The Rise of Legislative Authoritarianism

The literature has focused on executive aggrandizement as the path leading to autocratization. Therefore, dysfunctional relations between the executive and legislative branches were seen as a "blessing in disguise" which prevented presidents from becoming powerful enough to cause democratic backsliding. More recently, scholars have interpreted such dysfunctionality as a problem in the form of "democratic hollowing." Yet this may be only a transitory state of affairs. Power vacuums tend to be filled. Evidence shows that even fragmented groups in the legislative branch can concentrate power. This concentration of power defines another path to democratic backsliding via what we call legislative authoritarianism.

The twenty-first century has brought a new threat to democracy in Latin America. This danger comes not from military coups or power-grabbing presidents, but from a more surprising quarter: popularly elected legislatures. Scholarship on democratic backsliding emphasizes the dangers of "executive aggrandizement,"¹ with the legislative branch seen as one of the tools the executive uses as it seeks to concentrate power. This account, however, cannot explain contemporary cases such as those of Guatemala and Peru, where strong authoritarian proclivities have become manifest in the legislative branch itself.

This nonexecutive path to backsliding remains poorly understood. The presence of a democratically chosen body of lawmakers at the center of an authoritarian regime seems counterintuitive. Yet in certain circumstances, legislative hegemony can become real. Understanding these conditions—and ways for dealing with them that protect constitutional democracy—is an important task for students of democratic governance.

As is widely known, Latin America has tended to suffer from executive branches that are either too strong or too weak, leading to political instability in various countries. When the executive is too strong, it uses the legislature as a shield to help cover unchecked power concentration that subverts the rule of law and produces "democratic backsliding."² Unlike a military coup, there is no single break with democracy, but rather an incremental cooptation of key institutions. Venezuela starting with coupmaker-turned-president Hugo Chávez and Nicaragua under Daniel Ortega are two recent examples.

When the executive is too weak, there is typically no governing coalition within the legislature. If the economy falters or presidential corruption is exposed, congress will often impeach and remove the president. The high frequency of impeachments in the region—since 1995, eleven presidents have had to leave office as a direct or indirect result of impeachment proceedings—suggests that the institution was being "stretched" for political reasons.³ Paraguay's President Fernando Lugo, for instance, was impeached and removed in just two days in June 2012, having been denied time to prepare a defense. The politicization of this institution by an emboldened legislature can result in an "impeachment trap" in which the president's removal provides no relief for underlying political, economic, and social problems, but leads instead to calls for the ouster of the new president, and so on. The six presidents that Peru has had since 2016 suggest executives too weak to govern and perhaps the development of an "impeachment trap."

The political consequences of the legislative branch's increased power over the executive remain unclear. Scholars initially thought they were seeing the "parliamentarization" of presidential regimes. Impeachment removed presidents who had become deeply unpopular or highly corrupt, but without causing democratic breakdown.⁴ While some authors wrote of "parliamentary coups" or "neo-coups,"⁵ particularly when the grounds for impeachment were dubious, the deployment of impeachment procedures was not viewed as a threat to democracy.

Dysfunctional relations between the executive and legislative branches (with no stable governing coalition) were at first seen as a "blessing in disguise" because they prevented presidents from becoming powerful enough to cause democratic backsliding.⁶ More recently, however, scholars have interpreted such dysfunctionality as a form of power dilution or "democratic hollowing."⁷ High executive turnover as seen in Peru is inconsistent with notions of "executive aggrandizement" or power accumulation. Power dilution is a problem because it can make democracies "ungovernable" and may even result in their collapse.⁸

The danger to constitutional democracy from an emboldened legislature is less firmly grasped than the danger from executive aggrandizement. Aníbal Pérez-Liñán admits that emboldened legislatures can destabilize governments, but adds that legislators "lack sufficient command of patronage, budgetary resources, and security forces" to impose authoritarian rule.⁹ Students of "democratic hollowing" also rate the legislative branch as unlikely to launch an authoritarian power grab since the politicians who fill congressional seats in Latin America tend to focus on the short term and "feel no incentive to cooperate" with one another.¹⁰

Overly bold legislatures and other signs that executive-legislative relations are out of joint can swiftly come to an end with a new election and the formation of a new governing coalition. If legislative emboldenment goes on for a long time, however, the result can be a ruling coalition that disregards basic conditions of democracy. Legislators driven by converging short-term calculations may begin collaborating in pursuit of shared goals such as increasing their control over institutions of accountability (courts, election boards, and so on) while shielding themselves from oversight. If freed of checks and balances and without a civil society that pushes back, an emboldened legislature can be no less a problem than an aggrandizing executive. Guatemala, where a congressional coalition of criminals and oligarchs sought to dismantle the country's democratic institutions, provides a recent example.¹¹

Peru's case is ideal for examining the long-term effects on democracy of an overweening legislature, as the country has had since 2016. Parties are hyperfragmented and legislators act mostly on "the shortest of [their] short-term motives."¹² Nonetheless, a coalition of legislators has managed to concentrate and increase its power.

