THE DYNAMICS OF EROSION IN LATIN AMERICA

Laura Gamboa-Gutirrez
PhD Candidate in Political Science
University of Notre Dame
lgamboa@nd.edu

Paper presented at the ECPR Joint Sessions of Workshops

Salamanca 2014

Please do not cite or circulate without permission

1. INTRODUCTION
In the past decade democracy in several Latin American countries has eroded. Figures like
Hugo Chvez, Evo Morales and Rafael Correa have used their popularity to destroy the system of
checks and balances, hinder free and fair elections, political rights and civil liberties (Corrales and
Penfold-Becerra 2011; Hurtado 2012; Mayorga 2009). Yet, in other countries, equally popular
presidents have tried to do the same but failed. Despite Alvaro Uribes efforts to undermine the
independence of the legislature and the courts, and the fairness of elections (Garca and Revelo
2010), Colombias constitutional order remained fairly strong. Uribe was unable to reelect himself
for a third term and had to step down giving way to another popularly elected president (Botero,
Hoskin, and Pachn 2010). Why, despite similar circumstances, some popular presidents
successfully thwart checks and balances and stay in power and others do not?
Such a question is important for theoretical and policy debates. It inserts itself in the
increasingly popular debate about why hybrid regimes come about and survive (Brownlee 2007;
Bunce and Wolchik 2011; L. J. Diamond 2002; L. Diamond 2008; Fish 2001; Levitsky and Way 2010;
Ottaway 2003)and broadens the debate about democratic reversals that the international
community has found hard to fight.
This paper argues that although low economic development, weak institutions and weak
states increase the likelihood that presidents will try to dismantle the checks on the executive and
extend their stay in office, these conditions do not over-determine whether they succeed in these
attempts or not. Rather, because democratic erosion happens over time the opposition usually has
time to respond. Accordingly, presidents ability to successfully increase the powers of the
executive and extend their time in office depends not only on their military or organized civilian
support, but most importantly on the type of response orchestrated by the opposition to the
presidents first attempts to undermine checks and balances. If the opposition uses institutions to
fight the government (congress, courts or elections), and avoids violence, strikes or coups they will
2

keep some presence in the legislature and will be better able to oppose the government in the short
and medium run. On the contrary, if the opposition retaliates outside institutions (violence,
boycotts, strikes or coups) the government has legitimate reasons to remove opposition leaders
from office, prosecute and jail them. Such a response allows the president to gather enough support
to push for more aggressive reforms down the road, and hinders the oppositions ability to block
these in the future.
In order to support this argument, this project uses cross case and within-case analysis to
reconstruct the dynamics of erosion and the mechanisms that prevent, or fail to prevent it, in
Venezuela and Colombia. Giving the scope of the project, and the fact that I am still gathering
information on Venezuela, this paper will focus solely on the findings in Colombia. During 6 months
of field research I conducted interviews with congress and cabinet members, party leaders, court
staff, journalists, academics and members of the Armed Forces, and did archival research in
newspapers and Congress, in order to trace the dynamics of key constitutional reforms during
Uribes two administrations. The information gathered suggests that the oppositions presence in
the legislative was key to thwart Uribes reforms. Albeit small in numbers, opposition congressmen
were able to filibuster important bills, mollify otherwise radical reforms, and introduce or
denounce vices that were later used by the courts to rule against the government. By the time
Uribe tried to further change the constitution to allow his second reelection the fact that the
opposition had kept some institutional resources (i.e. seats in congress), and slowed down
governments cooptation of courts and oversight agencies, was essential to successfully thwart this
attempt and prevent Uribes third term1.
In so far as it focuses on the role of oppositions, my argument is compatible with Bunce and
Wolchiks (2011) recent important contribution to the study of regime change. My approach,
however, departs from theirs in several important aspects. First, I am interested in democratic

I am still gathering evidence in Venezuela. The material I have so far supports this account.

erosion, not in democratization. Second, my understanding of erosion suggests that regime change
or survival is a protracted and path dependent process. I argue that one needs to look at the chain
of decisions made by opposition actors in response to executives attempts to undermine the
system of checks and balances. Unlike Bunce and Wolchik I look beyond elections as sites of
opposition agency. My theory suggests that in the case of democratic erosion opposition agency
enters the picture way before electoral campaigns. Third, I focus on the behavior of oppositions in
other institutional arenas such as legislatures and courts, suggesting that presidents can be stopped
by gaming the system, as opposed to fighting them from the streets.
In what follows, I review alternative explanations and why they do not help us understand this
phenomenon entirely. I then lay out my argument and use evidence from Colombia to support it. In
the conclusion I explain how preliminary findings in Venezuela further complement this account.

1. WHAT OTHERS HAVE SAID ABOUT DEMOCRATIC EROSION

Five existing approaches have been used to explain regime change. Structural arguments
suggest that higher levels of economic development decrease the likelihood of democratic
breakdowns (Przeworski et al. 2000). Indeed, lower levels of per capita income affect the likelihood
that presidents will try to undermine democratic institutions (Mainwaring 2012; Svolik 2008;
Weyland, Madrid, and Hunter 2010; Weyland 2002). When we compare the mean GDP/capita of
Latin American countries in which democratically elected presidents have tried to thwart checks
and balances and stay in power (Argentina, Colombia, Honduras, Venezuela, Bolivia, Ecuador and
Nicaragua)2, it is systematically lower than that of other Latin American countries in which their
presidents havent tried to do the same (See Graph 1)3

Part of the ongoing research is a dataset that provides a more systematic account of presidents attempts to thwart
checks and balances. The cases I identify here as constituting cases in which such attempts were made were selected on
the basis of my own knowledge and the secondary literature. This set of countries might change once I gather experts
assessments.
2

This is true for inflation adjusted dollars (GNI) as well.

However, development alone cannot explain all variation. In Latin America where seven
presidents4 have tried to extend the powers of the presidency and stay in power5 lower levels of
development could explain Ortega (Nicaragua), Correa (Ecuador) or Moraless (Bolivia) success in
dismantling checks and balances and extending their terms in office, but not Chvezs (See Graph
2). Similarly, higher levels of development could explain Menems (Argentina) failure, but less so
Zelayas (Honduras) or Uribes (Colombia) (See Graph 2). In other words, while important, level of
development does not fully explain democratic erosion in Latin America. Moreover, this structural
perspective does not give us any clue as to what are the mechanisms whereby erosion is achieved
or prevented.

