Federal University of São Carlos

Center of Education and Human Sciences Department of Social Sciences Program of Post-Graduation in Political Science (Doctorate) Student: Mariele Troiano - email: marieletroiano@hotmail.com Financial support given by: São Paulo Research Foudation (FAPESP)

Brazilian constitutional process of 1987-88 and the production of a public policy: a necessary relationship, although a difficult dialogue.

Abstract: This research aims to understand the relation between the studies about Brazilian Constitution and Public policy. The Brazilian constitutional process of 1987-88 was influenced by a context of economic changing, social and political majority, of the entire society, and by a set of rules that defined the ways to those decisions and interests that would pervade. It appears that the National Constituent Assembly (NCA) has ensured the participation and representation of various sectors of society, in the formulation of new consensus contingent of changes and responses to social demands. Therefore, the inclusion of public policy was inevitable for a future project and a response to social demands. This paper points to possible claims that are in many public policies incorporated in the Brazilian Constitution, justified by the objective of the constituent process. The analysis of public policy in Constitutions must also consider the political and economic context in which it appears. With the NCA, for example, we can illustrate the limited relationship between actors and institutions in the definition of public policy and constitutional content. Furthermore, this article intends to draw attention to an unexplored field: the effects of institutions on public policy. Public policy can directly reach and influence actors and institutions by tunneling resources, influencing public opinion and changing collective consensus. Thus, public policy can also be thought as institutions. Studies on the production of public policy lead us to complex questions about citizenship formation and execution of the democratic system. As far as the methodology, it was used the minute of the National Congress, literature review and press materials available at the Senate’s site. Keywords: Public Policy. Constitution. National Constituent Assembly.

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Introduction

The 1988 Constitution and public policies comprise an extremely

important debate, and at the same time not studied enough in Political

Science. At first, it is possible to notice a mismatch between the themes that

form the debate: on one hand, there is the Constitution as the state

apparatus, defining universal policies; on the other hand, there are policies

too, that are configured in accordance with the individuals, their decisions and

preferences. What seems contradictory, in a second stage, for it

demonstrates a particular connection based in the notion of representation

embedded in the constitutional process and the democratic opening. Thus,

the belief that the Constitution is an instrument of state action is completed

when inserting the notion of rights, proving a concrete reference to the content

of the Constitutional Charter.

After the 2nd World War, the Constitutions approached increasingly

this format when the "wave" of democratization, identified by Huntington

(1991), was largely coincided with the moments of constitutional processes

presented by Elster (1993). In this context, the aim of this paper is to present;

in general, the relationship between the process of constitutional formulation

and the production of public policies as a result of processes of institutional

change and democratization. I have drawn on the notion that the formulation

of a Constitution is grounded in a reckoning with the past and a future project

of the politics making inevitable the inclusion of public policies. As specific

objectives, this work aims to point to the influence of actors and institutions in

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the formulation of public policies based on the actor’s performance and

business organizations in 1987-88 Constituent.

Among the few works found on the constituent process and public

policy, the focus is given to the larger themes of health. It is possible an

explanation for the health sector, for it was during the National Constituent

Assembly (NCA) that the Unified Health System (as known as SUS) had been

articulated and shaped its decentralized design, allowing the identification of

the stages in an easier way of the policy public cycle, their actors and their

problematics. Another justification may be submitted from the superficial

relationship made between public policy and social policy. But, categorically, it

should be noted that public policy is not a synonymous to social policy. A

social policy is one of the possible types of public policies. Generally, this

conflict is dragged from the emergence of so-called State of Social Welfare

(Welfare State) who cared about efficiency and not with the process and

implementation of policies developed to specific sectors of the population1.