What Is Legislative Authoritarianism?

Over the past half-century, political scientists who study democracy have identified different paths to democratization and autocratization,¹³ as well as the conditions that give rise to hybrid regimes.¹⁴ Executive hegemony looms large in most accounts. They show how hybrid or authoritarian regimes can form as power accumulates in a single leader or a group that governs through the executive branch. What the accounts miss is how power can also be concentrated by groups in the legislative branch. This concentration of power defines another path to democratic backsliding via what we call rising legislative authoritarianism.

Traditionally, accumulations of power outside the executive have been understood as threats to sound governance directly but democracy only indirectly. Rodrigo Barrenechea and Alberto Vergara, for instance, write of a process of "democratic hollowing"¹⁵ in which democracy is eroded not by a power-grabbing executive but rather by power being spread thinly among politicians (typically congressional deputies) who wield it only piecemeal and without coordinating among themselves. Democracy declines amid dysfunction, but no caudillo or authoritarian regime appears to take democracy's place. Overlooked is the risk that groups of legislators—driven by narrow, short-term interests—might undermine checks and balances and thereby wreck a key pillar of democracy.

Because there is no single strong leader—no Alberto Fujimori (Peru), Hugo Chávez (Venezuela), Daniel Ortega (Nicaragua), or Nayib Bukele (El Salvador)—centralizing power and tightening control over political, economic, and social institutions, legislative authoritarianism is harder to spot. These presidents used patronage, force, and manipulations of the law to maintain their own authority and suppress opposition. Legislative bodies, by definition, create legality: They can pass laws to expand their own powers or make the executive branch serve various interest groups. Congresses can also change what courts can do, or alter the number and composition of judicial bodies. In the absence of a single, disciplined ruling party, these decisions could all be discounted as uncoordinated threats.

Evidence suggests that legislative authoritarianism can exist without a strong party or well-defined ruling coalition. If interests and intentions align and enough congressional votes can be found, constraints on the legislature's power can be put aside. Mexico's Institutional Revolutionary Party (PRI) is a proximate example: It was not the vehicle of a single leader, but it concentrated power and often circumvented democratic processes and accountability mechanisms.

Coalitions such as the one that backed up the PRI during its long heyday (which covered the last seven decades of the twentieth century) can manipulate legislative processes from within, control key state institutions, and employ patronage to maintain their dominance. These coalitions often form in fragmented political environments where no single actor can dominate independently. Unlike traditional authoritarian regimes led by single leaders, coalition-based authoritarianism can be more resilient and adaptable, as the power structure does not rely on a single individual but on a network of influential actors. In coalition-based legislative authoritarianism, the executive branch takes orders from the groups that dominate the legislature, not the other way around.

Building Legislative Authoritarianism

Legislative authoritarianism implies a lawmaking body with much power and few limits. Studying its doings, we will discern two mutually reinforcing processes at work: In the first, the legislative branch focuses powers and authorities in itself. We call this "power concentration." In the second, the legislative branch shields itself from control by limiting the oversight that other branches can bring to bear. We call this "control restriction." The first process sees the legislature raise its own power, while the second sees it reduce that of other branches and state institutions (with these latter typically including courts and independent "watchdog" agencies).

If only one process is observed, we have a variant of what Guillermo O'Donnell called "delegative democracy."¹⁶ If we observe both processes going on—congress expanding its own claims and trying to control the actions of other state institutions that require autonomy in order to carry out their duties properly—then we know that we are witnessing a case of legislative authoritarianism in the making.

Power concentration

Like presidents—those traditional power concentrators—legislatures can and do use both formal and informal means to gather more power. In most cases, formal changes occur after the rules of the game have already been informally challenged and transformed. The legislative branch seizes power first, and later seeks to formalize its actions through laws or constitutional rulings.