Hugo Chvez (Venezuela), Rafael Correa (Ecuador), Evo Morales (Bolivia), Daniel Ortega (Nicaragua), Manuel Zelaya
(Honduras), Carlos Menem (Argentina) and Alvaro Uribe (Colombia)
4

These are the most important cases. Right now I have a survey underway that will try to figure out if there are
presidents who have tried to do the same in other countries in the region.
5

Alternative structural approaches suggest that mineral wealth hinders democracy. Oil
riches, for example, alleviate social pressures for accountability, strengthen the state repressive
apparatus, and depress democratizing social and cultural changes (Ross 2001). Recent analyses
posit that Chvez, Morales and Correa have used mineral resources to fuel their projects via
patronage (Hidalgo 2009; Weyland, Madrid, and Hunter 2010). While certainly oil and gas revenues
have allowed these presidents to buy support, mineral resources cannot completely explain
democratic erosion. Although it is not oil dependent, Colombia produces and exports as much oil as
Ecuador (Ross Oil and Gas Dataset). In fact Uribe had no problem buying civilian and military
support throughout his presidency. He used massive foreign aid to strengthen the army like no
other president and left office with 73% popularity (Caracol 2010). Moreover, Venezuela has been
oil dependent since the 1970s and yet democratic until the 2000s. Why didnt it erode earlier? Like
other structural explanations the mineral wealth thesis cannot account for the mechanisms of
erosion nor its timing. We need to incorporate actors into the model to attain explanatory
sufficiency.
A similar argument can be made about state strength. Presidents will be more likely to
undermine democratic institutions in weak states with governance problems (Mainwaring 2012).
Indeed, Uribe, Menem, Morales, Chvez, Zelaya and Ortega came to power at times in which their
countries had low governance levels (International Country Risk Guide) 6. However, this cannot
explain all the variation in the dependent variable. Among the cases that experienced erosion, only
Chvez came to power when the levels of governance were lower than the Latin American average.
Among the cases that did not experience erosion, only Menem came to power at times in which
levels of governance were higher than the Latin American average.

The ICRG indicator for Quality of Government is built by the Political Risks Services group
(http://www.prsgroup.com/Default.aspx) and found in the Quality of Government Data Set of the Quality of Government
Institute (http://www.qog.pol.gu.se/).It includes measurements for corruption, law and order and the quality of
bureaucracy but is unclear how is that it assigns values to each of these indicators.
6

.6
ARG

.4

VEN

BOL
COL

ECU
NIC
HND

.2

ICRG

.8

GRAPH 3
Governance (ICRG) at Time of Election for Cases of Possible Erosion

1990

1995

2000

2005

2010

years

ICRG at Election Year for Cases

Latinamerica ICRG

using ICRG Indicator for Quality of Government in QoG Dataset

In other words structural factors account for some of the variation in democratic erosion, but not
all of it. They seem to affect the likelihood that presidents will try to thwart checks and balances,
much more than they affect the likelihood they will succeed in doing so.
Some scholars have also focused on the importance of the international context for
democratization (Brinks and Coppedge 2006; Bunce and Wolchik 2011; Levitsky and Way 2010).
Powerful countries and transnational organizations played a key role in the third wave by creating
a supportive atmosphere for democracy. It is plausible that such an atmosphere has changed. On
the one hand, promoters of democracy in the region like the United States seem to have turned
their attention away from Latin America. On the other hand, Venezuela has become a black knight,
who actively supports authoritarian regimes like Cuba across the continent.
The international context has certainly shaped the way in which regimes turn authoritarian
today. Autocrats have learned how to play the international community. They have found ways to
concentrate power without breaching basic international democratic standards. It seems plausible
that the absence of interest from the US or the support Venezuela provides to presidents who have
tried to increase their powers and stay in office, has helped some governments do so. However,
these two factors cannot fully determine presidents success in dismantling checks and balances
7

and staying in power. Despite Venezuelas support and the US blind eye, Zelaya was not able to
change the constitution to allow for immediate reelection, and it seems that Cristina Fernndez de
Kirchner7 will not be able to do so either. In other words, while a permissive international
atmosphere aids these legitimate autocrats, it aids them all equally. Therefore, like the structural
theories discussed above, it cannot explain why some succeed and others fail.
Another argument commonly used to explain democratic breakdown suggests that mass
attitudes towards democracy have a big impact on regime and regime change (Inglehart and Welzel
2005). In a reformulation of modernization theory, Inglehart and Welzel suggest that the publics
post-materialist values increase the level of democracy. While they do not explicitly mention it, it
is possible that the opposite might happen as well. Changes in peoples self-expression values might
decrease support for democracy and cause democratic erosion It is not farfetched to think that at
times of crisis people will turn to strong leaders putting regime preferences aside (Levitsky 2000).
They will prefer unknown politicians who promise they will solve the crisis, over known politicians
whose track record suggests they might not be able to do so (Weyland 1996). Such an argument
could explain why is it that presidents who try to increase their powers and extend their stay in
office are elected. Survey data, however, does not support that assertion. If we compare the mean
support for democracy in countries in which presidents introduced reforms to increase presidential
powers and the length of their term in office, against those countries in which that did not happen,
we do not find a large or consistent difference in the mean support for democracy. (See Graph 4)8

Although it is not formally a case partly because its outcome is yet to be determinedCristina Frnandez de Kirchner
in Argentina is often seen as another example of presidents who try to increase their powers and extend their stay in
office. Between her and her husband, her peronista faction has been in power for sixteen years. Now she has run out of
reelections and, for a while, it seemed she would ask the Legislative to change the constitution in order to allow her to run
for a third time. Given that she does not have a big enough coalition in Congress it seems like she will step down after all.
7

The p-value of the mean difference in support for democracy between cases of erosion and cases of non-erosion is:
0.5913. It does not reach statistical significance.

2.4
2.2

2.3

(scale 1-3)

Mean Support

2.5

2.6

GRAPH 4
Support For Democracy in LA

1995

2000

2005

2010

Years

Cases
Latin America

Not Cases

Cases: Bolivia, Colombia, Ecuador, Honduras, Nicaragua, Venezuela.

