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(DRAFT PAPER-PLEASE DO NOT CITE OR CIRCULATE WITHOUT THE AUTHOR´S PERMISSION)

Who controls the bureaucracy?

The legislative control of the bureaucracy in Argentina

Tomás Bieda

CONICET-Universidad Torcuato Di Tella

tomasbieda@yahoo.com

Paper presented at the XXIInd IPSA World Congress of Political Science

July 8 to 12, 2012

Madrid, Spain

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Who controls the bureaucracy?

The legislative control of the bureaucracy in Argentina

Tomás Bieda1

Abstract: This paper studies the relationship between the National Legislature and the national bureaucracy in Argentina. More specifically, the political ways in which the former should control the latter, ensuring the validity of the law statements. To this end, I study two special Committees of the National Legislature (“Comisiones Especiales de Seguimiento”): the Hydro-Energetic and the Intelligence. Taking this two cases, I argument that there are structural conditions within the Legislative branch that favors or discourages the political-legislative control of the bureaucracy.

“Experience teaches that the cue to optimize

and have an efficient bureaucracy,

is a severe discipline and control”

Max Weber

The Argentinean Constitution establishes in its 85 article that “the external control of the national public sector regarding economic, financial and operative matters will be an attribution of the Legislative Branch” (Argentinean National Constitution, 1994). But, does this actually exist? Is there a political control of the bureaucracy in Argentina? This article seeks to understand under which conditions the Legislative Brand (LB) controls the bureaucracy, taking into account that the latter should not avoid any sort of accountability. Thus, we attempt to study concrete and real monitor mechanisms, assuming the LB as one of the most important external actors in charge of the bureaucracy control. Therefore, does it do it? How does it control the bureaucracy?

I search if the LB holds bureaucracy accountable, controlling its performance, and sanctioning the public servants for faults and deviations during the law implementation. (Behn 2001, 3). Hence, I state there are some legislative structural conditions that tend to favor or discourage the political control of the bureaucracy itself2.

We know too little about the political-legislative control of the bureaucracy in the Argentinean case. The automatic response will be because such phenomenon does not exist at all: there is no control of the bureaucracy in Argentina. However there were fine attempts to understand this reality. Some authors state that the political control of the bureaucracy in Argentina is almost insignificant because it was design like that. This is, the LB still holds a “nineteen century conception” that puts it as an external actor, far-off the real implementation of the public police, and with an “after match” formal scrutinize task (not substantial nor technical). The LB control task finds a structural limitation. (Ferraro 2006, 240-243). Other authors states that the LB control hardly ever

1 I will like to thank the comments and support of Ana María Mustapic, Carlos Gervasoni, Peter Siavelis,

Valeria Palanza, Agustín Ferraro, Fátima Iribarne and Facundo Salles Kobilanski. 2 This article does not seek to study the political actor intentions. It only focuses in structural conditions.

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happens because those who controls the political careers (party leaders) does not find an interest in controlling. As a result, Legislators do not find the control as a “profitable” task. (Palanza 2006, 54-55).

This article strives to deep in the political-legislative control of the bureaucracy for Argentina, concentrating in some LB structural conditions. It is organize as follows: the next section will establish core concepts. Then, it reviews different perspectives about the political control of the bureaucracy. Afterward, it presents the methodology. After that, in the case section, I present the data of the two Legislative Commissions. Finally, I conclude suggesting possible future lines of analysis.

Theoretical Framework

Bureaucracy as a political actor

“A public policy is what actually happens,

and not what the law says.”

Guy Peters

The social and modern state complexity requires the use of a bureaucratic machinery and organization for governing (Huber y Shipan 2002, 18). Hence, there is a servant career system, with technical crews, specialized knowledge, and a meritocratic organization (Méndez 1995, 35). However, this does not imply an apolitical body of administration: expertise does not guarantee a free politic environment. On the contrary, bureaucrats are always involved in politics, since the implementation of a policy affects the meanings of it formulation: policies creates politics. So, the bureaucracy is a political actor. And it represents a key and a powerful one, because it has fundamental advantages: a specific theoretical knowledge and a “know how” of the real implementation mechanisms of a given public policy (Ogul y Rockman 1990, 7). “…Bureaucracy has the information and the technical knowledge that the Governments need for the formulation of its policies…” (Peters 1995, 342).

Then, the risk is the growing of office ideologies. These are the ideas that a certain bureaucracy has –as a body- about public policies. The risk yields on the potential deviation from the law statements. Hence, these deviations could arise due to shirking or a slippage process (McCubbins 1985, 724). In the first case, there is a conflict between the bureaucracy and the law, as the former tries to follow its own interests and beliefs through a certain type of public policy. The second case does not refer to an interest controversy, but an implementation problem: the bureaucrats could not get the perfect public policy for a specific law. So, it appears as a “technological” problem (McCubbins 1985, 724).

The core political problem is how to guarantee that the democratic decisions (reflected on laws) will be respect during the implementation stage. A possible answer yields in the political control, and the development of a “responsible”

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bureaucracy” (Behn 2001): the political-legislative control is an institutional device for the respect of the popular/democratic sovereignty3.

Legislative Branch as a political oversight actor

“The asymmetric information that the bureaucracy has

generates a huge problem for the politicians.

They have to use their authority to solve it”

Terry Moe

The control of the bureaucracy is a substantial political problem. It refers to democracy´s quality, and in the end shows who is the true leader in the policy making process. Namely, which criterions turn out to be valued during the law implementation stage: the one reflected on the law, or the one that respond to the bureaucracy interests.

I define the political-legislative control of the bureaucracy as a deliberately monitoring and sanction act taken by Legislators over the acts of the bureaucrats. One way of classifying it is ex post o ex ante (Ogul, 1976). The difference refers to the law´s implementation (before or after it). The ex ante control is a law statues management: controlling who implements the law by affecting its discretion. There is a tension between specific and prescriptive statues (that constrain bureaucrat actions) and others vague and ambiguous (allowing freer actions)4.