So, to start the discussion proposed in this article, some edges must be

trimmed. In the first section, I work with the concept of public policy and,

briefly, make a specific analysis of the literature on public policy. In the

second section, I present a general overview of the constitutional process of

1987/88 justifying the inclusion of public policies in their composition. In the

1 After the disasters of the Second World War, Western Europe, found itself in the policies of the welfare state the solution to the need for socioeconomic security services. Welfare State (WFS) or State welfare is fundamentally characterized by the transformation of the relationship between the state and economy, manifested in the emergence of national, public or state-regulated. Through government policies that promote direct impact on the well being of citizens, such as medical, social and social security. This was implemented in different proportions, as distinct contexts in different countries of the world. There is a large literature concerned with the production engine of WFS goal and the factors responsible for their development, as well as discussion of whether or not a sometime State Welfare in Brazil.

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third section I demonstrate the influence of actors and institutions in

formulating constitutional and, hence, the production of public policies. I

reserved the last section for the final remarks, presenting a possible research

agenda and confirmation of my initial proposal.

1. Public policy makes politics: definition and presentation of the theme2

The literature that studies public policies in Brazil is relatively recent. In

Brazil, studies about public policies have emerged from the first concerns

about budgets and policy implementation. Fundamentally, the Brazilian

scenario of the 1980s was illustrated by the oil crisis, tax breaks, low

economic growth, inflation, external debt, and institutional change. Thus, the

institutionalization of the field of Brazilian knowledge can be considered retard

in relation to the North American countries and Europe, which included much

earlier studies on the action and role of the state, training courses for public

managers and expertise in public policy3. Consequently, the set of authors of

thematic references in its largest number is not composed of Brazilians.

Nevertheless, existing studies in Brazil are punctual and specific to certain

stages of the production of public policies. These, for the most part, are

studies based on specific sectors of society and studies that use the public 2 This phrase refers to the maximum provided by the author Theodore Lowi (1964; 1972). With this statement, Lowi interpreted that each type of policy is different form of support and rejection, in addition to disputes over their decision go through different arenas. Return it as part of my argument interconnection between the definitions of public policy and politics. 3 There is no consensus in the emergence of policy studies as a science. However, it is known that the first concerns the practicality and policy development emerged in the United States with the first theorists of Scientific Management: Taylor and Fayol, driving the emergence of Public Administration. However, it was in 1950, with Laswell, that the pursuit of application of models and methodologies to address issues related to the actions of the government was institutionalized. While in Brazil, the area was developed along with the field of Political Science, and the vision macropolitics, with analysis of the role of the state. Thus, it is an area in permanent construction and institutionalization process started in the 1980s, a period of institutional transition.

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policy only as methodology. Thus, it can be stated that in Brazil, there is an

urge for an overcoming and a development of the theoretical field, systemic

and comprehensive studies about public policies, as well as a conceptual

increase.

Nonetheless, the issue is not suffering from lack of endorsements from

the political discourse media to academic studies; public policy is one of

themes that pervade in many discussions. This breadth is reflected at the

crossroads of various analytical models and theories in the construction of its

field. The delimitation of the field or multiple fields of public policy is a

recurring debate in the specific literature. After all, does its amplitude reflect

advantages or challenges to the area?

There are approaches that relate the amplitude of the field of public

policy to the lack of boundaries between Political Science and Public

Administration, the weakness of theory is in opposition to the empiricism,

while there are authors who argue the opposite: its scope reflects the union

between several problematic areas, and multidisciplinary wealth of insights

derived from multiple discussions (SOUZA, 2007, p.70). Finally, having the

burden and the bonus of a range of human science (social), studies of public

policies become central to two other fields of knowledge: providing an

analytical field of action of the State to be explored by the Public

Administration and empiricism required to the Political Science propositions.

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The most notorious and recent public policy was launched by President

Dilma public policy "Brasil Carinhoso" in May 20124. Notably, this example

illustrates what I consider the most complete definition of public policy: "what

the government chooses to do or not to do" (SOUZA, 2007, p. 68; SMITH &

LARIMER, 2009, p.3)5. It is considerate to be a broad definition by

considering any and all public action or governmental public policy, since the

tiniest policy considered untill the most complex bidding processes; a

complete definition by indicating the subjects of the actions: the State and

the components of the government6, and coherent definition by treating an

individual as the owner of his own action, who can choose what to do or not to

do, ie, choosing not to make a decision or keep the status quo is also part of a

governmental action. However, the difference between the definition of a

political and public policy can be better explained.