Not Cases: All other Latinamerican countries.
Question:
1. For people like me it doesnt matter whether the regime is democratic or
authoritarian.
2. Under certain circumstances an authoritarian government is preferable to a
democratic one.
3. Democracy is preferable to any other type of government.

Institutional approaches suggest that institutions shape elites behavior. They reduce
uncertainty and provide incentives to cooperate with democratic rules (Aldrich 1995; Helmke and
Levitsky 2006; Magaloni 2006; Mainwaring and Scully 1995; North 1990; Przeworski and Maravall
2003). More specifically, institutionalized parties and party systems structure political competition,
make electoral politics more predictable, and legitimate democracy (Mainwaring and Scully 1995).
On the contrary, inchoate party systems fail to structure political competition, make electoral
politics predictable or legitimate democracy, thus allowing populist leaders with personalistic
projects like Chvez and Fujimori to attain office (Coppedge 200
e arano, and Pizarro eongomez 200

Mainwaring and Scully 1

Hawkins 2010 Mainwaring,

Morgan 2011 Seawright

2004; Tanaka 2006).

Without question, low levels of party system institutionalization increase the likelihood of
electing outsiders and mavericks (Dugas 2003; Mainwaring and Scully 1995; Tanaka 2006).
However party system institutionalization does not tell the entire story. Irrespective of failure or
success, almost all of the leaders mentioned above came to power in the midst of very weak party
9

systems. Even if we admit that low levels of party system institutionalization matter, these do not
explain why it is that some of these outsiders with populist projects successfully dismantled checks
and balances and others did not.
Other institutional arguments focus on the independence and strength of the high courts.
Colombianists have argued that a strong and independent Constitutional Court was essential for
Uribes failure to reelect himself for a third term (Garca and Revelo 2010; Garca 2009). Although
the high courts were a ma or obstacle to Uribes attempts to extend his powers and stay in office,
this is part of the outcome I am trying to explain. Other presidents faced somewhat strong
judiciaries at first, but successfully resorted to a mixture of formal and informal mechanisms to
decrease the courts ability to check them (Castagnola and Prez-Lin 2011; Sanchez Urribarri
2011). Uribe also tried to do the same, the question is: why wasnt he able to succeed?
Scholars have also paid attention to the role of agency in regime change. They argue that, for the
most part, transitions from and to democracy are elite driven (Bunce and Wolchik 2011; ODonnell
and Schmitter 1986). Short term explanations suggest that democratic breakdown is the outcome
of the strategic choices government and opposition make in response to crises (Capoccia 2001; Linz
1978; Valenzuela 1978). More long term explanations suggest that transitions from democracy are,
partly, the consequence of the ideas and attitudes elites have towards democracy (Berman 1998;
Mainwaring and Prez-Lin 2013). Like these approaches, I also emphasize the importance of
actors and their choices. More specifically, this paper argues that the choices the opposition makes
with regards to how it will oppose the president, matter for democratic erosion. Unlike Linz (1978)
or Capoccia (2001), however, I look at the long term consequences of these choices. I argue that the
mechanisms the opposition uses to fight the governments first constitutional reforms, while
inefficient at first can prove extremely important down the road. The course of action the
opposition chooses builds (or fails to build) institutional strength that will help them fight more
aggressive reforms some years later.
10

2. HOW TO PREVENT DEMOCRATIC EROSION:

THE IMPORTANCE OF USING INSTITUTIONS.

I understand the erosion of democracy as a type of regime transition, in which, over time,
governments gravely weaken formal institutions that check the presidents power, promote
horizontal accountability, and guarantee free and fair elections9. These presidents introduce minor
changes that increase the presidents legislative and non-legislative powers, and transform
electoral rules to extend the presidents term or allow for immediate reelections. While individually
minor, put together, these alterations not only hinder horizontal accountability but they tilt the
electoral playing field thwarting vertical accountability as well. They allow the president to build
artificial majorities, pack the courts, and overturn judicial and congressional decisions. They
effectively uncheck the executive, which in turn gets to manipulate elections (i.e. electoral laws,
campaign finance and media access) to such an extent that it becomes extremely difficult for the
opposition to defeat them. Eroded democracies are no longer democracies; not even delegative
democracies (ODonnell 1

4). They have lost their horizontal and vertical accountability, thus

becoming competitive authoritarianisms instead (Levitsky and Way 2010)

A key characteristic of erosion is, therefore, that it happens over time allowing the opposition to
respond. It is an incremental process, with a tipping point that moves the regime across the
authoritarian threshold. Accordingly, I argue that presidents ability to successfully introduce
constitutional reforms to dismantle checks and balances and stay in power depends not only on the
presidents civilian or military support, but also on the mechanisms used by the opposition to fight
the government early on in the process. While the larger project addresses both of these variables,
given the stage of the research and the weight that each of these has on the argument, this paper
will focus only on the second one.
Civil war, corruption and the like can certainly cause erosion if they are strong enough to push a regime outside the
democratic camp into the authoritarian camp. However, they do not necessarily cause erosion. If they are not serious
enough to push the regime outside the democratic camp (i.e. seriously hinder electoral accountability) then they might
decrease the quality of democracy but not necessarily erode it.
9

11

The Logic Behind Erosion

Political leaders are office seekers with policy interests (Aldrich 1995). The presidents under
study come to power in opposition to seated elites and contexts of crisis (i.e. low governance, low
economic development or violence). They face very weak governmental arrangements and thus,
have leverage for disruption (Skowronek 1993). In order to attain their policy goals, they try to
reform the constitution to increase the presidencys powers and reelect themselves indefinitely.
The opposition, in itself an office seeker with policy interests, wants to stop the presidents
reforms. It can do so either within existing institutions (i.e. competing in elections, within congress,
or the courts), or outside of them (i.e. via violence, electoral or institutional boycotts, strikes and
even coups). If the opposition uses the congress, elections or the courts, and avoids violence,
strikes, boycotts and coups, the government, which wants to keep a democratic appearance, has no
legitimate reason to crowd them out. Even if diminished, the opposition will keep some presence
in the legislature that will allow it to protect the very institutional resources the government is
trying to creep out.
If the opposition opposes outside institutions via boycotts, strikes and coups, however, the
government will have legitimate reasons to remove opposition leaders from office, prosecute, and
even jail them. The opposition will lose its presence in the legislature and with it its ability to
protect the few institutional resources it has left. Non institutional responses, unless successful, will
therefore weaken the opposition to such an extent that they will hinder its ability to stop more
aggressive reforms.
Erosion is incremental. The first set of reforms might hinder horizontal accountability, but are
not enough to thwart electoral accountability as well (i.e. skew the electoral playing field). They
might increase some of the presidents legislative and non-legislative powers, and allow him to
reelect once, but will likely fail to politicize state institutions or provide budgetary powers large
12

enough that would seriously uneven the playing field.10 The second set of reforms, on the other
hand, poses a more serious threat to democracy. They will enhance the presidents ability to
enlarge his majority in congress, fully undermine courts and congress, do extensive court-packing,
and further extend his tenure in office. They will allow the president to politicize and deploy state
institutions that deal with electoral rules and media access and enhance his budgetary powers. The
president will be able to run for a third term and in biased playing field, will be almost impossible
to defeat.

