Untangling the knots in politics: reformist hyperactivism in Latin America
For the past decades, the majority of countries in the region have distinguished themselves as being especially active in pushing for change of formal rules that oversee their electoral systems.
by Flavia Freidenberg, Lead Researcher at the Institute for Legal Research, Universidad Nacional Autónoma de México and visiting researcher at the CEPC.
Latin America has transformed into a wonderful laboratory for those of us studying Law or Political Science. For the past decades, the majority of countries in the region have distinguished themselves as being especially active in pushing for change of formal rules - legal and/or constitutional - that oversee their electoral systems. At the Observatory for Political Reform in Latin America, a joint project of the OAS’s Secretary for the Strengthening of Democracy and the Institute for Legal Research at the Universidad Nacional Autónoma de México, we have been counting reforms comparatively. We have explored the origins, motivations, contents, causes and effects of electoral reforms on the region’s political systems and we have identified a series of learnings, good practices and other practices that would need to be reexamined.
Unlike European countries that tend to be considerably conservative when it comes to their electoral systems, modifying the conditions under which one can access, sustain and/or exercise power in Latin America tends to be quite commonplace. Our research team has managed to register approximately 297 changes in 11 dimensions of the electoral systems in 19 countries since 1977 [see Latin American Electoral Reforms Database]. These changes lead to the assumption that political elites trust the capacity of formal regulations to determine actors’ behaviour. This idea is quite naïve since, as evidenced in law and comparative politics, there exists a strong distance between what the rule says (formal) and what really happens in the practice of politics. Even so, these elites insist on these reforms and have been quite successful - in some countries more than others - at untangling the knots of politics, and even at entangling them back.
This drive towards normative changes proves that elites expect something out of these reforms. No one would push for rule changing thinking they wouldn’t stand to benefit from it. Elites - of all ideologies - change the rules because they can and because they trust their ability to redesign political conditions (and the incentives hidden within the rules), abiding by the established mechanisms in the constitutional texts themselves to carry them out (when they have legislative majorities) and using this institutional tool because they think these changes can benefit them - not to relinquish or lose power - and, moreover, they perceive these changes offer certain legitimacy to the processes they endorse. Constantly manipulating the rules that establish how and who can compete, that set the electoral calendar or the way in which votes are counted, implies an opportunity to impact - and even disrupt - the functioning of democracy. This behaviour of strategic manipulation has favoured uncertainty in the rules, in the ways of conducting politics and even in the procedures, and yet a situation of certainty is a fundamental and necessary condition for the validity of a democratic political system.
Recent discussion on electoral reform in democratising countries has questioned many of the theoretical presumptions in studies from Europe and English-speaking countries. The classic understanding of electoral systems usually defines them as all those mechanisms that oversee the translation of votes into seats and only includes 5 key dimensions: the principle of representation, the electoral formula, the district, the vote structure and the electoral threshold. As opposed to this vision, a wider conceptualisation of the electoral system is recently being applied, including changes considered “minor” or “technical” as Kristof Jacobs and Monique Leyenaar’s works have highlighted. This explains why each change in a dimension considered as “key” for electoral regulations - legal and/or constitutional - is understood as “electoral reform” at a given point in any country.
Although reforms must tend to the modifications within the five dimensions Dieter Nohlen warned about as part of the “heart of the electoral systems”, other technical dimensions must also be considered that could turn out to be the ones to transform incentives and resources political actors count upon and affect the conditions of competition and political representation. For example, reforms to the gender electoral regime carried out in 17 countries since 1991, by means of around 45 modifications to the way candidacies to popular representation positions are registered, observing affirmative action measures and/or the gender parity principle, have been crucial in the recent changes to the political representation of women the region has experienced [see Gender Electoral Regime Database in Latin America].
The review of reformist processes in Latin America has allowed for the identification of at least seven agendas of institutional change, some that even have contradictory effects, relating to: a) a greater inclusiveness of the presidential election rule; b) a greater personalisation of presidential power; c) a greater proportionality and inclusion in the legislative seat election formula; d) a greater personalisation of the link between voters and parties and some decline in the parties’ capacity to control candidacies (due to open lists, personalised or crossed-over vote); e) a greater descriptive representation of women and other underrepresented groups in political institutions; f) a widening of political rights of the citizenry (out-of-country voting, voting mechanisms for citizens with disabilities, early voting, among others) and g) a greater State intervention in party funding and democratisation processes of candidate selection processes.