By contrast, an ex post control mechanism, is one that monitor bureaucrat actions once the law has been sanctioned, through supervising and penalty measures (McCubbins 1985, 728). It can be police patrol or fire alarm (McCubbins and Schwartz 1984, 166). The former implies a centralized and a direct control, always on, active and guided by the law statements. On the contrary, a fire alarm control mechanism is decentralized, less active and indirect, and only set in motion by citizens or interest groups whenever they perceive an irregularity in a public policy execution (McCubbins and Schwartz 1984, 166). In the Argentinean case, the ex post control mechanisms are: written reports requirements, cabinet interpellations (with the possibility of removing them from office), political trials, monthly visit of the chief of the cabinet of Ministers (“jefe de gabinete de ministros”), citation to public servants or any particular to the Committees meetings, budget control, and the creation of special monitoring Committees (“Comisiones Especiales de Seguimiento”) (Palanza 2006, 47).

Theoretical Perspectives

I distinguish three relevant theoretical perspectives regarding political control of the bureaucracy: the theory of delegation (McCubbins y Kiwiet, 1991 y

3 It is interesting to advert about a potential tension that could arise between efficiency and democracy.

This is, aiming to efficiency and fast-problem-solving administration could also mean to skip some democratic barriers. In the same way, a crystal clear Government (a “democratic” one) generally implies as well a slow and multi-checks decision making process. 4 Literature stands that Legislators usually use vague status: a) allowing a reality adjustment; or b)

avoiding heavy decisions (blame avoidance logic)

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McCubbins 1985), the theories of interests distribution (Wood y Waterman 1991) and the American Congress literature (Aberbach, 1990, Huber y Shipan, 2002 y Mayhew 1974). Most of the literature assumes the political control as a given, just focusing on its forms. On the contrary, I will not take it as a given factor, addressing the conditions that affect the existence of control in the first place.

The theory of delegation searches for the origin of the political control. For that reason, it develops a principal-agent model (McCubbins and Kiewiet 1991). The principal is the one who holds the authority and delegates functions to the agent to perform a particular task. This delegation is view as a method to increase the political process efficiency. These authors base their model on the premise of the inevitability of the delegation because of the complexity of the state apparatus. “We find it inconceivable that congressional parties or any other large organization could achieve their collective aims without engaging in prodigious amounts of delegation” (McCubbins y Kiewiet 1991, 37).

In their model, the LB is the principal and the bureaucracy one of the possible agents5 (McCubbins and Kiewiet 1991 9-12). Thus, the delegating act is a way to increase efficiency, and not an abdication, because the principal still holds resources to continue governing the process once delegate. The first one is the contract design, and refers to the existence of a contract between principal and agent, which distributes rewards and sanctions, punishing and gratifying the actions of bureaucrats. The second is the screening and selection mechanisms, and it consist on a detailed selection process (selection of agents) through which the principal chooses "obedient" personnel, setting the stage towards a future obedience and some sort of socialization of the information. Third, the monitoring and reporting requirements, which establish explicit procedures and techniques to inform the principal (e.g. progress reports, hearings, investigations, etc.). Finally, institutional checks, which set up institutions, such as the veto power, that can contain and correct "wrong" agent actions (McCubbins and Kiewiet 1991 27-34).

This theory base the control on a free flow of information. However, the model becomes inadequate once confronted with concrete realities (such as Latin America), far from the ideal, in which the circulation of information is politically blocked. So, it loses its explanatory power, not allowing an understanding of the political control in these situations –without setting a prescriptive view. Furthermore, as indicated by Ferraro (2006), the Argentinean legislature was not designed as a core actor in the public policy implementing process (Ferraro 2006, 240). This way, the LB does not have any capability to interfere, for example, during the first two resources listed above (contract design and selection mechanisms).

The theories of interest distribution study the political modes of the control, understanding it as a pact between different interests. It argues that legislators control because they long to serve (resources) to their constituencies and because they need to get electoral returns (Arnold 1979, 27). So, there seems to be a "catch of the control institution": a triangular alliance between administrative agencies, parliamentary committees and interest groups is 5 They also refers to the delegation to the President and to the Legislative Committees.

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formed, manipulating the whole process. Thus, the control institution is reduced to a mere distributive instance, responding to interests besides the law or a public policy “theory”. Thus, the "real" control lies on the “triangle communion”. Eventually, they will "control" just to reassure their interests and not longing respect for the law (instances that do not necessarily coincide). Indeed, this analytical framework denies any kind of formal control, and only focus on interests and negotiation instances. There is no legislative oversight of bureaucratic behavior, since - as we said - this “control” arises from a previous political and economic arrangement.

But the actual complexity of politics and the diversity of actors involved nowadays make it virtually impossible to have spaces without supervision (Epstein and O'Halloran 1995). Thus, there are institutional mechanisms and control outside the "triangle", for example in the media ("scandal" figure), and in actors beyond the alliance (in the Argentine case, this can be found in the “Opposition” in Congress). Secondly, the actors included in the triangle are not necessarily uniform, since they have different interests and there are conflicts within it, turning it difficult to set up a “clear agreement”. The triangle does not seem to be as easy to define and hold it together.

Finally, I find the American Congress Literature. This studies the oversight techniques, procedures and institutions within the US politics and its Congress. Therefore, it defines control as the political-legislative review of the actions of federal departments, agencies, commissions, programs and policies carried out by the bureaucracy (Aberbach 1990, 2). Thus, the Committees are in charge of externally control the agencies. The control techniques may be more informal (communication between actors), or formal (Ogul 1976, 7-9). The most used by the United States Congress are (in descending order): informal communication between members of two separate powers, programs hearings, hearings by amendment, investigations of members of the bureaucracy staff, bureaucrats evaluations, analysis of proposed regulations, evaluations of external agencies, and internal agency reports (Aberbach 1990, 135).

