalizes the Federalists, big time.  After centuries of colonization, dictatorships, and violent oscillations between radical centralization its opposite, Brazil wrote a new constitution in 1988.  That constitutional scheme -- the one we now see playing out in Brazil's world-class political turmoil -- distributes power both within the federal government and between the federal, state, and municipal levels in fairly dramatic fashion.  They saw what concentrated power does, and they wanted nothing of it.

From an anti-corruption standpoint (that is, my standpoint) this raises a fascinating paradox.  Acton famously reminded us that the concentration of power tends toward corruption.  If we want to deter corruption, we distribute power.  Basic.  But no system is immune from corruption, and when violations occur, they of course must be prosecuted.  That prosecution must be of sufficient certainty, severity, and celerity (as they say).  But can that holy trinity be realized in a radically decentralized government?  That is, might the diffusion of power undermine general deterrence?  If so, we've got ourselves a paradox:  the very system of government that tends to prevent corruption will also struggle to punish it.  Decentralization may effectively deter corruption preemptively, but ineffectively post hoc.

And we see this very struggle now playing out in Brazil.  The acting president (replacing Dilma Rousseff, who has been temporarily removed pending her Senate impeachment trial) has suspended the negotiation of what Brazil calls leniency agreements (roughly equivalent of our deferred prosecution and non-prosecution agreements) with the construction companies implicated in the Petrobras scandal.  He wants to include more federal bodies in their negotiation.  Brazil's main anti-corruption agency had exclusively authority, but the acting president wants to bring in the auditing court (which first detected the accounting improprieties that lead to Dilma's impeachment) and, most importantly, the federal prosecutors (who in Brazil are independent of the executive branch, a kind of fourth branch of government).  In other words, he wants three independent federal bodies to coordinate settlements.  And this requires an act of Congress, which is now in turmoil due to the very same corruption investigation.  In the mean time, the negotiation of these agreements -- put another way, the prosecutions themselves -- are suspended, for who knows how long.  So basically, the diffusion of power in Brazil's government has created a prosecution stalemate.  The definition of celerity, this ain't.  

So does the image in your mind of Lord Acton doing the Samba seem just a bit awkward?  Well, that's exactly my point.

Posted by Andy Spalding on May 20, 2016 at 10:56 AM | Permalink


I am not so sure about your premise, Andy. Absolute power may corrupt absolutely, but centralized power is often far from absolute. And even enormous power may not be absolute, because it is often correspondingly difficult to employ.

In the history of the United States, local authorities have often exercised far more power over the lives of citizens than have far-off federal bureaucrats -- even though the latters' power may in some sense have been greater. Who held more power -- and who was more morally corrupt -- than southern sheriffs in the Jim Crow era?

Posted by: Steven Lubet | May 20, 2016 7:28:56 PM

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