Opposition at the Margins

Unless completely controlled by the government, elections, courts and legislatures are
competitive arenas. Regardless of how little presence the opposition has in them, these bodies
provide spaces for the opposition to challenge, debilitate, and, in some cases, defeat incumbents
(Bunce and Wolchik 2011; Levitsky and Way 2010). As long as the opposition keeps some presence
in the legislature, it can delay, modify and, under very specific circumstances even stop government
projects (Levitsky and Way 2010). They can tame and slow down reforms that would allow the
government to leave the presidency completely unchecked, and extend its stay in office indefinitely.
It is often assumed that small oppositions cannot do much in Congress. Being a minority, they
seldom have the numbers they need to pass legislation (Morgenstern, Javier Negri, and Prez-Lin
2008). However, recent analyses have shown the importance of legislative procedure and the tools
it provides to obstruct the legislative process (Hiroi and Renno Forthcoming). Obstruction, scholars
argue, lengthens the deliberative process, which does not sit well with the government. Some
legislatives require certain bills to be fully debated by the end of one legislative term. In this case,
delays in a bills transit put such legislation at risk. Even if that is not the case, longer debates also
allow for better public scrutiny and increase the probability that the bill will be modified by friends
Levitsky and Way code a playing field as uneven if: 1) state institutions are widely politicized and deployed by the
incumbent, 2) there is uneven media access or 3) there is uneven resource access. (Levitsky and Way 2010, 368)
10

13

and foes, thus, reducing the benefits the government will accrue from it (Dring 1995; Hiroi and
Renno Forthcoming).
Accordingly, even if too small to sink the presidents reforms, oppositions facing popular
presidents attempting to increase the powers of the executive and extend their time in office, while
in Congress, have some game. As long as they keep their seats they can use rules of procedure to
lengthen the deliberative process and with it, increase public scrutiny and open up spaces to
modify, and even stop some bills. Although individually harmless, this type of obstruction will delay
the presidents agenda enough to protect institutional resources such as courts and oversight
agencieswhich will prove useful when more aggressive reforms come along.
Accordingly the opposition can use rules of procedure to purposely delay the presidents
agenda, try to mollify some of the bills and generate procedural mistakes. These strategies will, in
turn, a) tone down the presidents agenda, b) increase public scrutiny and with it the pressure to
strike down the project, or c) will provide elements that the courts, during judicial review, can
latter use to rule against these laws. In the following section I will use the case of Colombia to show
how some of these strategies work.

3.

TO LOSE IS TO WIN A LITTLE:

HOW THE OPPOSITION PREVENTED DEMOCRATIC EROSION IN COLOMBIA

Alvaro Uribe Vlez attained power in the midst of a serious security and institutional crisis. At
the time he was elected, the FARC (Revolutionary Armed Forces of Colombia) controlled a
substantial portion of the country. The failure of president Andrs Pastranas (1998-2002) peace
process, not only discredited the guerrilla, but more importantly all those who had ever supported
a negotiated alternative to end the armed conflict (Gutirrez Sann 2007) (i.e. any politician
affiliated to the traditional parties). In that scenario Uribes vote intention which was only 18% in
August 2001 rose to 39% by January 2002 (Semana 2002a) and 49% a little before the presidential
elections (Semana 2002c). With a personalistic iron fist and anti-politics (anti-politiquera)
14

platform he won the presidential elections in a spectacular first round (53% of the votes casted)
against the traditional parties that had controlled the political arena since the early 1900s.
Glued by the presidents popularity, Uribes coalition in Congress included the Conservative
Party, several smaller parties and members of the Liberal Party that broke with their leaders. Uribe
had the support of approximately two thirds of the Senate and three fourths of the Lower House
(My own calculations based on data from the National Registrar). The opposition did not have
enough seats to reach one third of the seats in the plenary of either chamber11.
During his first term Uribe introduced a series of constitutional reforms that sought to increase
the power of the executive vis--vis the legislature and the courts, as well as to extend his time in
office. The same day he was sworn president he proposed a referendum that to reduce the size of
congress, make it unicameral, impeach the recently elected congressmen and call for new legislative
elections (Gaceta del Congreso 323 de 2002). Several months later he introduced a bill, with the
goal of curtailing the Constitutional Courts judicial review powers (Gaceta del Congreso 458 de
2002) as well as a reform that made permanent some powers of decree that would normally have
time limits (Gaceta del Congreso 174 de 2003). Uribe ended his first set of reforms with another
change to the constitution that allowed him to run for a second term (Gaceta del Congreso 102 de
2004).
Once reelected, Uribe had a better hold of Congress. His supporters had introduced a reform
that forced party members to vote with their party (Law 974 of 2005) Given that the president
controlled the largest coalition in the legislature, and had distributed government positions among
the leaders of most of the parties that composed it (Ungar et al. 2010), this law gave him enormous
power over legislation. During his second term, the president introduced two reforms that sought

In the committees the numbers were slightly better, although the opposition never had a simple majority. In the Senate
Committee for Constitutional affairs, the opposition had 4 seats out of 19; in the House Committee for Constitutional
affairs it had 10 out of 35 seats.
11