This literature is foundational. However, we found some problems, or potential conceptual stretching, if we apply its categories (in a pure manner) to realities with LB not so professional and bureaucracies not so efficient, as some Latin American cases (Huber and McCarty 2004). Its universe of application seems to primarily be established democracies and developed economies, with senior Legislators and "Weberian" bureaucrats (Evans and Rauch 1999). If we applied it purely to other “deviated” cases (like Argentina), we could fall on a potential normative or surface understanding, or a conceptual stretching. However, most of the concepts used in this article come from adaptations of this literature.

Argentinean Congress and its political control

Structural Conditions

Integration

The LB has a particular position within the Latin America institutional structure. It is not the main political actor, because there is a system imbalance, favoring

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the Executive Branch (EB). Therefore, Latin American LB usually holds a secondary place.

However, many studies analyze this statement (Mustapic 1997, Mustapic 2000, Palanza 2006, Mustapic 2002, Cox y Morgenstern 2001). For instance, they explain that the 1853 Argentinean Constitution tried to deal with the threat of society dissolution and political anarchy. As a result, it gave great deal of power to the EB, handing it over the rule of the political process, longing for fast and efficient answers (Mustapic 1997, 4-5). Despite of this unevenness of power, they argue that is a mistake to treat the LB as a weak and passive political actor. On the contrary, the National Argentinean Congress is an important actor and not just a rubber stamp. It has the power to revise, slow down or reject the EB and bureaucracy actions (Mustapic 2000, 577-578). Therefore, the LB support is not a given principle, but should be achieve through a tough process of negotiation. “The Congress has a reactive role, focus revising the legislation” (Mustapic 2000, 577).

Taken this importance into account, I find two types of integration and relationships that could arise between Legislators within the Committees: a partisan and a regional one. Like Cox and Morgenstern (2001) teaches, this classification takes into account the amount and percentage of Legislators that politically response to the EB, and the percentage of Legislators with local/regional interest (Cox y Morgenstern 2001, 376).

In a Committee with a partisan integration the party membership is the core guidance of the legislative action. The parties and its ID occupy the center of the process, coordinating the Legislator actions. Within the particularity of the Argentinean LB, this prevalence ends up creating an “officialism/opposition” cleavage. The party membership and its function in the political process (officialism or opposition) are relevant variables when the Legislators act or vote. This way, the Legislators that belong to the President´s party must accept all her initiatives, also trying to slow down or obstruct any sort of control. This is why the “President Legislators” will attempt to avoid the oversight of the bureaucracy, precisely because it is “Her bureaucracy”. On the contrary, if the Legislators belong to any opposition party, they will use the LB as one of the last remaining institutional spaces to perform its opposition. So, they will try to exert an active and probing control, as a political gesture to the officialism.

In this sense, the bureaucracy could be taken as another device within a political conflict. It could be use to achieve certain public policies, trying to avoid any kind of control (officialism), or to “do politics”, controlling and sanctioning the “EB soldiers” (i.e. the bureaucrats) (opposition). I state that the prevalence of a party integration with an opposition majority in the Committee favors the control. And a party integration with an officialism majority in the Committee hinders the control.

On the other hand, there could be a regional integration. This happens when the local belonging of the Legislators is a relevant factor. Namely, the regional provenience leads the Legislator actions and is the substance that matters to define their political identity - and not so much the party membership. Cox and Morgenstern (2001) states that this type of Legislator is only concern on obtaining benefits for their regions and their constituencies. So, the political

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conflict between Legislators is different: they “fight” united by provinces or regions, against other ones –not minding so much about the party ID. I state that a Committee with a regional integration has a structural condition that favors the control of the bureaucracy, because it has an electoral turnover. This means that the Legislators have an electoral motivation to control, because a poor public policy performance could translate into vote (and resources) losses. So, the control is encouraged, because it affects the Legislator local support. They control as a strategy within the survival of their political careers.

Summing up, I state that a Committee with a partisan integration with an official majority has a structural condition that hinders the control. And a Committee with a party integration with an opposition majority, or a regional integration, favors the control.

Permanence6

Latin America and Argentina in particular, has a low reelection rate within the National Legislators. In Argentina, this varies between 19% and 29% (Jones et. al. 2002, 658). This way, the Congress presents a low permanence (high rotation) of its members, because Legislators are likely to stay for one period and then go on with their political careers - manly in executive positions. In this fashion, Argentinean Congress represents a passing-through place, and not a position to develop a career (see table 1).

Number % Number % Number %

38 26.6% 28 17.4% 27 18.4%

Number % Number % Number %

22 14.5% 18 13.1% 20 13.7%Reelected

Table 1 - Reelection and rotation within the Deputy Chamber (1985-1997)

1985-1997

17.3%

Source: Molinelli, Palanza y Sin 1999

100% 146 100%

Reelected

Total seats

100% 147 100%

152 100% 137

1989-1991

1991-1993 1993-1995 1995-1997

Total seats 143 100% 161

1985-1987 1987-1989

As we can see in the table 1, there is a low reelection rate in Argentina through the years.

In the same manner, Lodola (2011) builds up the political careers of a core political actor in Argentine: the provincial Governor. He does it from 1983 to 2007, detailing each of the political positions they had (elected or designated). As a result, it shows that the National Congress is not a frequent destination in their careers (see table 2).

6 The literature addresses this concept as turnover. Although I know is the “right” term to use, I will like

to use permanence precisely because I attempt to measure how long the Legislators stay in office.