Legislative encroachment is an informal strategy. It involves interpreting the laws—perhaps in a blatantly spurious manner—or simply acting in ways that invade the functions and powers of other institutions. Legislative aggrandizement, by contrast, proceeds more formally, as congress expands its functions in, say, spending control or oversight to overlap or compete with the functions of other institutions.

Control restriction

Control restriction is harder to achieve than power concentration. The latter means adding to the legislature's own powers; the former means cutting back on what other institutions can do—an inherently more contentious task since it requires congress to assert itself against other arms of the state in ways that diminish them. Once again, both formal and informal strategies may be used. The goal is to restrict any controls that might be placed on the legislative branch. Diluting oversight, reducing its scope and the penalties it can bring, or neutralizing institutions by replacing key personnel are all "in the game" for an ambitious congress seeking to erode checks and balances.

A popular informal strategy is legislative cooptation. It includes taking control of institutions by hiring, firing, or punishing their key people with the intent of robbing these institutions of the autonomy that they were designed to have. Arms of the state that are supposed to have a certain amount of independence so they can do their jobs are instead turned into congressional satellites that do congress's bidding, period. What this means for checks and balances is obvious.

Formal control restriction occurs when congress passes or amends laws to shield itself by directly reducing the powers of other institutions. This "shielding" strategy is more overt and hence more likely to run into pushback from targeted institutions as well as civil society and the international community.¹⁷ Observable effects include decreases in the oversight powers held by courts, prosecutors, election boards, and ombudsman's offices.

The Peruvian Case

The backsliding that has taken hold of Peru's democracy is clear. Leading indices—the Economist Intelligence Unit, the Varieties of Democracy (V-Dem) project, and Freedom House—have all recently downgraded the country. Freedom House rates it Partly Free instead of Free. This cannot be a case of executive aggrandizement: The backsliding has been going on even as the executive branch has been falling to a low ebb, with multiple presidents in just a few years, a record number of cabinet reshuffles, and presidential-approval ratings as low as 5 percent. Peru's Congress, meanwhile, is conspicuously emboldened. It has been expanding its powers while limiting its accountability.

Executive-legislative dysfunctionality in Peru has evolved through three distinct phases since 2016.¹⁸ Initially, Congress sought hegemony when its leading party, Fuerza Popular, twice impeached President Pedro Pablo Kuczynski (PPK) and forced his resignation in March 2018.

The second phase began that year, when PPK's running mate and vice-president, Martín Vizcarra, stepped up to succeed him and tried to restore executive power. He put forward a December 2018 popular referendum in which 86 percent of those voting banned the immediate reelection of members of Congress.¹⁹ In the same vote, however, an even larger share defeated his effort to introduce bicameralism. Vizcarra's lack of party alliances left him vulnerable to congressional opposition. In 2020, he too was impeached twice, and his office was stripped from him by a conviction vote the second time.

The third phase started with the April 2021 election. Pedro Castillo, a left-populist outsider, narrowly won the presidency in a runoff against Fuerza Popular leader Keiko Fujimori (Alberto's daughter).²⁰ Congress, meanwhile, was settling into an antireformist agenda that had led it to oppose not only Vizcarra's plans but also prior reforms that had sought to enhance the state's ability to regulate mining and higher education.²¹

Congress has focused more on changing regime characteristics than on advancing broad policies. This shift has severely diminished the executive branch's power. President Dina Boluarte, Castillo's running mate and successor after he, too, was impeached in early December 2022, has managed to remain in office largely by following the directives of the dominant congressional coalition.

Power concentration

There is substantial evidence that Congress has acquired more power through both formal (aggrandizement) and informal (encroachment) strategies, altering the balance of power among the branches of government. Since 2016, Congress has demonstrated a lack of restraint in exercising its formal prerogatives. During its 2011–16 term, it summoned cabinet ministers for questioning eleven times. During the first three years of its next term, it did this 26 times. Moreover, the current Congress has removed six cabinet members, compared to only two between 2011 and 2016. Investigative reports have emerged of congressional leaders demanding control over cabinet appointments and threatening the president with impeachment in the event of refusal.²² While summoning and censuring cabinet members are within the legislature's responsibilities, the heavy use of these oversight powers indicates that they are being applied for political reasons, to control key policy decisions.