15

to limit judicial review as well as the ability of the Supreme Court to investigate congressmen. 12
(Gaceta del Congreso 92 de 2008, Gaceta del Congreso 654 de 2008). He also used his majorities in
congress to coopt courts and oversight agencies. He intervened directly or indirectly13 in the
election of Attorney General, the Ombusdsman and most members of the Constitutional Court
(Garca 2009)..
Towards the end of his second term, Uribe called for a referendum to change the constitution in
order to be able to run for a third term14 (Gaceta del Congreso 623 de 2008). Although the Uribistas
majorities pushed the project through congress, it was ruled unconstitutional by the Constitutional
Court one month before the presidential campaign was set to begin. Without time to introduce any
other reforms to change this outcome, Uribe accepted the ruling, stepped down and gave way to a
newly elected president15. Had it been accepted, Uribe would have been able to rule for another four
years. With 8 years in office and four to go he would have increased his hold over congress, fully
coopted courts and oversight agencies, and skew the electoral playfield (Garca and Revelo
Rebolledo 2009).16

This was especially important during the parapoltica scandal in which 0% of the presidents supporters in Congress
had open investigations in the Supreme Court because they had received support from paramilitary groups to aid with
their campaign.
12

For those offices for which the government was able to present lists, the president would present lists that made it
impossible for congress to choose any candidate but the one closest to the government. For those offices for which the
president could not present lists, the government still used its influence over congress to push either for the candidate
deemed closest to the government, or new more amenable lists (Rubiano 2009).
13

The referendum was proposed by Uribes closest advisors and coalition members. Uribe never publicly accepted he was
behind this reform. However, the fact that he never talked against and called for emergency sessions when it seemed that
Congress wasnt going to have enough time to discuss it, suggests that he was behind it.
14

Since he stepped down, Uribe has kept his public appearances. He has repeatedly asked for a Constitutional Assembly,
and now that he and his movement won 19 seats in the Senate, he will ask for a constitutional reform that will dismantle
the Constitutional Court.
15

esides the constitutional reforms Uribes government used informal means to harass his opponents. In more than one
occasion the president publicly defamed members of the courts, opposition parties and NGOs as guerrilla members or
terrorists. His team also used the State Police (Departamento Administrativo de Seguridad DAS) to illegally intervene the
phones, emails and mail of opposition members, court magistrates and journalists. This information was intended to file
false charges against these people. Although the investigation has not been able to tie Uribe himself to these irregularities
the DA has pressed charges against important members of his administration including his chief of staff (Bejarano 2010;
Morris 2010).
16

16

In sum, throughout his presidency Uribe repeatedly threatened checks and balances. In the
eight years he was president he introduced several reforms that sought to increase the executives
control over congress, courts and oversight agencies, and weaken anybody who opposed him.
Despite these attempts, and contrary to what was happening in other countries in Latin America,
Uribe was not able to fully undermine democracy. The work of opposition members, who
repeatedly opted for institutional responses to the governments attempts to thwart checks and
balances, eventually paid off. The opposition kept its seats in congress throughout both terms and
used rules of procedure to obstruct the legislative debate. More specifically they strategically
extended a bills transit through congress, and denounced and created vices of procedure. As shown
below, the delays opened up windows to a) mollify otherwise radical reforms and b) increase public
scrutiny. The procedural vices, in turn, facilitated judicial review by providing arguments to rule
against some of these reforms. Together these strategies slowed down the process by which the
government meant to weaken other branches of government and stopped Uribe from extending his
time in office beyond a second term.
Given the stage of this early stage in my research I will focus on three examples to illustrate the
main causal mechanism suggested by the theory: the Referendum against Bad Politics and
Corruption (2002), the Antiterrorist Statue (2003) and the Reelection Referendum (2009). The
three bills are examples of Uribes attempts to increase his powers and extend his time in office.
Had any of these passed as proposed by the president they would have weakened the legislature,
increased the presidents powers of decree and allowed him to govern for 12 years.

Small Changes, Big Outcomes

The first bill Uribe Vlez sent to congress was a Referendum against ad Politics and
Corruption (Referendo contra la Corrupcin y la Politiquera). The original version called for a
smaller unicameral legislature and mandated new legislative elections. It also sought to make roll

17

call voting compulsory for everything but procedural matters and increased the causes that would
remove congressmen from office or disqualify them from participating in politics. It also proposed a
severe abolish regional oversight agencies as well as other random policies that went from freezing
public servants salaries to banning mandatory military service in Colombia (Gaceta del Congreso
323 de 2002). The referendum also included very suggestive introductory paragraphs to each of the
question, as well as a final question that asked voters if they wanted to vote yes or no for the
entire set of questions, instead of voting each one individually. The idea was to use Uribes
popularity and momentum to push the referendum through Congress and get people to the polls
(Bermdez 2010).
Before it became law the referendum had to go through three separate debates in Congress.
One with a joint session of the House and Senate Committees for Constitutional Affairs (from
September 25, 2002 to October 15, 2002), a second one in the Plenary of the House of
Representatives (from October 28 through November 19) and a third one in the Plenary of the
Senate (from November 25, 2003 to December 5, 2002). Once the law had successfully passed these
debates, it had to be reviewed by the Constitutional Court which approved it on July 2003 and
moved into the National Registrar who scheduled the vote for October 2003.
Uribe wanted a speedy process (Bermdez 2010). Besides improving security, this was one
of his most important campaign promises. Having sold himself as a do it kind of president, aware
of the electoral advantage that his victory provided and the fact that such momentum would run
out fast, government and opposition were aware that, in order to work, this referendum needed to
happen fast17. For referendums to become law, more than half of the registered voters must vote.
Uribe wasnt sure his popularity would be enough to meet the turnout requirements. This is why he

In July an internal poll revealed that 76% people had a favorable image of the president and 81% where willing to
support it (Bermdez 2010). Throughout the first year of the Uribe administration those numbers dropped. On January
2003 a survey conducted by important news outlets in the country revealed that the president had a job approval of 68%,
and only 46% of the respondents were willing to support the referendum. On July those numbers got even worse.
Presidents ob approval had drop to 4% and only 43% of people said that they would vote for the referendum.
17