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Deputies Senators Deputies Senators

33 Gob. 30 Gob. 36 Gob. 35 Gob.

20% 18% 21% 21%

Source Lodola (2011)

Table 2. Percentage of Governors that were before/after National Deputies or National

SenatorsBEFORE AFTER

164 Governors total

Considering a total of 164 Governors of the 24 Argentinean provinces (23 provinces and the City of Buenos Aires), only 20% (33 of 164) were National Deputies sometimes before in their careers, and 18% (30 of 164) were National Senators. And only 21% (36 of 164) were National Deputies after being Governor, and 21% (35 of 164) were National Senators (Lodola 2011).

In conclusion, the LB is not a desire and priced political position in the Argentinean political careers. This has important consequences in the Congressional functioning and in the control in particular. A low permanence implicates a high circulation of Legislators within the LB. This creates a low seniority within the Chambers. We find “young” legislators, that have low experience in the legislative job, in the law elaboration process, in the anticipation of future and possible scenarios that should be regulated by the law, in the statue management, and in the normal procedures of a political-legislative negotiation. This means, there are Legislators with low skills and a slight Legislative “knowledge”: “amateur Legislators” (Jones el. al. 2002).

This low expertise does not allow the Legislators to develop a profound know how of the control task, because this is manly learn by the experience. And also, the low permanence hinders their learning aspiration. They do not seek to redress their “ignorance”, precisely because they will not stay long enough in that position: they will not be Legislator for so long. This means that the Legislators –in average- does not have a controlling experience whatsoever, and does not have any incentive to develop one. In this sense, some of them declare that does not really know or fully understand what are their resources or competences for controlling (as we will see in the data section). Like I state, their high rotation discourage any kind of deep understanding of their job responsibilities, resources and procedures. A real (not just theoretical) comprehension of the control activity would take years to be achieved. So, when it comes to control, we find a “rookie Congress”, that do not know deep enough what to do to control, and how to do it.

Summing up, I state that a high permanence of the Legislators in the Committee (2 terms or more) is a structural condition that favors the political-legislative control of the bureaucracy. On the contrary, a low permanence (1 term or less), discourages the control.

Specialization

As we saw, the Legislators in Latin America tend to have a low permanence at the LB. During their short stance in this political branch they cannot develop a

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high specialization. From a pure theoretical view, it should be expected that with a short temporal staying-over perspective (1 term) and with limited resources (time, experience and knowledge) a Latin American Legislator would focus in a minimal amount of different themes. This way, they could efficiently distribute their limited resources.

However, like Jones et. al. (2002) advert, when it comes to participation in new Committees, the Argentinean Legislators do not apply a “substitute” logic. They use an “aggregation one”. This is, they do not reduce their participation in other Committees to be part of a new one. Instead, they add it without minding the possible consequences that this could provoke in their legislative performance. “Instead of substituing between Committees, as the supply of new slots goes up, Argentine deputies demand more of them” (Jones et. al. 2002, 661). So, this adding logic necessarily reduces the Legislator specialization, because it hinders their possibility to dedicate more time to a certain topic, just because they need to pay attention to more themes. They seem to consider this adding situation as a “Pareto optimal”, in which any aggregation does not produce any cost to them, leaving the situation as it was, or even giving them more benefits (but not worsening it).

The National Argentinean Congress has 257 Deputies and 72 Senators. The Deputy chamber has 45 permanent and 22 special Committees. And the Senate has 37 Committees (permanent plus special). Considering the total of the Deputies elected in 2007-2011, they all participate –in average- to 5.5 Committees each. The range of variation is {1,12}, meaning that the minor participation of a Congressman is in 1 Committee, and the maximum, 12. Also, the standard deviation is 1,3, which means that the Committee participation of the Legislators are very close to the mean (they separate 1,3 average from the mean). The mode is to participate in 6 Committees. Within the Senate, considering the total of Senators elected between 2007 and 2011, their participation in Committees is 7.5 each – in average. The standard deviation is bigger than in the Deputy Chamber, being 2.3. This means, that all Senators, in average, separate from the mean in 2.3 participations in Committees. The mode is to be part of 8 Committees, and the range is {1,13} (See table 3).

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Source HCSN y HCDN (Arg) y US Senate y US House of Representatives (USA)

Mode 2 4

Total Comisiones 25 Committees 23 Committees

Mean 1,81 4,48

Standard Deviation 0,5 0,8

Deputies Senators

Total 441 100

Total Comisiones 67 Committees 37 Committees

United States

Standard Deviation 1,3 2,3

Mode 6 8

Total 257 72

Mean 5,5 7,5

Table 3 - Deputies and Senators Committee participation in Argentina and the United

States

Argentina

Deputies Senators

There seems to be a high rate of Committee participation in Argentina, unlike the United States. In the US the mean of Deputies Committee membership is 1.81 each, with a standard deviation of 0.5. And in the Senate, the mean is 4,48 Committees each, with a standard deviation of 0.8. Also, the mode for the American Deputies is to be part of 2, and for the Senators is 4.

Therefore, the American Congressman has a higher theme specialization than their Argentinean counterparts, because they participate –in average- in fewer Committees. This allows them to focus their time, attention and study in fewer themes –increasing their knowledge in those specific areas. I state that the amount of Committee memberships does affect the Congressman performance. So, a high rate of Committee participation does brings “suboptimal” consequences. This way, the Argentinean Congressman has a lower specific knowledge, and less time and resources to learn how does a specific bureaucracy area works, how is constitute and how should be control.

A Committee with a high specialization favors the control of the bureaucracy, and a Committee with a low specialization, hinders it.

Legislative Oversight in Argentina: taking a fast glance at it

The low expertise and professionalization of the Argentinean LB hinders the chance to employ ex ante controls, because this type of control needs a great deal of experience dealing with legislation that could anticipate possible conflict scenarios and solve it with different regulations. It takes a lot of skills and understanding of the real world of bureaucrats to regulate their behavior, affecting its discretion and legal framework. Therefore, we assume that the ex post mechanisms of control are the only ones available for the Argentinean case (Palanza 2006, 46-47). As we said, in Argentina the ex post techniques of control are: written reports requirements, cabinet interpellations (with the possibility of removing them from office), political trials, monthly visit of the chief

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of the cabinet of Ministers (“jefe de gabinete de ministros”), citation to public servants or any particular to the Committees meetings, budget control, and the creation of special monitoring Committees (“Comisiones Especiales de Seguimiento”) (Palanza 2006, 47).

