As I’ve argued since the beginning of the year, the Lava Jato investigation is one of two things: either a limited initiative that stops after ensnaring its primary targets, or a thoroughgoing campaign-cum-crusade that ends up eviscerating the whole political class. It’s hard to decide which would be preferable. The one would be, effectively, a highly partisan manoeuvre to deligitimise the Workers Party (PT), and by extension the left as a whole. The other would create a vacuum similar to Italy in 1994 and would result in Berlusconism – or worse.
At least since Dilma’s impeachment, it has looked to many that the former was in operation. Already Lula’s arrest without charge back in March 2016 raised the hackles of many for privileging spectacle over due process, and brought to the fore pre-existing doubts about the neutrality of the judges. A few weeks ago the conservative America’s Quarterly entered the fray with a widely shared and discussed article by its editor Brian Winter, asking, ‘tell me how this ends‘:
Will the case result in a substantial long-term improvement in Brazilian justice and institutions, as its supporters hope? Or will it fizzle out like the “Clean Hands” investigation in Italy of the 1990s, which resulted in more than 1,000 arrests but little decline in systemic corruption over time?
The extent of its follow-through is intimately tied up with the question of the investigation’s politicisation. If it stops now, it looks rather partisan. In March the distinguished legal scholar Boaventura da Sousa Santos strongly criticised Lava Jato:
Blatantly illegal and unconstitutional judicial measures, a crassly selective persecutory zeal, an aberrant promiscuity in which media outlets are at the service of the conservative political elites, and a seemingly anarchic judicial hyper-activism
Only in the space of the past month we have seen preventative arrests of two former finance ministers – Antonio Palocci and Guido Mantega – in separate incidents, the latter carried out in a hospital cancer ward as his wife was receiving treatment; investigator Dallagnol’s absurdly inflated charges against Lula; and then indication from the Federal Police that they would not be seeking any more plea bargains – key to Lava Jato’s progress from the start. Most problematically, this seems to have been urged by the Temer government itself, with a view to protecting PMDB politicians named by Oderbrecht, one of the construction companies at the heart of the Petrolão scandal.
So has it become politicised? Winter again:
Hell yes [… ] But out of necessity, rather than design. Indeed, I’d argue that the politicization of the case is exactly what has allowed it to progress this far without being shut down by its enemies.
Judicial proceedings should be politically independent. How is such politicisation justifiable? Winter continues:
[The prosecutors] bet – correctly, I think – that a robotic, faceless, by-the-book recitation of charges and sentences was not going to accomplish [its objectives] alone. To build a sufficiently high firewall, they’d have to play the game of public relations – which meant talking to journalists, speaking at conferences and setting up a user-friendly website about the case – with the ultimate goal of convincing Brazilians that the Car Wash probe, if allowed to do its job without interference, would lead to a less corrupt, more fair Brazil.
This all has a certain logic. Perhaps Lava Jato would never have got off the ground without public – and above all media – pressure. Taking this at face value, then, one would wish to see the job done and all those culpable, or at least the ringleaders, brought to justice. One would not want the judiciary to be compromised by appearing partisan in its targeting of PT, especially given evidence of wrongdoing across the spectrum. But apparently, Lava Jato cannot carry on much longer. According to Winter:
Once you start to play the political game, once you step on that field, a kind of countdown clock starts to go tick tick tick. Because by moving beyond pure jurisprudence, and including public relations in your focus, you become vulnerable to the inevitable ebbs and flows of public opinion.
As ‘public opinion’ (by which read elite opinion, mediated by the press and TV) seems to have had its fill, it is time for Lava Jato to wrap up. Italy’s Mani Pulite, on which Lava Jato was consciously modelled, was held to have sprawled, carrying on too long, eventually dissipating, and leaving much corruption intact. Already in May, as Dilma’s impeachment for unrelated ‘crimes’ was looking increasingly likely, Lava Jato seemed to be drawing to a close.
Why not carry on? One of the Lava Jato team claimed they “probably could put close to 100 percent of Congress in jail.” Brian Winter argues, consequently, that “in the real world, they know this is more than the system would bear.” Fine – that would result in the second concern I mentioned above. But is that fair? Winter’s answer?
No, it’s not. But it’s not even a political tactic – it’s a classic investigative one. It may also be the strategy that gives Car Wash the best odds of leaving a strong, intact legacy.
There is a deep perversity here. It is as follows: Mani Pulite is held to have gone on too long and dissipated. At the same time we know it exploded the party system and led to the end of the First Republic. It also failed to ‘end’ corruption. Consequently, Lava Jato is to stop early to avoid the same errors, but leave the system intact… but at the cost of delegitimising one party alone, while also comprising the judiciary’s commitment to order, independence, serenity and restraint. And also not ending corruption, thus leaving a prejudicial ‘legacy’.
Seems rather like the worst of both worlds.