The legislature has also formally expanded its power through rules changes. A notable example is the acquisition of budgetary functions, previously exclusive to the executive, following a favorable ruling by the Constitutional Court—a ruling facilitated by Congress's prior cooptation of the Court. The campaign of power expansion shows no signs of slowing. Current legislative proposals seek to grant the Permanent Commission of Congress the authority to summon and censure cabinet members even when the legislature is out of session, potentially extending political control year-round.

Additionally, bills under consideration would loosen the interpretation of Article 102, Clause 2, of the 1993 Constitution, which makes it the duty of Congress to "ensure respect for the Constitution and the laws; and to do whatever is necessary to hold violators responsible." The spurious interpretation that Congress is considering would read the "whatever is necessary" language broadly to de facto increase the legislative branch's power over the executive.

Power concentration has proceeded with minimal resistance from the executive. The lack of pushback has led observers to suggest that the presidency has been turned into a largely ceremonial office. However that may be, the tilting of the balance of power in Congress's favor is eroding the viability of Peruvian democracy.

Control restriction

Congress has employed various formal (shielding) and informal (cooptation) strategies to reduce the competencies and powers of other institutions that might hinder the legislative branch. As noted above, control restriction is harder to push through than power concentration given the likelihood of pushback, not only from the targeted institutions themselves, but from defenders in Peruvian civil society and the international community as well. Recent actions targeting the autonomy of the National Justice Board (JNJ)—the independent body tasked with overseeing judicial appointments, disciplining judges and prosecutors, and picking the head of the election authority—exemplify this. The Inter-American Commission on Human Rights and the Organization of American States have voiced concerns over Congress's attempts to remove JNJ members, saying that such moves undermine judicial independence and the rule of law.²³

Another notable victim of cooptation has been the Constitutional Court. As the country's highest court for constitutional cases, it plays a key role in resolving conflicts among branches of the central government. From 2016 to 2022, Congress tried to suspend certain members of the Court and to alter the manner in which judges were chosen to sit on it. In 2022, the conflict abated as Congress won. It managed to replace all seven Constitutional Court judges, sending to the high bench instead jurists with controversial backgrounds and close ties to blocs of lawmakers. This wholly made-over Court has issued rulings that expand congressional powers, giving the legislature more control over budget initiatives, the selection of the national ombudsman, and investigations into the JNJ. The balance of power now decisively tilts in Congress's favor.

The office of the ombudsman (officially known as the Defender of the People) is a critical intermediary between citizens and government that has long enjoyed high public-approval ratings. The current Congress made two major changes. In 2023, it named as ombudsman an attorney and former congressman who lacks specialized human-rights experience. It also eliminated public competition for the office of deputy ombudsman while reducing the qualifications required for the job. These changes, made possible by a new Constitutional Court ruling, raise questions about the office's integrity and independence of political influence.

Congress has continued its attempts to dissolve the JNJ and dismiss key figures such as prosecutor Zoraida Ávalos. By interfering in the selection of JNJ members, the current Congress seeks to undermine the autonomy and impartiality of the justice system.

Laws now exist to shield congressional actions and restrict horizontal accountability. Law 31355 of October 2021 has narrowed the scope and interpretation of the confidence votes mentioned in Articles 132 and 133 of the Constitution. This recent legislation limits such votes to matters directly related to government policy, and excludes constitutional reforms or issues affecting Congress's exclusive competencies. It establishes that only Congress can interpret when confidence has been denied. These changes effectively prevent a repeat of President Vizcarra's September 2019 decision to dissolve Congress, which was based on his interpretation of a constructive denial of confidence following Congress's refusal to approve his proposed constitutional reform. Congress has reduced the executive's ability to justify dissolving Congress in the future.

While the executive's powers have been curtailed, the law regulating presidential vacancies has left the interpretation of "moral incapacity" subjective. This is significant because Congress had invoked the "moral incapacity to serve" clause of Article 113 in 2020 and again in 2022 to eject from office first President Vizcarra and then President Castillo (PPK had been threatened with it in 2018, but resigned before Congress could vote on the matter). Declaring the presidency vacant due to a congressional declaration of the incumbent's moral incapacity is not the same as the process of impeachment and conviction, but stands alongside it as a weapon that can be used by Congress, obviously increasing that body's power over the executive branch.