In general terms, the most used one is the written information requirement7 (See table 4). Considering the total amount of written requirements send it, almost 2/3 was responded (Palanza 2006, 49). So, it seems to be an effective control technique. However, the author teaches us that the reports requirement unanswered are the cue ones: are the ones that actually matter. And these are answered through informal channels (Palanza 2006, 50).

Number % Number % Number % Number

1990 12 8.5% 48 33.8% 79% 55.6 142

1991 16 10.3% 45 29% 94% 60.7 155

1992 1 0,6% 66 36.9% 112% 62.6 179

1993 7 4.5% 56 36.4% 91% 59.1 154

1994 2 1.5% 44 33.3% 86% 65.2 132

1995 5 3.8% 18 13.6% 109% 82.6 132

1996 16 11.3% 15 10.6% 111% 78.2 142

1997 10 12.7% 12 15.2% 57% 72.2 79

1998 11 4.8% 37 16.3% 166% 73.1 227

1999 6 4.3% 81 58.3% 47% 33.8 139

2000 2 1.4% 84 57.1% 61% 41.5 147

Source Palanza 2006

Table 4 - Report requirement, projects presented and approve by Congress and answered by the EB (1990-2000)

Year Report requirements not consider Report requirements approved but

unanswered

Report requirements approved and

answeredLaw total

Nevertheless, the main political issue is that most of those control techniques implemented do not come along with enforcement and sanction mechanisms. Thus, the sanction (if any) is process through judicially channels, or by internal mechanisms. This shapes negatively the legislative control because it constrains it to a plain formal or declarative instrument.

As I stated, the literature of legislative oversight in Argentina finds an almost null control because: a) it was conceived like that, breaking away the LB from the policy making process, and restraining it to an ex post examination institution, but without a real political culture of control (Ferraro 2006); or b) because the party leaders (these controls the political careers in Argentina) do not find any interest or profit in controlling, provoking the same attitude in Legislators (Palanza 2006). My intention is to discuss these theories, searching for an explanation in certain structural conditions of the LB (type of integration, Legislator permanence and Legislators specialization) that shape the political-legislative control of the bureaucracy.

7 A report requirement is a resolution dispatch. So, in order to be approve, it needs to follow the normal

approval process of any law, but the case of a unanimous dispatch when it goes directly to the person or entity disposed.

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Methodology

The hypothesis of this paper is that in Argentina the political-legislative control of the bureaucracy is a function of some structural conditions of the LB. Specifically, of its type of integration, the Legislators permanence and their specialization. So, I state that in Committees with a partisan integration with an official majority, with low permanence and low specialization, there are structural conditions that hinder the political-legislative control of the bureaucracy. On the contrary, if there is a partisan integration but with an opposition majority, or a regional type of integration, a high permanence and specialization of Legislators, there are structural conditions that encourage the political-legislative control of the bureaucracy (See table 5).

Type of Integration Permanence Specialization Politcal- Legislative control

Partisan, with Opposition majority

RegionalHigh High Encourage Control

Low Low Hinder Control

TABLE 5 - LB Structural conditions towards a Political-Legislative control

INDEPENDENT VARIABLEDEPENDENT VARIABLE

LB Structural conditions

Partisan, with Official majority

I display 3 independent variables: Specialization, Permanence and Integration.

I measure the Committee specialization taking as a proxy estimator the average amount of Committees in which the Legislators (members of the Committee under study) participate. Thus, if the Committee has Legislators, that –in average- participate in 4 or less Committees (including the one studied), I state that the Committee has a “high specialization”. In contrast, if the Committee has Legislators that participate in 5 or more Committees, I state that the Committee has a “low specialization”.

Regarding the permanence, a Committee has a “low permanence” if the Legislators are member of it just for 1 term. If they stay 2 or more terms, is a “high permanence” Committee.

Regarding the type of integration of a Committee we need to consider which kind of theme is treated. If it is a regional or local theme, then I assume that it will have regional integration. Otherwise, I should consider it a potential partisan Committee. Also, is important to check if there is some sort of legal requirement to be part of the Committee, for example, be a Legislator of certain region.

Simultaneously, if is a Committee with a partisan integration, we should consider the percentage of Legislators that belong to each political force. If there is an official majority, then it has an official type of integration. The same thing if it has an opposition majority.

The dependent variable is related to LB structural conditions that affect the control. Then, it has 2 categories: the existence of LB structural conditions that encourages the control, and the existence of LB structural conditions that hinders the control.

This is an observational study, with an exploratory mindset. Therefore, I explore how this process develops in Argentina, trying to reach the systemic factors that

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affect the political control of the bureaucracy. This way, I try to explore the relations between the reality and my hypothesis, contrasting the current concepts with the data (Bunge 2005, 13-21). The exploratory approach does not use earlier models as foundation for its procedure. This is why I explore the reality of the case seeking to discover their manners. Thus, the intention is to document as fully as possible. Therefore, the methodological task is to abstract and generalize. Taking the observed reality and raise it up to a theoretical level, trying to find out how widespread that characteristic or behavior is. (Bunge 2005, 13-21).

I study this process on a national level, focusing on the national Congress and the national bureaucracy. The analytical unit is the dyad Committee-Agency. So, I examine the instances were these two political actors meet (formally, this is the “juncture” were this relationship takes place).