4 President Dilma Rousseff inaugurated, at Planalto Palace, the Affectionate Brazil, which has as main objective to remove the misery from all families of children between 0 to 6 years. The new action plan that integrates Brazil free from Brazil Without Poverty reinforces the transfer of income and education strengthens with increase in vacancies in childcare and additional health care, including vitamin A, iron and free medication against asthma. The announcement Affectionate Brazil with the participation of the Minister of Social Development and Fight Against Hunger, Tereza Campello, and the Ministers of Health, Alexandre Padilha, and Education, Aloízio Mercadante. The resources expansion of the Bolsa Família (Family Welfare) serves 2 million families and 2.7 million children. The purpose of government is to ensure that all extremely poor households with at least one child under 6 years of age have a minimum income of more than U.S. $ 70 per person. Thus, all family members will exceed the poverty line - monthly income of up to R $ 70 per person. Resources begin to be paid in June on the card program cash transfer from the federal government, according to the payment schedule of the program. (Source: website of the Ministry of Social Development and Fight against Hunger) 5 There are other relevant and complete definitions of public policy, such as Souza (2007, p.69) "One can then summarize public policy as the field of knowledge seeking, at the same time put the government into action and / or analyze this action (independent variable) and, where necessary, propose changes in direction or course of these actions (dependent variable). Smith & Larimer (2009, p.4): “There is a common view that public policy involve the process of making choices and the results of choices, that what makes public policies truly "public" is that these choices are based on the coercive powers of the state and that, in essence, public policy is a response to a perceived problem." 6 The actors may be components of the government and the influences on government action are: interest groups, private entities, non-governmental organizations etc. However, these actors alone cannot / can produce public policies.

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Couto and Arantes (2002) pointed to the lack of clarity and precision in

the terms in Portuguese that differentiate a policy of public policy. Thus, the

authors resort to English for a mapping of the Field of the knowledge, with the

following terms: polity, politics and policy. The polity corresponds to the stable

structure of politics and more consensual decision possible between actors.

Using a metaphor of a building construction, the description above could be

related to its building architecture. The politics is the political game itself or as

a metaphor proposal, is the relationship between people who live in that

building. The policy in regard to public policy, the result of the match played

according to the rules in force or as a metaphor, how people delimit their

functions in this construction. From Couto and Arantes (2002) provides a

framework very relevant to such limits:

Table 1: Nature of the ideal dimensions of the democratic political process

Dimension Nature Denomination Substantive

feature

Formal

feature

Constitutional normativity

General parameters of

the political game

(structure)

Polity Agreed minimum

consensus between different

political actors

Generality, relative

neutrality

Clashes and political

coalitions

Political game Politics Dynamic relationship

between political actors

Conflict and / or cooperation

Constitutional normativity

Results of the political game

(structure)

Policy Victory / defeat various

political actors

Specificity / controversy

Source: Arantes & Couto, 2002, p. 9 (my translation)

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The interconnections between the words become more apparent in the

definitions brought by Calise and Lowi (2010). The diagram below provides

visibility of the interconnections.

Table 2: The concept of public policies and their interconnections

Source: Calise & Lowi (2010).

Dividing into groups of definitions, the concept of policy comes at a

balance point on the vertical axis between the policies to regulate the conduct

of individuals and policies to provide benefits to individuals. While on the

horizontal axis, the mediation of the concept is done by actions on individuals

and the environment through the collective conduct. The upper left marks the

distributive arena, with benefits to individuals in exchange for a consensus. At

the bottom left is the regulatory arena, policies and laws imposing order on

individuals, mainly according to moral standards. Right upper quadrant, the

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arena redistributive functions as the goal of achieving the equality through

large-scale interventions policies designed to balance power and increase

state legitimacy. The lower right quadrant is the constitutional arena where the

rules are defined (CALISE & LOWI, 2010).

