Mexico’s amendable constitution

That’s “amendable,” not “amenable.”  

Too many observers have recently declared that Mexico’s energy reform is safe, because it was enshrined in the Mexican constitution as an amendment. And why would they be wrong? Amendments certainly look difficult to change. It takes a 2/3rds majority of both houses of Congress and a majority of the state legislatures to pass one. That certainly looks like a high bar!

Except that if the bar were really high, the Constitution of 1917 wouldn’t have been amended 232 times in 101 years. Or 64 times in the past dozen. That’s right, Mexico has been amending its constitution once every ten weeks.

For whatever reason, an amendment process that is on paper equivalent to the United States is in practice much much easier. How did that happen?

Let’s start by saying what did not happen. Many analysts, yours truly included, thought the high amendment rate of the Mexican constitution was a epiphenomenon. The phenomenon was that Mexico was a one-party state in which the written Constitution did not matter. Since the constitution did not matter and the ruling party controlled all branches of government, amendments could be passed for propaganda reasons and without consideration of their effects.

Sounds good, right? The problem with the above hypothesis is its converse corollary: If the Mexican constitution was amended all the time because the country was a one-party dictatorship, then the amendment rate should fall when it becomes a multiparty democracy.

Well, sometime around 1997 the country became a multiparty democracy. But the rate of amendment rose from 1.6 amendments per year to more than five. So much for that idea, then.

So what is the reason?

The first thing to keep in mind is that Mexican political parties are much more centralized than their American equivalents. When the party bosses say “jump,” (most of) the legislators ask “How high?” For example, once energy reform made it out of the Congress, it took only 83 hours for a majority of the state legislatures to ratify. Imagine that happening in the United States.

Second, the President can introduce amendments under his or her power to introduce legislation. Until 2012, they could introduce them straight to the relevant committee. In practice, that means that a Mexican president can almost always get their preferred amendments to the floor for a vote.

Third, Mexican parties are more transactional than ideological. The PRI can turn its positions on a dime for electoral (or other) advantage. The Green Party, despite its, name, is not particularly concerned about the environment. Rather, it is a family enterprise, winning seats in order to collect federal subsidies which it uses to maintain its seats, parceling out votes to the highest bidder.  The PAN and PRD are a little more ideological, but the PAN in particular has a long and successful history of logrolling and the PRD has split. 

Finally, Mexican politicians have no choice but to amend the constitution if they want to govern. Too many policies are enshrined in the Mexican constitution. The bloody thing is now 61,765 words long, up from 27,122 back in 1917. If Mexican politicians suddenly developed stronger norms about amendments, then the country would become ungovernable.

To put this in context, Mexico isn’t the only Latin American country with a flexible and overly-detailed constitution. The difference is that the other countries have amendment process that look easy. Colombia’s 1991 constitution runs 47,383 words and has been amended at almost as high a rate. But with a few exceptions, Colombia’s constitution can be amended by two consecutive majority votes of both houses. That is barely a bar at all.

The Brazilian  constitution is only a little bit harder to amend: you need 60% of both houses to vote twice. The Peruvian constitution (which is a paragon of brevity at 18,341 words) allows for amendments with either a majority vote plus referendum or a two-thirds vote of Congress twice. It’s no surprise that those countries alter their constitutions with regularity. What makes Mexico unique is that it has an amendment process that looks fairly onerous … but isn’t.

In other words, Mexico suffers from many many ills, but legislative gridlock is not one of them. That is a good thing, but it means that supporters of the energy reform shouldn’t get too complacent. It wouldn’t take the second coming of Lyndon Baines Johnson to undo the amendments. It would just take some political skill. Of which there is no short supply in Mexico right now.

Now, that is not to say that I think reform is about to be completely undone ...

Comments

[Dave K]

How plausible is AMLO even attempting to re-nationalize Pemex?

It seems dangerous politically.

I presume AMLO is a lock for the election. Is the composition of the General Congress likely to matter in terms of his policies?

[Noel Maurer]

Congress is vital. I'll say a little about current polling in another post.

He doesn't need to renationalize Pemex, since the company is still state-owned. What he can do is stop letting new contracts, although it would be very hard to take back existing ones without paying compensation.

His policy statements are all over the map and a bit contradictory; energy is where he's the clearest.

[Kim G]

One of these days, Mexicans will realize that Pemex is not a national asset, but a national liability that has been used as a vote piggy-bank by the incumbents for years. Only now the thing is totally insolvent and will likely remain a drain on public coffers until it's broken up and privatized.

Of course this isn't likely to happen any time soon, especially under an AMLO administration.

Saludos,

Kim G
Redding, CA
Where our local gov't has its own (fortunately much smaller) boondoggles.