To study this process I examine two Special Following Committees of the National Congress, one exclusively of the Deputy Chamber, and a mixed one (Deputy plus Senate). The former is the “Comisión de Seguimiento de los Emprendimientos Hidroeléctricos de Yacyretá, Corpus, Garabí y Roncador” (Following Committee of hydroelectric ventures of Yacyretá, Corpus, Garabí and Roncador). The latter one is the “Bicameral de Fiscalización de los Organismos y Actividades de Inteligencia” (Bichamber Committee for the oversight of the organisms and intelligence activities). I selected this “special follower Committees” because in Argentina the control process is legally disposed through these Committees, and not the “permanent” ones. And I selected these ones especially because they are related to core political topics in Argentina, as it is its intelligence and its energy. Perhaps other Special Committees would do the job, but I needed to limit the research due to time and resources realities.

I studied each one of the reports done by these Committees8. I also held 14 in depth interviews with experts on the subject: 4 national Deputies, 3 main legislative advisors, 1 career bureaucrat, 1 Director of an Agency, 1 ex Defense Vice minister, 2 Committee secretaries and 2 academic experts.

The selection criteria responded to their participation in the Committees studied, being experts in the field, or belonging to the controlled bureaucratic agencies. On the other hand, I also implemented a snowballing sample, whereby the person interviewed recommends other key informants, and so on9. This type of sample allows reaching specific profiles.

The studied period is the one that begins with the creation of the Committee until 2011.

8There are no public versions of the Committee meetings in intelligence matters, because of security

concerns. 9 I used a Discuss Guide for the interviews (See it in Annex A), with most of open answer questions,

trying to respect the exploratory fashion of the study.

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Data Analysis

Comisión de Fiscalización de los Organismos y Actividades de Inteligencia

“Democracy calls for politically neutral,

transparent, and accountable, yet effective,

intelligence”

T. Bruneau yF.Matei

The state intelligence is closely related to the production and management of intelligence - whether in its content or its sources (Bruneau and Boraz 2007, 1). In this sense, the intelligence services need, by definition, secrecy to be efficient. This causes an obvious political problem, especially in democracies: how to control something that essentially requires secrecy and concealment for an effective operation: the state intelligence without confidentiality becomes sterile. State Intel requires a high level of sophistication, expertise and complexity, which makes it even harder to control. So, how to justify the control of a secret, complex and sophisticated activity by “foreigners”, inexpert or ignorant people?10

Intel activities can have an internal control (made by the same agency or the EB), or an external control (made by the LB or the Judicial Branch). When it comes to external control made by the LB, the first antecedent in Argentina was with the Internal Security Law 24.059 (Ley de seguridad interior) in 1992 (Estévez 2005, 162-165). Among other things, it established in its 33 article the creation of the Bicameral Committee of Fiscalization of Security and Intelligence Organisms and Activities (Comisión Bicameral de fiscalización de los órganos y actividades de seguridad interior e inteligencia). It was institute for the “supervision and control of the organisms of internal security and intelligence” (Ley 24.059). However, despite of the respectable intention of set up a control, the Law gave the Committee too little power for it. For instance, it could not access to classified information, fearing an eventual information leak (Brandao Antunes 2007, 204): the control born plugged.

The National Intelligence Law (Ley de Inteligencia Nacional) (25.520), was promulgated on December the 3, 2001. It tried to revise that control problem, reforming the structure of the National Intelligence System (Sistema de Inteligencia Nacional) (SIN). In its 6 article it establishes that the SIN organisms are: the Intelligence Secretary (superior organisms), the National Direction of Criminal Intelligence and the National Direction of Military Strategic Intelligence (Ley 25.520). The Sin depends on the EB. In its 32 article, this Law creates the “Bichamber Committee for the oversight of the organisms and intelligence activities” (Comisión Bicameral de Fiscalización de los Organismos y Actividades de Inteligencia), with “wide powers to control and investigate ex officio” (25.520 law). And it determines that the “SIN organisms should give the Committee all the information and documents that it requests” (25.520 law). Thus, this Committee has the assignment to “oversight the performance [of the SIN] and make sure that it strictly adjust to the constitutional norms, verifying the strict observance and respect of the individual guarantees enshrined on the

10

The National Intelligence Law (25.520) tries to prevent this “democratic attack” against efficiency establishing “…no public document created by the Committee can reveal information that could harm the intelligence activities, the interior security or the national defense”

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National Constitution, so as the general strategic guidelines of the National Intelligence policy”(25.520 law).

This Committee is legally allowed to control and oversee all the intelligence activities, even the “reserved expenditures” (gastos reservados), and ask for any kind of information, or request the presence of any public servant – if is consider relevant for their task.

As a result, the commission was established in 2001. However, it could be effectively formed in 2005. It has 14 members of both Legislative Chambers, and its composition respects the Chamber majorities, so now (2011) it has a government majority. As I stated, this is a first problem for controlling. Like a National Deputy member of the Commission warns: "[The political control should be] an external monitoring uncommitted to the government interests [...] so is necessary to keep a certain distance, allowing you to see things that the Government itself cannot see because of the own pathologies of power that makes it difficult to control itself "(interview done by author to Dr. Bullrich). Indeed, the ruling party majority in the Commission can easily block or impede the normal and lawful control. "The commission is loaded with partisanship, so all the report requirements end up blocked" (interview done by author to Congressman Dr. Pinedo).

Therefore, it has a partisan integration, because it deals with national concern themes (there is not a pork seeking logic in this Committee). Also, there is no formal requirement to be part of the Committee, but a confidential clause. The current Committee has a ruling party majority. So, it accepts what the EB commands, discouraging the control of “its intelligence”, and the opposition do not have the power neither the intention to control. “The opposition only tries to make noise to appear control, and the ruling party majority struggles to blocked and prevent the control to happened” (interview done by the autor to Dr. Ugarte)11.