In this scheme becomes more remarkable dynamics between the

definitions and the notion of process that links actors, actions and institutions

to the field of knowledge and public policy research. With this, many

theoretical models can be used in policy studies. The distinction between

them is, for the most part, the various approaches undertaken: Such as in

groups like the elitist and the pluralist model, in institutions such as the

institutionalist model, the actors, such as the rationalist model, in the process,

such as the systemic model of Easton and the cycle of Laswell public

policies7, the political game, or in the various models post-positivist or

postmodern (FARIA, 2003; CAPELLA, 2007)8.

As a theoretical model is developed, this does not necessarily reflect

an improvement over the previous. The existence of non-excludable between

7 The cycle of public policies Lasswell is best known in the various models, it tends to objectively answer five key questions: 1) why we run a public policy? 2) What are the possible modes of execution? 3) How should we run them? 4) Must we actually run them? 5) How were they executed? Thus, the formulation is the first stage, when there is a problematic issue, being dependent on the decisional schedule (answers to questions 1 and 2). The decision making process is considered a true black box and an important stage as it is not guaranteed in the previous goals of implementers. This is the implementation phase, in fact, a policy on the part of actors, institutions and organizations responsible (response to question 3). Implementation can take on design change, distortion, delayed execution or blocked (partially) and stopped. Flea ideal types of specification details, resource allocation and decisions and previously defined (response to question 4). It is the assessment that policies should be analyzed in relation to the intended objectives and their impacts. Analyzes the entire complex and continuous, but this phase is also considered as a phase of the weights, cuts and terminations of money and time (response to question 5). 8 Assume the postmodern models: Model Defense Coalition developed by Sabatier and Jenkins-Smith, Multiple Streams of John Kingdon; Punctuated Equilibrium authors Baumgartner and Jones; constructivist models - Fisher and Forester; Majone, among others (FARIA, 2003).

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models puts them in complementary positions forming an array of choices to

research on production of public policies according to their specific

approaches. For this article it will not be the in-depth theoretical issue and

methodological analysis of public policy, however, it called attention to the

relevant importance and interplay of actors and institutions in the production

of public policies.

2. Public policies in the 1988 Constitution

For the approximation of two themes: Constitution and public policy,

this section starts questioning the thesis presented by Couto and Arantes

(2002), that states that many public policies present in the Constitution, is one

of the main factors justifying the format that works the National Constituent

Assembly (NCA) assumed, among them: the division into committees and

subcommittees, centering on Systematization Committee, public hearings and

submission of amendments that fostered, in a sense, the permeability of

private interests and private decisions. The authors conclude that:

(...) It seems defensible the hypothesis that this format was largely responsible for the introduction in the constitutional text, a large number of devices closer to being defined as public policy than as general and fundamental constitutional principles (ARANTES; COUTO, 2002, p.3).

The authors provide a robust empirical research based on a

quantitative survey very well defined counting policy, politcs and present

amendments in the Constitution. However, in my view, the authors ignore

highlighted characteristics in deeper analysis on the constitutional process

and the institutional framework in which it would sit.

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To justify this position, it should be noted first that the constitutional

process didn’t even start in 1987. Many years before, it had been prepared for

institutional transition. In this context, in 1986, it established the Provisional

Constitutional Studies Committee composed of 50 members, called

"notables", with the task of developing studies and research general interests

of the nation, and that the lawyer had as president Afonso Arinos de Melo

Franco.

The constitutional draft, a result of this group’s work was referred to the

presidency on September 18, 1986 (PEREIRA, 1987; BONAVIDES, 2000;

SALLUM, 1996) and, as reported in the literature, it was filled immediately.

But as the minute was analyzed for this study9, the preliminary Afonso Arinos

appeared as an important report that was consulted whenever the

constituents had doubts about some thematic discussion. In addition, the

Subcommittee on General Principles, State Intervention, Property Regime

and the Underground Economic Activity decided to follow the order of the

preset themes Commission Afonso Arinos.