Even though differences exist among countries regarding the number of approved reforms, the majority of them have been the result of an intense bid between political elites to gain control over the rules of the game, leave their imprint on the party’s vision - and even on party members - of how power should be distributed and/or maximise the benefits the implementation of new rules may have on their power expectations. Oftentimes elites perceive competitive disadvantages, they dislike election results and/or they conclude the electoral design does not work to their advantage and, then, sponsor reforms. On some occasions reforms are used as part of a discourse strategy - both in government and the opposition - to alter the status quo, even menacingly, with very little chances of being implemented, seeing as they do not have enough backing to pass them within the legislative arena. Other times (less frequently so), they are the result of very precise diagnoses that generate wide consensuses through multi-party agreements and/or inclusive pacts, that in turn produce transformations leading to the widening of rights, an improvement of conditions for peaceful coexistence and the competitiveness of political actors, and the democratisation of the institutions and/or an increase in the system’s legitimacy (such as the Guatemalan and Salvadoran’s 1990 Peace Accords which incorporated changes to electoral regulations).
The imposition of reforms by a governing coalition constitutes a recent phenomenon. Changes have been approved without the voicing of opposing minorities in some predominant and/or quasi hegemonic party systems. These rely on charismatic leaderships and are supported by significant legislative majorities to pass reform bills without negotiating with other parties. For example, Mexico’s current electoral reform bill (the so-called “Plan-B”) has not been the product of plural and reasoned deliberation. Rather, if approved, it is very likely to result in a regression of the country’s process of democratisation. This is why cases exist where reformist drives stem from a leader or a governing coalition’s wishes, convinced of the need to consolidate their political projects in the rules of the game but that, in practice, seem more like opportunities to limit or restrict the plural dynamic of competition within the party system. More so, these reformist drives are often legitimised by citizens who advocate for those who push forward with these reforms, even when they involve disloyal ideas for liberal democracy.
This reformist anxiety illustrates that legal and constitutional rules matter. In those recently hyperactive countries (such as Ecuador, Peru, Mexico or Dominican Republic), the use of reforms as political instruments has become evident. For example, in Ecuador, the rules that govern how legislative seats are assigned have been modified more than seven times, through the approval of methods that directly affected the probability of electoral success of those that were pushing for the reform. In some countries more than in others, especially where this reformist hyperactivity exists, reform rotation has not had a positive impact necessarily, as many of them were mistaken in their diagnosis, endorsed ill-fated ideas or did not obtain the expected results (at least those they claimed they would achieve within their legitimacy-seeking discourse).
The processes of rule change have been fundamentally elite-driven. The absence of public debate on rule changes has remained a constant. This is about elite practice rather than critical deliberation of public opinion. Citizens have rarely been consulted on reforms. In some instances, such as Ecuador or Chile, certain public consultation mechanisms that involve changes to the electoral systems have been applied, but very rarely have people actively participated in the different stages of the reform process. Even when as a general rule some form of “expert” participation exists, these diagnoses - and the proposals for solutions to the outlined problems - do not work as truthful exchanges of ideas, weighing of options and spaces for public deliberation. Although open parliaments exist (such as recently in Mexico with the electoral reform), criticisms or deliberation results on what is finally presented as a legal proposal for reform are hardly taken into consideration.
This is the reason citizen control over processes of reform needs to intensify. A need to regulate and monitor the timeframes for when and how reforms can be brought forward exists (as explicitly underlined in the Panamanian and/or Guatemalan laws), as well as to generate civic education strategies to explain the different proposals and encourage greater critical thinking on the advantages and disadvantages of each and every one of the reforms. All of these should become concrete demands to be incorporated in citizen, media and academia evaluations on the way the elites, over and over, change the rules of the game in the region’s democracies.
How to cite:
Freidenberg, Flavia (9 de febrero de 2023). Untangling the knots in politics: reformist hyperactivism in Latin America. Blog del CEPC https://www.cepc.gob.es/blog/desenredando-los-nudos-de-la-politica-el-hiperactivismo-reformista-en-america-latina
Download the dataset Las reformas electorales en América Latina (1977-2021)