In 2009, the Committee had a partisan integration with an opposition majority. But it did not control. This was because the Committee presents an alternation logic that discourages the control. The opposition at the Committee does not try to reject, negotiate or dodge the official hindrance, longing for a future reciprocity. The opposition accepts this no-control scenario, wishing that when they become the majority party the “new” opposition will accept this unspoken code as well. “You can find in the Committee 2 parties, the PJ (Partido Justicialista), the oficial one, and the UCR (Unión Cívica Radical), the main opposition. The Committee never actually worked as legally settled because `now is my turn, and then is yours´” (interview done by the author to Congresswomen Dr. Bullrich).

It is also a Committee that could not settle a permanent set of Legislators, renewing every 2 or 3 years it composition. So, the Legislator permanence is low, so as its seniority. The Legislators only remain 1 term at the Committee. Therefore, the Committee has a low permanence.

11

Some experts interviewed state that they have send report requirements to the SIN and they did not get any answer, or they gave them useless information, or partial information, or even reject to answer.

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Then, the specialization of the Committee is also low, because its Legislators participate –in average- in 7 Committees. This hinders any kind of actual learning through time.

So, my field research shows that there are LB structure conditions that hinder the political-legislative control of the intelligence. Despite of having been legalized, and having wide available resources to do so, there seems to be no systematic control of the intelligence, partly because of the partisan integration with an official majority, the low specialization and the low permanence of its Legislators.

Comisión de Seguimiento de los Emprendimientos Hidroeléctricos de Yacyretá, Corpus, Garabí y Roncador

The hydroelectric central of Yacyretá was historically associated with corruption scandals, regarding the funding (and some apparent diversion of funds), and the delay in the completion of the construction12 (Interview of the author with Executive Director of the EBY, Arq. Thomas).

Therefore, and as a fire alarm activated by the civil society, interest groups and some political actors, by the 1209 Order of the Day, on November the 20th of 1996, it was decided to create a Special Committee: “… [We decided] to create a Special Committee in order to follow up the execution schedule on the work planned by the Yacyretá treat, until the conclusion of the facilities” (Order of the Day 1209, 1996).

This Committee arose as an overseeing device in charge of ensuring transparency to this bureaucratic “black box”. The Committee is composed of National Deputies from the province of Misiones and Corrientes. As we saw, it was legally conformed on 1996, but it was actually settle in 2001. It has 10 members, and within its main tasks is the daily monitoring of the bureaucrats responsible for the construction of different hydroelectric centrals. The main one is Yacyretá-Apipé.

Yacyretá-Apipé is one of the fundamental hydroelectric central of Argentina. It is situated on the Paraná River, in the northeast of the country, 300 km. southeast of Asunción (the capital of Paraguay), and 1.000 km northeast of Buenos Aires (Argentina´s capital), between the 27° and 28° parallels. Its power is 3100 MW, generated by its 20 turbines (20 units that generates 155 MW each). Its nominal design jump is 21.3 meters; it has a diameter of 9.5 meters, a rotation speed of 71.4 rpm and the maximum turbinable flow of 16.600 m3/s. It was inaugurated on July, 1998. But, it was not until 2011 when it reached the planned line of elevation of 83 meters above the sea level. So, now it supplies 22% of energy demand in Argentina, producing 60% of the national hydropower (Levinton 2010, 9-13)

This Committee manly controls the actions of the “Entidad Binacional Yacyretá” (EBY) (Binational Yacyretá Entity). The latter is in charge of the administration of Yacyretá. It was created on 1973, by the Yacyretá Treaty. It is a “Binational” entity because Yacyretá has a mixed jurisdiction and direction, between

12

It was just completed in 2011.

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Argentina and Paraguay. In fact, the third article of that Treaty established: “…The Binational Entity [has] juridical, financial and administrative capacity and also the responsibility to study, project, direct and execute all the works necessary to place [the Hydroelectric Central] into motion…” (Tratado de Yacyretá 1973, 5). Therefore, the EBY is the bureaucratic institution responsible for the right functioning of Yacyretá, and in charge of all the constructions done there.

The Committee is composed by Deputies of Misiones and Corrientes (5 for each province). This way, by 2011 it had 5 Deputies by Misiones, 4 by Corrientes, and 1 by Entre Rios. Unlike the Intelligence Committee revised before, in this Committee the partisanship does not seem to affect the normal functioning of it, unlike the regional belonging. So, there is a regional integration, because the Committee is in charge of controlling the execution of the construction works and its local environmental and social impact. Therefore, is actually controlling the local impact of a national theme (like the energetic one).

As a result, this Committee presents a regional integration, unfolding a provincial cleavage. “The political parties does not matter in this Committee, there never was any label nor political issue, because we all want what is best for our provinces, we all want get benefits of this Hyroelectric dam, and get more for my province” (Interview of the autor to Congressman Dr. Férnandez). The members of this Committee have a special interest in seeking regional benefits, so they aim to a good and non-environmental-harmful functioning of Yacyretá. They “control” because they want to avoid any negative social- ecological consequence to its provinces, because that is where the “votes come from”. As a consequence, the Congressman does not care too much about their partisanship (during their participation in this Committee), but for getting benefits –or avoiding losses- for their local/provincial belongings. There are partisan alignments although they are intra-province.

Therefore, the partisan is deactivated as a node, because of the regional interest. These Legislators have a differential utility looking up for these issues, controlling, because if they fail they could lose their constituencies. So, there seems to be an electoral motivation behind control (Meyhew 1974), in which the members seek credit for a good performance of the hydroelectric central. Therefore, the Legislators in this kind of Committee try to please its electoral bases, and not the ones that control their political careers.

It is a low specialization Committee, because their Legislators participate –in average- in 6 Committees each. This hinders the development of a specific knowledge about the hydro-energetic sector and how to control it.