Despite all possible ways to analyze the use of Afonso Arinos Draft, the

central concern, in my view, in this regard was the formulation of a

constitutional text that would be written by an NCA sovereign and not by a

group of 50 members chosen by Tancredo and Sarney. It was in defense of

assumption of sovereignty of NCA, its work and its composition that it was

questioned the use of Afonso Arinos Draft, just like how it was denied the use

9 Minute of the Subcommittee on General Principles, State Intervention, Property Regime and the Underground Economic Activity and Proceedings of the Committee on Economic Order.

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of earlier constitutions for the formulation of the Constitution10. For this fact,

explanations that determine Afonso Arinos Commission as a simple result of

the "Tancredo’s will" maintained by Sarney, private interests and preferences

of leaders despise the importance of convening an NCA and relevance of all

the constituent process, a posteriori. For, it was pointed for the first time that

the NCA was definitely a collective issue to be discussed.

Thus, the President of the Supreme Court, José Carlos Moreira Alves,

installed the NCA on February 1, 1987. Ulysses Guimarães was elected

president, accumulating the positions of president of the House of

Representatives and the national president of the PMDB (SOUZA, 2001). The

charter was written by 24 subcommittees that surrender, a posteriori, their

reports for eight major thematic committees, and finally, these would fall into a

single Systematization Committee. In this way, the decisions would be subject

to two rounds of roll call votes in plenary. Each subcommittee and committee

relied on a president, two vice presidents and a reporter. The subcommittees

were composed of 21 members and the committees of 63 members, all

appointed by party leaders and in accordance with the proportionality party.

The NCA totalized 559 members, among them, 72 Senators (23 Senators

remnants of the military regime, labeled "bionic senators") and 487 deputies

(SOUZA, 2001, p. 515).

The format of the constituent process decentralized flushed the

proposed arena democratic and participatory. Decentralization allowed and

institutionalized, through its bylaws, practices inserting interests of organized

10 This argument also serves as justification for issues involving the use and reform of the 1946 Constitution instead of making a new constitution in 1988.

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groups. The dynamics of the constitutional process and the formulation of the

Constitution has become a synonymous of mobilization. The constitutional

process was characterized by an intense operation that enabled the

interference of public opinion through institutional mechanisms for external

participation. Based on a decentralized design on thematic committees and

subcommittees and in the maintainence of a sovereign NCA, the constituent

process was capable of breaking the paradigm restricted to institutions and

the formulation of constitutional texts guided by technical government.

The trajectory of the negotiations in the Constituent Assembly, which

had begun in relation to decentralized policy processes and decision-making

centralization finished work on the Systematization Committee, formed by the

reporters and chairpersons of all subcommittees and thematic committees.

The Systematization Committee would be composed of 93 members, namely

24 thematic reporters of the subcommittees, eight presidents and reporters of

the eight thematic committees (GOMES, 2006).

The PMDB was the majority party in the NCA and had, through

indications of its leader Mário Covas, most of the positions of the Chair and

Reporter. The constituent Mário Covas selected lawmakers leftmost PMDB

(progressive) for the formation of the Systematization Committee. Therefore,

of the 40 possible positions directly accessing the Systematization

Committee, there were 18 positions occupied by the Progressive Group

(PILATTI, 2008, p. 76). Thus, there was a majority of constituents quantitative

progressives who seemed, at first, difficult to hamper a change of the

constitutional projects combined to own bylaws, which stated that any

modification and presentation of amendment to paragraphs, sections and

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articles (not chapters and bonds) should gather 280 votes given nominally.

Faced with such difficulty of any modification of the projects presented by the

progressives of Systematization Committee, the constituents of the far right

wing (composed by the most conservative group of the PMDB, including

members of the PFL, PDS and PTB), formed in December of 1987, a group

nonpartisan called "Democratic Centre" ("Centrão") in order to modify the

bylaws and especially to balance the power of the decision making of the

Systematization Committee. In fact, they changed the 280 votes that would be

required for approval of changes in the original design of the Systematization

Committee on 280 votes needed, so the Systematization Committee would

have permission to keep the resulting text from the other commissions.

However, the "Centrão" acted more as a committee of veto than a united

group oriented to transformation and progressive decisions (GOMES, 2006).

