Judicial Control of Political Activities: Corruption, Competition, and Strategy

• In Event: Poster Session: State Politics and Policy & Law and Courts
  In Poster Session: Poster Session: Law and Courts

Abstract

Under what conditions do Courts control political activities? In countries that have faced big corruption scandals recently, it is not uncommon that parliamentarians face some sort of judicial control of their political activities or even happen to be removed from office. Although democracies usually set offices control mechanisms in the political arena, restrictions may also come from Courts. It requires rethinking the role of Courts, once the subject of control may no longer be just policies developed in political arenas, but also the political actors and offices themselves.
Recently, the Brazilian Supreme Court has been called to control several federal parliamentarians' mandates and has restricted some of their political activities. Searches and seizures in cabinets, restrictions on legislative activities, removals from office, and even arrests have occurred. It is not a trivial role for courts: these offices belong to Congressmen, who have the competence to retaliate the judicial branch. It may also change the dynamics among the Court and politicians, potentially influencing judicial behavior. These are the reasons why it demands new approaches and analytical attention.
In this paper, I aim to map which incentives and constraints influence judicial decisions on the control of parliamentarian mandates and to explain how they operate. For that, I first develop a conceptual typology of the judicial control of primary political activities: electoral competition and the exercise of mandates. It approaches the potential conditions and institutional previsions for its occurrence. This judicial role may affect political activities both directly, via removals from office or ineligibilities arising from convictions, and indirectly, by reducing its credibility towards the electorate.
In the second place, I employ mixed methods to study the Brazilian case in the current democratic period (1988-2022), evaluating the costs and incentives involved in the episodes of judicial control of mandates that took place in this meanwhile. To do that, I create an original dataset with all the prosecutions against federal parliamentarians decided by the Brazilian Supreme Court and triangulate evidence to trace political strategies and public opinion mobilizations that influenced decisions. The research combines different documentary sources: lawsuits information, media reports, and actors' statements and interviews.
I hypothesize that there is strategic judicial behavior concerning external actors – political power and public opinion –, permeated especially by interactions between the Supreme Court and members of Congress. As a result, I provide evidence that the uses of the judicial arena and corruption prosecutions by parties and politicians as an instrument of disputes for office reduced costs and provided opportunities for the expansion of judicial power in the subject. Additionally, the advancement of criminal prosecutions against parliamentarians was an incentive for judicial control, given the mass mobilization of public opinion against parliamentarians in these episodes. Among them, Mensalao and Lava Jato, one of the biggest corruption scandals in history, stand out.
The paper intends to contribute to conceptualizing a new dimension of Courts' social and political relevance, mapping its core elements and proposing relevant research questions for the field. It empirically advances to explain its occurrence in Brazil and point contributions from the case study to future comparative research.

Author

• Gabriela Armani, University of Sao Paulo