The congressional practice of shielding extends not only to Congress as a collective body but also to individual lawmakers who may have committed crimes. A glaring example is a law that exempts political parties from investigations involving criminal organizations and money laundering, even though (or precisely because) several parties represented in Congress are currently under such investigations. Another new law benefiting organized crime effectively bars search warrants by requiring that the suspect's attorney be present whenever such a warrant is to be executed.²⁴

Power concentration and control restriction feed into each other and undermine checks and balances. The cooptation of Constitutional Court judges has aggrandized the legislative branch by giving it greater power over budget decisions. The interference with JNJ and the ombudsman's office staffing has allowed Congress to reduce or neutralize the oversight functions of these institutions. The dominant legislative coalition is also creating legal shields against accountability. As of late 2024, Congress was pushing bicameralism with the intent of granting the new Senate greater oversight over executive and judicial bodies.

Why Legislative Authoritarianism?

Under typical executive-led democratic backsliding, a strong president erodes the constitution in order to concentrate more power and put down opposition. Under coalition-based legislative authoritarianism, in contrast, there may not be a single driver of backsliding, but drawing on the Peruvian experience, we entertain at least three different explanations.

First, a reaction against emboldened executives is a plausible explanation. In the Peruvian case, the first movements from Congress began in response to reforms by President Ollanta Humala (2011–16) aimed at improving state capacity and as an opposition strategy against PPK. President Vizcarra represented the real turning point, however. He took radical steps such as dissolving Congress and calling a referendum, and he enjoyed unprecedented popularity and political capital. This was never more so than during the first months of the covid-19 pandemic, when he governed at the expense of a new Congress. His ouster showed that even a very fragmented legislature full of neophytes could, if feeling hard-pressed enough, deal the executive branch a devastating blow by ending a presidency.

Second, behind coalition-based legislative authoritarianism may be a logic of preservation. Here, power is sought primarily to maintain the status quo, not to promote transformation (the typical aim of executive-led backsliding). The Peruvian case shows that extreme political fragmentation can coexist with the possibility of establishing pacts and consensus within Congress. The glue that unites Peruvian legislators is the determination to hand more freedom back to mining and corporate higher education, two industries that Humala and PPK tried to give the state more power to regulate. What looks on the surface like anarchic "hollowing" or "powerless democracy" may have its own deeper logic as an attempt to preserve or restore a status quo. Only the presence of such a logic can explain why predatory politicians have shifted from short- to long-term strategies.

Third, opposition to overzealous investigative activity and corruption prosecutions may be fueling legislative authoritarianism. Since the revelations of Brazil's Lava Jato case, fighting corruption has left a mark on Peruvian politics.²⁵ There is not a single president elected since 2001 who has not been accused of corruption, and some have been arrested for it. Mayors and regional governors face similar investigations, and some see winning a seat in Congress as a way to escape behind the shield of parliamentary immunity.²⁶ A common threat can generate the incentives needed for the power-concentration and control-restriction agenda to move forward in the legislature. Legislators' shared worries on this score may also help to explain why so many of them want to end the ban on reelection and add more seats to Congress in the form of an upper house.

Peru's Congress may be a wasteland of inexperienced politicians, but that does not mean they are unable to act in concert. A seat in the legislature has become a more attractive political space, easier to fill and less likely to be controlled. In contrast, presidents have been lasting for an average of less than two years in office. Groups or coalitions with aligned intentions can emerge in highly fragmented legislative settings and reveal strong authoritarian proclivities.

Peruvian parties are feeble and constantly changing, but we are reminded that power is always relational, and the legislature has filled a political vacuum left behind by a series of very weak executives. Uncoordinated politicians, despite lacking a unified program or ideology, have coalesced to take charge of Congress and aim it at institutions perceived as threatening. Like executive-led democratic backsliding, this process has happened not all at once but as a series of cumulative legislative initiatives (both formal and informal) that may seem innocuous if seen individually.

Due to institutional dynamics, "democratic hollowing" may be only a transitory, albeit recurrent, state of affairs. It may also be one that can go together with the formation of coalition-based legislative authoritarianism. A criminal-oligarchic coalition such as the one seen in Guatemala will probably find legislative authoritarianism a naturally comfortable regime type due to its surface fragmentation and murky subsurface coalitions. In both Guatemala and Peru, the legislative branch is clearly the center of gravity. Scholars should pay closer attention to the political consequences of extended periods of executive-legislative dysfunctionality, the emergence of coalitions of legislators in highly fragmented settings, and the impact of legislative hegemony on democracy.