Besides the regiment demonstrated the ability to accommodate balanced

actors and institutions in the political game.

However, pressures on their calendar, tensions in search results,

emptying the plenary on behalf of the city elections approaching, lack of

consensus and coordination led to partial success to "Centrão". Relativized

victories and workarounds have been applied, as well as transfers of

complementary or ordinary legislation. All these features should also not be

neglected in explanations about the composition of the constitutional text.

Just realize that there was a relationship of "checks and balances"

between the interests of the players and the rules of the game throughout the

constituent process. So it is clear on each passage, a regimental

characteristic, ensuring (either restricting it or expanding it) the performance

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of the groups, the actors and the leaders. The conclusion is that individual

preferences overlapped the institutional regiment and that this justifies the

amount of public policies on deforms the institutional engineering precisely to

balance the two factors above.

Similarly, the mechanisms of the Constituent Assembly and its true

purpose of forming a new consensus prevailed under any circumstances

maintenance of the status quo driven by both actors as institutions. Likewise

one should not untie the NCA political locus of democratic transition, the

inverse must also exist: the NCA defined the democracy rules and provided

the formation of political identities, the emergence of another political party,

the PSDB 17/06/1988, which is an example of this effect (NORONHA, 2010).

The Constitution of 1988 meant a rearrangement institutional, an

expression of a reckoning between the past and the future project strongly

influenced by this past that, in general, required a model of democracy able to

extend social rights and at the same time, reduce the social difference.

The current Constitution was brought up from the inability of the old

political system to respond to new demands reflected on economic, social and

political problems11. The constituents represented the sovereign power of the

people in building a new consensus contingent12 resulting from a denial of the

recent past, a response to the present and a proposal for a future project to

be followed. This link between refusal of the negative effect of an earlier

11 Overall, in terms of economic growth the 1980s was considered a "lost decade". A negativity that was reflected in the social sphere in its broader aspects: health, education, income, nutrition, employment and housing. 12 To Levi (1991), contingent consensus refers to a citizens' consent for change led by their rationales. It is perceived consensus as a contingent condition to occur significant changes in the institutional framework.

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period and a new covenant for the present / future is the turning point that

legitimizes the decision-making process and defines the Constitution as the

sponsor of democracy.

The mobilization around the construction of a new social pact coincides

with the emergence of new political actors, social demands, emergence of the

notion of public space and the paradigm of citizenship. The structure of the

constituent process reflected this situation demand to ensure the participation

of all in the preparation of the Constitutional Charter, through institutional

forms, as well as making suggestions coming from groups representing

segments of society, public hearings and popular amendments. The

particularity of openness of decision-making allowed the Constituent a

unpublished practice of the constitutional formulation.

A Constitution is directly related to the decision-making process in

which is based. Then, the model of an ideal constituent proposed by Elster

(1988) is far from being put into practice. The drafting of a constitution by

experts, in a short time, for example, does not adapt to the peculiarities of

Brazilian constitutional process, which was composed by publicizing the work

in the media, popular reception of proposals, direct actions of interest groups

and decentralization of jobs.

The game rules were essential for the maintenance of the true

purposes of the constitutional process. The metaphor of "Ulysses and the

Sirens", presented by Elster (1989), that the Constitution is a form of

restriction imposed by the constituent ordinary legislator, which can be applied

to procedural mechanisms of the constituent process as Brazilian restrictions

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on constituents with purpose of ensuring institutional change, ie, mechanisms

to ensure that "Ulysses hitting the singing of the sirens...”

3. What is between actors and institutions?

In this section, I point to the influences of actors' preferences and the

rules of the game in the formulation of the Constitution and also in the

production of public policies.

Studies on institutions give intelligibility historical-political processes as

they allow explanations beyond the material structure of the scenarios and

understanding of the formation of the actors interests, ie, individuals not only

make choices according to their rationality. There is a range of choices of

negotiations that are limited, not because the actors are irrational and not

knowing great options to choose the team, but also for having their

preferences shaped by historical legacies.