18

was determined to take advantage of his post-election momentum to see the referendum enacted
into law (Bermdez 2010).
From the beginning, the Referendum had all the support the government could provide.
Cabinet members attended most of the congressional meetings and were willing to answer most of
the questions asked. They went back and forth with the governments parliamentary coalition at
the presidential palace and made it evident all throughout the process that the president was
personally invested in having this bill passed. In Colombia the presidents support for a bill is a
significant predictor of its success in Congress (Crdenas, Junguito, and Pachn 2006; Milanese
2011). Against the majorities, the resources and the popularity of the president there was little the
opposition could do to fight the bill. Still on each one of the debates they demanded that the project
had to be debated and voted question by question using roll call voting each of the times (Gaceta del
Congreso 01 de 2003, Gaceta del Congreso 36 de 2003).
Roll call voting is often used to stall18. In this case, the request required roll call voting for
each of the sixteen questions of the referendum, and the amendments to each one of them. As a
result getting the referendum through Congress took almost twice as much time as it would have
taken otherwise. Whereas committee or plenary meetings usually take one to four sessions to
approve or reject a bill, it took the referendum nine sessions to pass in the House and Senate joint
committee, 8 sessions to pass in the plenary of the House and 6 sessions to move through the
Senate.19
Both friends and foes of the project used this time to change the bill from how it was
originally proposed. This was so evident that halfway through the process, the president threatened
to circumvent Congress and collect signatures to present the referendum directly to the people
According to Congresss rules any congress man can ask to vote a projects articles separately using roll call voting.
Although the president could disagree, the request has to be put up for a vote allowing time to speak against or in favor,
which would delay the meeting anyway (Law 5 of 1992, articles 130 and 134)
18

There is no official measure of how much time does it take to push bills through Congress. This estimate is based on my
observation of other projects, as well as the steps to be fulfilled in each debate: presentation of the bill, debate of the
presentation, debate and vote of the articles in the bill as well as any amendments there might be for them.
19

19

(Semana 2002b). Although congress did move faster from that point onwards, opposition
congressmen managed to get what they wanted. The referendum as it left the legislature no longer
proposed to call for immediate congressional elections, it did not call for a unicameral the
legislative and proposed to reduce congress only by 20% (30% less than the original proposal had
envisioned). Not only did it lost one of the bills that promised to increase turnout (Bermdez 2010),
but most importantly it no longer curtailed congress power as much as it did before.
Although the Constitutional Court further modified the referendum it did not allow the
inductive introductory paragraphs and prohibited the question that would have permitted voting
all the questions at oncehadnt the referendum changed in Congress, udicial review wouldnt
have been enough to reduce the scope of the bill. For referendums, the Constitutional Court can
only rule on matters of procedure. Had it been approved in congress as it was proposed by the
President the Court wouldnt have been able to rule against some of its most radical proposals20.

Procedural Vices
In Colombia the Constitutional Courts udicial review is limited. In the case of constitutional
reforms, it cannot judge the bill based on its content, but only on the appropriateness of its design
and congressional debate (Article 241, Constitution 1991). Opposition congressmen are well aware
of that and use it to their advantage. As the Congress Gazettes suggest it is often the case opposition
members will denounce some vice of procedure and ask the chair of the House or Senate to include
such complaint in the official records. Court staffers believe some times these complaints are
meant only to alert them about the vice so that justices can use those arguments to rule against the

The referendum was latter put up for a vote. The opposition called and campaigned for abstention. The idea was to
thwart the presidents ability to get the turnout he needed for the referendum to be valid and they were successful at it.
Some analysts suggest that, had the question of impeaching congress and reelecting a new one been there, Uribe might
have gotten the votes he needed pass the referendum.
20

20

bill when they review it21 (Authors interview January 17, 2014). Other congressmen go even
further. As suggested by experts in Congress, in Colombia, creating vices of procedure is not hard.
Congress rules of procedure (Law 5 of 1992) are complicated and Committee and Plenary sessions
are often chaotic; it is not difficult to make mistakes (Authors interview November 20, 2013). In
this sense, vices are easy targets for weak oppositions.
The Antiterrorist Statue (Estatuto Antiterrorista) was a bill introduced by the government in
2003. Overall it sought to make permanent some powers of decree which, under extraordinary
circumstances and mandatory judicial review, allowed the president to suspend certain civil
liberties for a limited amount of time. Specifically the president was asking Congress to a) allow
members of the Armed Forces to work as judicial authorities aiding in the recollection and analysis
of evidence related to terrorism in certain areas of the country, b) allow raids and detentions
without court orders in cases of suspected terrorism and c) institute mandatory censuses in
regions with frequent terrorist22 activity (Gaceta del Congreso 174 de 2003). Had it been
approved this bill would have effectively unchecked the president; it would have removed the time
limit and the judicial review mandatory for decrees the president signs using emergency powers.
Before it became law, the Antiterrorist Statute had to go through eight debates (two in the
Senate and House Committees for Constitutional Affairs, and two in the House and Senate
plenaries) which was no problem since the government had comfortable majorities to see this law
through. Security is a salient issue in Colombia and Uribes iron fist policy was at this time popular
one. Coalition congressmen had no reason to split over this statue and the opposition was no
serious adversary.

Colombias Constitutional Court is known as an activist court: usually inclined to protect human and socio-economic
rights and civil liberties (Uprimy Yepes 2003). As most high courts, however, without the power of the purse or the sword
the Constitutional Court is relatively vulnerable to powerful executives and less inclined to rule against them. As will be
shown in the next two sections, having procedural vices to pin the decision on made it easier strike down the presidents
bills.
21

As was noted throughout the debates one of the largest problems of this bill was the lack of definition of the term
terrorism. Implicitly, though, it was clear that Uribe meant to use these tools in the fight against the FARC.
22