Regarding the Legislators permanence in this Committee, they do not stay for more than one term. So, there is a low permanence. This negatively affects the bureaucracy control. Even, Legislators claim that they do not fully understand their faculties and attributions within the Committee, not knowing exactly what they can or should do to control. This partial ignorance provokes the low rate of report requirement that the Committee dispatch, and as a result the little

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information that the EBY sends to the Committee13. “I will not ask them [the Legislators] to demand me information. They should be the ones to do it on their own. This is related with how concern they [the Legislators] are in controlling these themes” (Interview of the author with Executive Director of the EBY, Arq. Thomas).

However, because of the “parish” concern of the Committee, there is an informal circulation of information. This takes place through calls and meetings between Legislators and EBY servants, in which they informally share information. “When they ask me for a report I answer it immediately. But, I get more report requirements from the Ministry [of Planification] and the Secretary [of Energy]. Regarding the Committee, they call me and come to my office and ask me a lot of questions, and we chat for hours. Or even, I meet them in trips to the provinces, because some of them are my neighbors, and we speak there, in situ” (Interview of the author with Executive Director of the EBY, Arq. Thomas). As is Ferraro (2008) for the Chilean case, it seems that in Argentina, on regional matters, the risk of losing votes because of a negative impact of a hydroelectric central failure is too big. So, the Legislators elaborate an informal procedure, which guarantees them a direct and privilege flow of information.

Thus, my research shows that in this case there seems to be structural conditions within the LB that discourage the political-legislative control. The regional integration should encourage the control: this is why there are informal procedures to be brief about certain topics. However, since this joins with a low specialization and a low permanence of Legislators, the control cannot be totally effective, or be structurally encourage.

Conclusion

The bureaucracy control should be consider a core procedure towards a fully democratic functioning of the political system, because bureaucrats play a political role in the policy implementation process, and should not act detached from the democratic powers. The elected powers should always prevail, because if not, democracy remains as an empty concept, and not a real daily substance. If the delegated powers of a State act without any kind of control, any democracy turns into a mere label or a drain delivery. The democracy reality should be built up on a daily basis, and I state that the political-legislative control of the bureaucracy could be one path towards that end.

13

The Committee cannot sanction or penalize. So, it is a weak Committee. “If the Committee can only informed itself, it cannot control. We need to change the law to state a real control” (Interview done by autor to Congressman Dr. Fernández).

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As other studies shows, in Latin America the political-legislative control of the bureaucracy is mainly deficient, oscillating, contingent and embedded in political conflicts. This article tries to collaborate with that understanding, adding the existence of structural conditions that tends to favor or discourage the control. Thus, the type of integration, the specialization of the Legislators, and their permanence in office, seems to be important factors towards a real control.

These findings are significant because allow us to understand and identify a non democratic scenery within a democratic state. This is, detecting “brown areas” not only along a country in subnational units (O´Donnell 1993, 71), but within the national state, entrenched in the bureaucracy. I found two agencies or areas in the public administration that managed to bypass any sort of external and “horizontal” control. At most, in the long distance, they keep on subordinated to some internal and vertical control of the EB. This is a potential unbalance of the equilibrium between state branches, because it allows the EB to act “in the shadows”. This is, evading any control using a delegated power that is not being overseen from the “exterior”. Or even, a much more risky scenery: the bureaucracy becoming an autonomous actor and operating on its own. This means, just following their own criteria and goals, and not really responding to any elected power. The literature instructs that any type of these deviations could be rectify through control.

Finally, I consider relevant to keep deepening this kind of understanding for the Argentinean case, continuing analyzing the different causes and determinants of the bureaucracy control. This is why I am still researching the functioning of another Committee (Comisión Mixta Revisora de Cuentas), which will bring variation in the dependent variable. This is, there seems to be LB structural conditions that encourage the control.

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ANNEX A

Guía de Pautas

CONTEXTO GENERAL

1- En términos generales, ¿qué entiende Ud. por control político?

2- ¿Considera que la burocracia nacional es un “actor político” que merece ser

controlado?

3- ¿Hay control en general en nuestro país?

4- ¿Hay control de la burocracia en Argentina?

5- ¿Qué pasaría si no se controlara a la burocracia?

6- ¿Quién es el principal encargado de controlar a la burocracia?

7- ¿Quién debería ser el principal encargado de controlar a la burocracia?

8- ¿Qué rol tiene el poder legislativo en el control de la burocracia?

9- ¿Qué consecuencias para la calidad democrática tiene el control de la

burocracia?

10- ¿Cómo imagina que se controla a la burocracia, supongamos, en Estados

Unidos? ¿Y en Uganda? ¿Y en Uruguay o Brasil? ¿Dónde ubicaría a la Argentina y

por qué?

CONTROL ESPECÍFICO DE LA COMISION

11- ¿Cómo fue su experiencia controlando a la Burocracia?

12- En el día a día, en lo cotidiano, ¿cómo la controlaban?

13- ¿Qué les pedían?

14- ¿Qué resultados obtenían?

15- ¿Había mecanismos de enforcement (obligación y sanción)?

16- ¿Puede haber control sin mecanismos de enforement (obligación y sanción)?

17- ¿Quién iniciaba el proceso de control, esto es cómo se decidía comenzar a

controlar? ¿Hay una cadena de mandos?

18- ¿Cuáles son los mecanismos/opciones posibles y reales que Uds. disponían para

controlar?

19- ¿Cuál es el más efectivo? ¿Cuál el menos? ¿Por qué?

20- ¿Cómo se podría mejorar el control?

21- ¿Cómo sería el proceso ideal de control de su comisión a la burocracia? ¿Cuán

lejos del real está?

22- ¿El control de la burocracia que hacía su Comisión es mayormente formal o

informal? ¿Por qué?

23- ¿El control de la burocracia que hacía su Comisión es mayormente institucional

o personal? ¿Por qué?

24- La bibliografía al respecto habla que el control de la burocracia sólo surge

cuando hay un detonante por parte de la sociedad civil, ¿qué cree Ud. al respecto?

¿Es posible el control de oficio en nuestro país?