You gotta keep ’em separated
Of course, it would be wrong to expect the judiciary to carry out the job of politics. The Brazilian party system is rotten and in need of serious democratising reform. That is at the root of a lot of corruption. At the same time, it is mistaken to believe one can ‘end’ corruption. Even the cleanest political systems in the world are corrupt, and often appear clean because their ‘corruption’ is legalised. This deserves further explanation.
The concept of corruption in the modern world is premised on the separation of public and private interests. Private interests in market society are not pathological. But the intrusion of private interests into the public realm of state and government is. This is called corruption. Yet in market society, it is impossible to create and protect a disinterested public realm, driven purely by republican virtue. Indeed, many of the business interests who cheerled Lava Jato would not tolerate such a set-up. Banning all forms of lobbying – if such a thing were possible – would be shrilly denounced. And who is to say business interests should not have a voice, alongside those of organised labour, NGOs, and other civil society organisations?
So it is perhaps right that Lava Jato should have aimed to be a discreet investigation, riding a wave of public intolerance for corruption until it could no longer. Strike while the iron is hot, right? But given the impossibility of protecting public interest from contamination by the private, what were the anti-corruption zealots – beyond the members of the police and judiciary involved – really hoping for?
It is important to understand that ‘anti-corruption’ has largely been superseded by the concept of transparency, led by the work of Transparency International and the IFIs. This concept signifies predictability, lower transaction costs for capital, and the elimination of all informality in regulation and rules. ‘Transparency‘ is hence not the protection of the public realm from private interests but the protection of specific private interests (especially international capital) from rent-seeking by public servants or other unpredictability related to clientelistic networks. One wouldn’t want to defend clientelism, but it should be clear that ‘transparency’ is intimately associated with neoliberal globalisation and the political priority that states be open to international capital.
In and of itself, one may still conclude that a partial Lava Jato is better than no Lava Jato; at least some of the responsible for the Petrolão are behind bars. It does send a powerful message about impunity… for some.
Italy, in toto. And so Brazil too.
Let’s detour to the hugely instructive Italian crisis of 1992-4. This crisis was not reducible to the impact of Tangentopoli and Mani Pulite. The crisis happened on several planes and lacked a single ‘key’ cause. The overarching international context was the end of the Cold War and the impact this had on the Italian Communist Party – and the end of anti-communism as a cohering strategy amongst the bourgeois parties. Equally important was Italy’s desire to meet the Maastricht criteria for European monetary union. As Paul Ginsborg explains in his excellent book on Italian history 1980-2001, there were also several national causes. On the institutional plane, we find the inefficiency of the Italian state, the degradation of party government, widespread corruption, and elite impunity. Additionally there were social actors which came to bear: a minority within the state, especially in the judiciary, with a sense of morality and fealty to the Republic, who had had enough; popular disgust with corruption and the failure of effective government; and finally the Mafia’s power and destabilising influence.
Enough of this should sound familiar to Brazilian ears. But let us unpick it further. The international context is vastly different, of course. There is neither a Communist threat, nor its defeat and the consequent end of elite consensus, to explain the Brazilian situation (as I explained here, if it is a ‘coup’, it was not to depose a left-wing regime). In the opening of the economy we do find a contextual similarity. In Italy, it was regional integration, while in Brazil there may be a confluence of the transparency agenda with international economic interests. Then domestically, leaving aside the question of the Mafia, the Brazilian crisis looks remarkably similar.
One additional conjunctural factor about Brazil must be noted, however. The raised expectations caused by a decade of economic growth, unmatched by improvements in public services or government. This is what exploded in June 2013. This inchoate, party-less wave of discontent was a crucial factor in the making of the crisis.
Thus when Lava Jato began rounding up the culprits behind one of the largest corruption schemes ever discovered, many rejoiced. Ginsborg noted the following about Mani Pulite:
A festive air pervaded many parts of Italy, as always happens when the habitual ordering of a society is suddenly brought into question.
But as in Italy, so in Brazil: behind the celebration were divergent motivations, reflecting differences of class and culture. For your average worker, seeing businessmen and politicians led away in handcuffs might look like the end of upper-class impunity and – finally! – the impartial application of the laws of the land. For the small businessman, it might signal the end of the use of political influence – denied to him, but available to the big businessman – for private gain. For the big bourgeois, it represents the downfall of an inconvenient political party and the ideology of ‘statism’.
But the celebration was less than universal in Brazil, because there was a pattern to the victimisation, and it seemed to only be helping the Right. Here is a crucial difference between the Italian and Brazilian investigations. I’ll call Boaventura de Sousa Santos to the witness stand again:
On the one hand, the Italian magistrates always kept a scrupulous respect for the criminal proceedings and, at most, did nothing but apply rules that had been strategically ignored by a judicial system that was not only conformist but also complicit with the privileges of the ruling political elites in Italy’s post-war politics. On the other hand, they sought to apply the same unvarying zeal in investigating the crimes committed by the leaders of the various governing political parties. They assumed a politically neutral position precisely to defend the judicial system from the attacks it would surely be subjected to by those targeted by their investigations and prosecutions. This is the very antithesis of the sad spectacle currently offered to the world by a sector of the Brazilian judicial system.
