Power in the Balance: Presidents, Parties, and Legislatures in Peru and Beyond

2. Beyond Formal Rules and Institutions: Theorizing Executive and Legislative Powers

26 2 Beyond Formal Rules and Institutions Theorizing Executive and Legislative Powers Hecha la ley, hecha la trampa. (When a law is made, a trap is set.) —Spanish adage “Hecha la ley, hecha la trampa.” This maxim is ubiquitous throughout the Ibero-American world, and its meaning goes beyond literal translation. At its most benign, it suggests that “every rule has a loophole.” It also insinuates a profound distrust of laws and institutions, which, in this view, are not tools for promoting the public good but rather traps for ensnaring unsuspecting subjects. What is more, it implies a tension between formal rules and political outcomes, one that has been altered—but not alleviated—by the waves of democratization that have spread across contemporary Latin America. I begin this chapter by examining the concept of democracy as it relates to questions of power and accountability in legislative-executive relations . I then look at the advances made by institutionalist theory in analyzing new democracies such as those found in Latin America. Finally, I develop an alternate explanation for presidential power in general and the rise and fall of presidential power in Peru in particular. In this alternative model, two other factors—elite norms of constitutional adherence and party organizational forms—mediate the effects of exogenous forces and themselves help shape the legislative-executive balance of power. Consequently, these factors also have an impact on the quality and durability of democracy itself. Democracy, Delegative Democracy, and Competitive Authoritarianism What exactly do we mean by democracy? As countless social scientists from Gallie (1956) to Collier, Hidalgo, and Maciuceanu (2006) have told us, the concept of democracy is an essentially contested one. Scholars of newer democracies created typologies of democracies, “democracy with adjectives,” that highlight one or more ideal-typical features of the advanced industrialized democracies that are absent or deficient in the systems they examine (Collier and Levitsky 1997). Though many of these typologies were purely descriptive, a few were built on important theoretical and empirical arguments. In a series of seminal articles, Guillermo O’Donnell provided a particularly useful point of departure for discussing regimes that, while not authoritarian, are not consolidated democracies either (1994a; 1994b; 1996). These regimes do embody the major elements of polyarchy (Dahl 1971). They periodically hold reasonably free and open elections with relatively low barriers to participation and with some genuine political competition. But for O’Donnell, many are “delegative democracies,” in which executive officeholders, once elected, are relatively unconstrained by other institutions of government. Rules are not necessarily well established or universally followed by political actors and agents of the state; democratically elected politicians may employ undemocratic practices.1 The regime also has a plebiscitary quality. Although opposition groups, legislators , and the press may be free to voice criticisms, elections—especially for the executive branch—are virtually the only effective mechanisms for accountability.2 A more extreme version of this phenomenon would cross into the category of competitive authoritarianism. In such regimes, “formal democratic institutions are viewed as the principal means of obtaining and exercising political authority,” but “incumbents violate the rules so often and to such an extent . . . that the regime fails to meet minimum standards for Beyond Formal Rules and Institutions 27 democracy” (Levitsky and Way 2002, 52). Peru in the 1990s might indeed be considered a competitive authoritarian regime (see McClintock 2006; Carrión 2006). One could argue that such systems, by definition, exclude themselves from the theoretical domain of institutionalism, as we would not expect authoritarian leaders to follow formal rules. Yet even in competitive authoritarian regimes, incumbents “may routinely manipulate formal democratic rules, [but] they are unable to eliminate them or reduce them to a mere façade” (Levitsky and Way 2002, 53). Some rules still matter, at least some of the time. By problematizing constitutionalism and examining which rules are followed, when, and by whom, we can address urgent questions about political power across a variety of regime types, democratic and hybrid. In both delegative democracies and, especially, competitive authoritarian regimes, there tends to be a preponderance of executive power and an absence of countervailing “horizontal accountability” from (O’Donnell 1999a), or “horizontal exchange” with (Moreno, Crisp, and Shugart 2003), other branches of government—particularly the legislature. Kenney (2003b) has convincingly argued for conceptually distinguishing horizontal accountability, separation of powers, and checks and balances. Yet all three may be in short supply in these sorts of hybrid...