21

As expected, the bill went through five debates without a problem. It was introduced in
April 2003 and by late October it had reached its sixth debate. On November 5, in the second
session of the sixth debate, in the middle of a chaotic roll call voting for which there was no quorum
(since several congressmen had left the room) the President of the House closed the session for that
day. Mara Isabel Urrutia, an opposition congresswoman, appealed the decision based on the fact
that the speaker hadnt formally brought the roll call voting to a close. The president put the appeal
up for a vote and the chamber voted to keep the session open. Immediately afterwards Joaqun Jos
Vives (opposition) claimed that the results were in, the bill had not pass and the session was closed,
therefore any other vote or debate from that point onwards violated procedure. The president,
however, did not buy into this. He reminded everybody that the session was open and called for a
vote again. This time congressmen had come back into the room and the bill was passed (Gaceta del
Congreso 617 de 2003, pg 16). Congressmen from the opposition claimed that there had been a vice
of procedure, left a formal note of it on the record and left the chamber (Gaceta del Congreso 663 de
2003, pg 11).
Although the bill followed its regular path and was finally approved, the procedural vice
was restated during the seventh and eight debate in the Senate (Gaceta del Congreso 707 de 2003,
Gaceta del Congreso 03 de 2004, Gaceta del Congreso 04 de 2004), where opposition members
repeatedly accused the president of the House of closing the debate in the middle of the roll call
voting just to avoid sinking the project. These arguments were borrowed by different
unconstitutionality lawsuits against the bill (Constitutional Court: C-816-2004). At the end the
Constitutional Court finally ruled that, in fact there had been a vice of procedure and that it was no
way to repair it. As a result it declared the bill unconstitutional in its entirety.
It is worthwhile mentioning that the work of opposition members was twofold. On the one
hand they used a chaotic situation in order to create a vice of procedure. On the other hand they did
the due diligence of noting it in the record as such. In this sense, congressmen provided key legal
22

resources for civil society organizations whose job is to supervise the legislation that goes through
Congress and present lawsuits whenever they deem it inadequate. As a member of one of these
organizations noted without these congressmen it would have been hard for them to realize there
had been a vice of procedure. Unless you are present in the congressional session it is hard to see
what was going on. Gazettes or videos only show bits and pieces of what happens inside these
debates and regular citizens and NGOs do not have the resources to attend every single debate.
Members of the opposition in Congress are importantJudicial NGOs do not
have the resources to follow the debates so, most of the times, is the opposition
congressmen the ones that help (Member of Judicial NGO, Authors interview
December 19, 2013)
Unless it is duly documented and/or the relevant parties are tipped off, it is hard for those
presenting the lawsuit and those judging it to notice the vice of procedure. In this case, the various
formal notes in the record were essential for the NGOs and interested individuals to build lawsuits
against the Statute, as well as for the justices to rule against it.

All forms of struggle: delay, denounce, document

The bill of referendum that would have allowed Uribe to run for a third term was dubious at
best. During its transit through congress the opposition used rules of procedures to delay the bill,
identify and prove legal issues with it. Whereas the complaints of the opposition did not have a
strong impact inside congress and the bill was approved, they did have an impact outside of it. Not
only did they raise awareness and help gather support against the initiative, but they also provided
important information that the Constitutional Court latter used to rule against it.
It took the referendum a year to go through the four congressional debates required. The
opposition was partly responsible for some of the delay (Authors Interview Nov 2 , 2013). During
the first debate, in the House Committee for Constitutional Affairs, they were able to postpone the
session a couple of weeks while they presented evidence that there had been problems with the
23

money and required that Luis Guillermo Giraldo (head of the Reelection Committee), the National
Registrar and the president of the National Electoral Council (NEC) appeared in front of the
Committee for the debate to move on (Gaceta del Congreso 55 de 2009, pg 3). In the second debate,
in the Plenary of the House, they almost sink the project. The debate was scheduled for the last day
of the legislative term and they asked to do roll call voting even for the most simple procedural
matters, voted ten impediments23 independently, and even asked for a minute of silence on behalf
recently deceased fellow congressman (which was duly voted of course) (Gaceta del Congreso 77
de 2009).
Hadnt Uribe extended the legislative term by decree until the next day, the government
coalition wouldnt have been able to approve the pro ect in this term, and would have had to wait
until the next one on February of 2009 which would have put the entire project at risk. The
referendum had serious time constraints. If Uribe was going to run for a third term he had to
announce his candidacy six months before the elections (May 2010). This meant that the bill had to
make full transit through congress, be reviewed by the Constitutional Court and the referendum
had to be scheduled before December 2009. Postponing the vote at the Plenary of the House until
February would have made it impossible to reach this deadline..
The opposition was able to further delay the project when it got to the Reconciliation
Committee. Because House and Senate had approved different versions of the referendum, they had
to create a committee to reconcile the projects. Who sat in this committee was essential both for
government and opposition. They both launched a strong political and judicial battle around the
topic that pushed it into the next legislative term (July 2009) (Paredes 2010). It took almost a
month to get the committee to agree on a version. On top of that, in the plenaries of House and

When there is a conflict of interest, to avoid penalties, Congressmen can ask the floor to declare them unfit to
participate in the debate. If the request is denied, the Congressman can participate in the debate and cannot be penalized
for it.
23

24

Senate, the opposition once again used roll call voting for every matter, including 50 impediments
to delay the last debate a couple of days. The Referendum was finally approved in September 2009.
The delays had important medium term consequences. The opposition had skillfully find
irregularities with the funds used to finance the gathering of the signatures required to present the
bill of referendum.
I started with the pictures where you could see DMG24 trucks taking the
papers and stuff [of the referendum material]I managed to divide the evidence [of
irregularities] into doses to keep the debate aliveDuring that time we started to find
the book keeper and the money they have used, and the money they were declaring
and how they were playing with the rules (PDA Senator, Germn Navas Talero,
Authors interview November 19, 2013).

By law any popular initiative such as a referendum can only receive three million
Colombian pesos from each donor. According to the books only half of the money used to fund the
gathering of signatures for the referendum fulfilled that requirement, and because of that the
National Registrar had certified the validity of the signatures but not the legality of the money used
to pay for the campaign. Since the beginning opposition congressmen argued that without that
certification, the debating the project generated a vice of procedure and put congressmen at risk of
committing perjury. The fact that the bill took so much time allowed them to collect enough
evidence to support that claim and introduce lawsuits against the organizers of the referendum and
the congressmen who had supported it. The requests for information and lawsuits forced both the
National Registrar and the National Electoral Committee to produce documents publicly stating
that there was money used to fund the referendum that hadnt been accounted for and therefore
the bill did not fullfill all the requirements to go to congress. They also created a public scandal that
eventually forced the head of the Committee president of the U. Party as wellto resign to the

DMG was a company based in the south of the country, at the time the referendum was debated the company faced
charges for money laundering and illicit money catching.
24

25

party, and disqualified some of the government congressmen from participating in the ratification
process in the reconciliation committee (Paredes 2010).
The delays proved useful to change minds and hearts as well. Not only did the complaints
received some eco in the press and to some extent backed up the claims of those who saw the
referendum as an attempt on the part of the government to concentrate power and maintain Uribe
in office, but they also gave time for serious scandals to surface.
despite being a minority we managed to push forward the decision by eight
months, circumstance that I think at the end helped because these eight months
allowed several corruption scandals to surface and changed peoples perceptionthat
at least showed that not everything had been that good from the point of view of
Uribes government (Cambio Radical House Representative, Germn Varn, Authors
Interview November 26, 2013).