Moro may have self-consciously modelled his investigation on Mani Pulite, and took advantage of similar contexts. But if one articulates Lava Jato’s politicisation to the other factors which led to Dilma’s ouster, it all begins to look awfully conspiratorial. Indeed, since I posted my piece on whether it was a ‘coup’, Temer was caught on camera stating that Dilma was deposed because she failed to adopt the PMDB’s neoliberal ‘Bridge to the Future‘ plan. His government, which has scant legitimacy, has since tried to pass a constitutional amendment, PEC 241, which would freeze public spending for twenty years.
The crisis is real
It would be easy, then, to string the factors together – protest channelled rightwards by the media, a partisan Lava Jato investigation, the dodgy removal of the President, the implementation of neoliberal reforms – and conclude it was all one big conspiracy. But the crisis is real. And not just in its ‘objective’ economic dimension (though this too has been affected by an investment strike and the freezing of construction due to Lava Jato itself).
Popular frustration with a dysfunctional political system, an ineffective and extremely bureaucratic state, and poor public services is a fact, and legitimate. The severe recession, corruption revelations and street protests are a concatenation that led to a crisis of legitimacy. However much powerful interests have been able to swing matters in their favour, the Brazilian people have not been mere bystanders.
Here, another Italian parallel presents itself to us. In Italy, popular disgust at the political class was found amongst two sections of the broad middle class, what we might call – again following Ginsborg – the entrepreneurial and civic middle classes. The former bristled at high taxes and bureaucracy, and contrasted its own putative dynamism with a lethargic state. The latter held to republican virtues and sought to defend the public realm from its degradation by private interests. Anger would be directed at the coexistence of private wealth with public squalor. Blame for the situation, then, rested at the feet of the oligarchy, corrupting politics. For the entrepreneurial segment, culpability lay instead with politicians, whose corruption harmed those trying to get by. These social groups are present, mutatis mutandis, in Brazil today.
Just as the these fractions have divergent world-views and villains, so their political responses to the Brazil’s political denouement differ. The entrepreneurial middle class wishes to see reform and liberalisation. The civic middle class would also like reform, but without liberalisation. Both would like a ‘fairer’ Brazil in which ‘things work’.
What is emerging, however, is a situation of no reform and a lot of liberalisation. Those with most agency in the crisis will also be the big winners: the ‘external bourgeoisie’ (which political-economist Alfredo Saad-Filho defines as the owners of financial capital, transnational and internationally-integrated manufacturing capital, and the media, to be distinguished from the national bourgeoisie of domestic manufacturing and agriculture). The jewels in the crown for this narrow section of the population are the sell-off of rights to the pre-salt oil fields, the passing of PEC241, and the arrest and loss of political rights for Lula, probably the PT’s only chance in 2018.
This scenario explains why a section of the left – in part constituted by the ‘civic middle class’, and which has supported PT – have turned on the entrepreneurial middle class with fury. To the former, the latter were mere ‘useful idiots’ of the crisis. They may have succeeded in getting rid of PT, but they’ll have rid themselves of their social rights at the same time. “Just you wait”, they say, “until the cuts hit you”. Indeed, let us see.
For me, the left has failed – demonstrably – to make any hay from the crisis. The entrepreneurial middle class (composed of small business owners, the lesser traditional professions, and better-off workers) is still there to be won, and the spite is unhelpful. The left cannot be seen to be defending Brazilian business-as-usual. That’s best left to those who have most gained from the system. Thoroughgoing reform – but not the neoliberal recipe – is required, both to make the state less of a burden and to democratise society. In this, workers and the lower middle class have a common interest.
Unfortunately, as I’ve discussed before, the political victim of the crisis is not just PT (for which we should feel little pity – they made their bed…) but politics itself. In Italy, where the old parties were eviscerated, they suffered Berlusconi. As well as neoliberal reforms, Berlusconi also pioneered a style of politics, a unity of technocracy and populism, which emphasised practical business know-how instead of politicking, combined with astute use of the mass media – at the time referred to as ‘videocracy’. It was also a unity of old and new: traditional clientelism, but allied to a sense of modern entrepreneurialism, unconcerned with the fustiness of the public sector and comfortable old arrangements.
Perhaps in Brazil we are witnessing similar. São Paulo, the place with the most ‘modern’ politics in the country, just elected wealthy businessman João Dória Jr as mayor – a man who made every effort to present himself as a non-politician, but who has cultivated close relations with the PSDB for a long time and was rightly described by The Intercept “unscrupulous, superficial and sly”. Sound familiar?
Hopefully that is not the pattern of politics for the foreseeable. The crisis after all is not over; it is merely in a new phase. For now, it is unquestionable that Lava Jato has been a partisan crusade and not the political holocaust I feared. But anti-politics remains the major force. The saving grace is that while anti-politics can manifest as retreat and indifference, it can also be angry and engaged. That at least is a better platform for democracy – and democratisation.