As said by Douglass North (1990) the institutions are the rules of the

game, whether formal or informal, they are the mechanisms responsible for

the rules in society. They can also be thought of as constraints invented by

men to model human interaction.

The separation of institutions from organizations is crucial if one is to get a handle on the dynamics of institutional change. Institutions are the rules of the game and organizations are the players (NORTH, 1990, p.17).

While political actors are individuals and organizations that make up

civil society, endowed with power and influence, they have the option to act or

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not to act13. The political actor has several sources of funds and therefore has

a unique role and privileged to decision-making processes. For Kingdon

(2003) the president of the republic is the most influential political actor in the

formulation stage of decisional schedule, i.e., the elaboration of a problem.

As for Knoefel (2007), the concept that best defines an actor is that

every individual is interested in politics. Facing the production of a public

policy, the actor acts rationally, but with influences of institutional rules. Thus,

analyzes that consider both factors - actors and institutions, become more

complete, such as are the institutionalists analyzes.

Hall and Taylor (2003)14 present a subdivision of new institutionalism in

three dimensions: historical, sociological and rational choice. For the

sociological institutionalist approach is under cognitive (beliefs and cultures),

while for historical institutionalists cognition it opens a space for formal

structures such as norms and values. For historical institutionalism, the path

(path dependency) for decisions is cast by institutional structures that lead to

the actions of the actors to some restrictions and possibilities. It can be

argued that all these aspects have a common denominator analysis:

institutions influence the actors’ decisions. Even though each institutional

strand varies in its nature, all reinforce the central idea of the new

institutionalism15.

13 The actors may be external to the researchers, congressional aides, academics, government officials, analysts belonging to interest groups, the media, political parties, public opinion, and among many others. 14 For Fernandes (2002), it is possible to classify between neoinstitutionalists using methodological individualism - followers of rational choice-and those who do not use it - fans of historical and sociological institutionalism. 15 For the old institutionalism, organs of state and bureaucracy represented them.

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In other areas, it can be considered that the State induces the forms of

organization and activities of political entrepreneurs as collective actor,

through legal aspect, nature of economic policies and the actions of their

funding agencies such as the National Development Bank (BNDES) and

Financier of Studies and Projects (FINEP), for instance.

The influences between actors and institutions are simultaneous and

reciprocal, making it possible to influence not only the rules of the game under

the Constituent actors but also the organizations that actors represent under

them. To exemplify this statement of mine, I return to the constitutional

process 1987-88 of economic propositions.

From the empirical evidence that the Federation of Industries of the

State of São Paulo (FIESP), through its President Mario Amato, it was the

only representative among federations and national confederation, invited to

exhibit preferences of business class at a hearing public, it was found that, in

principle, FIESP would, in a sense, be the true representative of the interests

of the business class in the NCA. Through the monitoring of its performance

during the constitutional process there has been a consequent representation

ineffective FIESP reflected in the emergence of multiple associations that

brought as justification of their origins inefficiency of operation of the

federation in the defense of fundamental policies for the class as the definition

of a national enterprise16.

16 The new business organizations were: National Thought Business Bases (PNBE), the Union of Entrepreneurs of Brazil (UBE), National Front of Free Enterprise (FNLI), the Board of Studies and Economic and Social Debates (CEDES), the Forum Informal group Mobilization Committee, Institute for Studies in Industrial Development (IEDI) and Liberal Institute.

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Just for exemplifying criteria, it is possible to analyze the FIESP’s

insufficient representation as a consequence of the institutional structure

inherited from the corporatist system, in a period of which the federation was

institutionalized17. A mismatch between the objective of the NCA and the

FIESP’s way of action became apparent due to the following characteristics:

absence of coordination between the different hierarchical levels of

representation, their autonomy from their summits, disparity between

discourse and practice, presidents without leadership power, trading

predominantly with the Executive, poor communication between various

groups of interest seeking the approval of their proposals (no network

buildings and communities) and the absence of an entrepreneur to the

proposals in the interests of the business class.