Two scandals were particularly important at this stage. A little after the debate of the
referendum started, DMG a Colombian company based in the south of the country was accused of
illegal money catching and money laundering. Although the government intervened and disbanded
it, it was later found that this company had aided the recollection of signatures for the referendum.
Not only did opposition congressmen found pictures of DMG trucks helping transport signature
forms, but David Murcia Guzman in an interview confessed he had given five million pesos to the
Reelection Committee (Paredes 2010). The second scandal that hindered the presidents public
image was one related to state subsidies to Colombian farmers. Even though the subsidy was aimed
to poor farmers, it was revealed in October 2009 that there were several irregularities, not the least
of which was the fact that the Agriculture Ministry had given several millions of these subsidies to
large landowners who werent supposed to receive them.
.Both the scandals and the congressmen complaints strengthened the opposition and
attracted those who, despite being Uribistas, were hesitant about the project. In fact, a after the
referendum finished its transit through congress, partly supported by the fact that there was
26

something fishy about it, a group of uribistas and non-uribistas, united against the bill. Together
with some media outlets (Semana.com, La Silla Vaca), they used creative campaigns to ask the
Court to rule against the project (Authors Interview December 5, 2013). Although this show of
support didnt influence the ustices choice it did make them feel more comfortable when they
ruled against the bill (Authors Interview January 20, 2014).
Finally the oppositions parliamentary tactics were instrumental in warning those in charge
of judicial review about possible vices in the law. Not only the gazettes, but every lawsuit against
the project talked about the irregularities and specified how is that these constituted a vice of
procedure. This last part is extremely important. The Constitutional Court can only review
referendums regarding vices of procedure. Even though some magistrates claim that there are
limits to what constitutional reforms can change (and in some cases they have ruled against reform
initiatives for this reason) this is a controversial theory25 which often divides the Court (Authors
interview December 10, 2013). It is way easier and safer to rule on vices of procedure. Not only is
the court more likely to agree on these vices, but they are more straight forward and hard to argue
against, which is especially important when the bill, as was the case with the referendum, is backed
up by a popular president with considerable popular support (Gibson 2007). It is hard to say
whether the Court would have rule against the referendum if there hadnt been any vices, but
probably the decision would have been a lot harder to make than it was with the vices (Authors
interviews December 10, 2012 and January 17, 2014).. In that scenario a ruling against the
referendum would have weakened the Courts prestige and made it more vulnerable vis--vis a
powerful president with the resources to ignore its decision, retaliate and punish the justices.

The substitution theory suggests that the Constitutional Court can rule on the content of constitutional reforms
whenever this content threatens the pillars of the 1991 Constitution. The idea is that only a Constitutional Assembly is
empowered to replace the Constitution. Whenever a constitutional reform threatens the main pillars of the Constitution,
Congress and the people are overstepping their boundaries and therefore there is a vice of procedure (of competence).
Although it is broadly accepted among certain academics, lawyers and justices, this theory is still controversial and
important magistrates, lawyers and academics still disagree with it.
25

27

By the time the Constitutional Court reviewed the referendum it was clear that there was
something wrong with campaign to collect signatures. The fact that these problems had been duly
noted in the Gazettes, gave the Court reasons to go beyond the normal review process and ask for
documentation about the bill before it reached Congress (Authors interviews December 10, 2012
and January 17, 2014). This review suggested that the referendum had been illegally funded. More
specifically, the Court found out that the Referendum Committee had received loans from a nonprofit Uribista foundation, which was getting its money from large companies. The donations they
gave matched the credits this foundation made in favor of the Referendum Committee. In other
words, the Committee was using the non-profit to receive larger amounts of money than it was
allowed to (Constitutional Court C-141-10).
The Court ruled against the referendum on February 26, 2010 (only one month before the
parliamentary elections, and three before the presidential elections). Although the opposition in
Congress had not been able to stop the project in the legislature, delaying and denouncing had
proved fruitful. Not only had the Court used their arguments to rule against the initiative, but the
delays had left Uribe no choice but to accept the ruling and move on. There was no time to
introduce any other reform and the Courts decision was endowed with an aura of irrefutable legal
legitimacy.
4. CONCLUSION: EARLY INSIGHTS FROM VENEZUELA
As shown above, even if they are facing a charismatic president with popular support,
oppositions are not powerless to stop democratic erosion. As long as they keep their presence in
congress they will be able to protect the very institutions the president is trying to creep out. In
Colombia the opposition repeatedly used rules of procedure in order to delay, transform and stop
bills aimed to undermine checks and balances and extend Uribes time in office. Even though the
government was able to push most of these bills through Congress, the oppositions strategies
helped mollify and stop some of them. Institutional alternatives not only allowed the opposition to
28

keep their legitimacy, but they also helped tame the Presidents pro ect and eventually stop more
aggressive reforms.
Preliminary findings in Venezuela suggest the same. Most academics and politicians agree that
even though the opposition was weak at the beginning of Hugo Chvezs presidency, it wasnt until
2005 (seven years after Hugo Chvez attained power) that they lost all control over congress and
oversight agencies. Before then the opposition successfully managed to obstruct and delay the
presidents projects using rules of procedure that slowed down what would have been a very rapid
overhaul otherwise (Authors interview March 3, 2014).
Indeed, the evidence gathered so far suggests that despite Chvezs attempts to control courts
and oversight agencies the opposition managed to keep some pockets of support inside the Courts
(Tribunal Supremo de Justicia) and the National Electoral Council (Consejo Nacional Electoral).
Hadnt it been for the coup in 2002, which reduced their legitimacy, the strike in 2003 which cost
them their influence over the petroleum company and the election boycott in 2005, which led to a
Congress a hundred percent chavista, they would have had leverage to protect and increase these
pockets of support. Had the opposition hanged long enough, an interviewee claims, they would
have even won the presidential elections of 200 (Authors interview March 20, 2014).

29

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