These features can be understood based on interpretations of path

dependency, considering the legacy FIESP’s organization structure, molded

in corporatist system. Thus, the actors even having an action’s freedom, acted

strategically as predefined institutional rules. Explanations of path

dependency prove the strenght of the norms, values and interests of the

inherited parts from a corporatist past. The resolutions provided from the

Federation established legally higher resolutions, which was incompatible with

17 In an attempt to control the participation of interest groups in decision-making moments, Getúlio Vargas created a housing through measures that came over the state of corporate actors. As Nunes (2003), corporatism has emerged as a tool for effective state intervention and materialized by means of numerous parastatal agencies control. Alongside the creation of the Ministry of Labor, Industry and Commerce, "Vargas proposed unionization of workers and employers through Decree 19 770 1931" (LEOPOLDI, 2000, p. 76). With this decree, the representative organizations legally won a place in the state defined by a hierarchical structure: at the top, were the associations called confederations with national representation, and secondly, representing the state interests, would federations; while unions occupy third place as associations of regional (LEOPOLDI, 2000).

21

the proposed openings participation and representation of the Constituent

Assembly.

4. Final remarks

The constitutional process was not only influenced by a framework of

economic, social and political changes, unison to the whole society, as well as

a set of rules that defined the ways that decisions and interests would

pervade. It appears that the NCA has ensured the participation and

representation of various sectors of society, including their direct actions, in

the formulation of a new consensus number of changes and responses to

social demands. Therefore, the inclusion of public policies - as its definition -

was prescriptive and inevitable.

This brief article pointed to possible criticism claims that there are a lot

of public policies incorporated in the Constitution justified by the shape of the

constituent process. There is a set of features that should be considered to

realize that the weights constant between actors and institutions. In addition,

these weights that somehow made feasible the goal of democratic transition.

Thus, for the analysis of public policies Constitutions, we must also consider

the political and economic context in which it appears. It should be also noted

that despite the minimal boundaries between concepts of politics and public

policy, these should be considered as complementary and close by: there is a

need for the existence of public policies in the 1988 Constitution, which was

fundamental for ensuring the maintenance of the democratic principles, for

instance.

22

As shown in NCA, we can illustrate the relationship between restricted

actors and institutions in shaping public policy and constitutional content.

FIESP as initial bet representation of business interests was not effective in its

operations by opening a space to recent actors. In addition to the institutional

rules of the NCA that shaped the actors actions, the institutional rules of the

business organizations that compose this actor were also influenced. FIESP

and its President Mário Amato culturally legitimized and adopted practices

that prohibited their acting, so that negotiations and joints would prevail. When

this occurs, institutional changes end up being contained by their own

historical roots and limited by past experiences. However, it was soon clear

the FIESP’s inertial acting in the NCA that can be interpreted by analyzing

historical institutional with influence on their actions delimitations.

More than emphasize the importance of institutional arrangements for

social and political outcomes, this article intends to draw attention to an

unexplored field the effects of institutions on public policies. There is a broad

research agenda yet to be explored, after all, public policy can achieve and

directly influence the actors and institutions by channeling resources,

influence public opinion and changes in collective consensus. As each policy

is put into practice, that is able to influence the distribution of preferences

among actors and institutions. Thus, public policies can also be understood as

institutions.

There is a range of possible studies and ready to be exploited. There is

a more complete study being analysed for the production of public policies:

State versus Civil Society versus Market. On the issue of actors and

institutions it is worth the incentive for assignments research that promote the

23

new institutions. After all, do they really work? In addition to it, the new context

of social problems leads us to think: where would the volunteer fit in the

production of public policies? Finally, should it return an evaluation of

channels of participation and political representation and will they actually

work? In which extent will the Municipal Rights Councils work? Similarly, the

questions are valid for the discussion of social inclusion and application of

affirmative action18. As a result, studies on the production of public policies

leads us to complex questions about citizenship formation and execution of

the democratic system, a relevant concern to all fields of the social sciences.

18 Discussion held from surveys covered in Reis (2003) and Arretche (2003).

24

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