The Procedural Politicking Tug of War: Law-Versus-Management Disputes in Contexts of Democratic Backsliding

Abstract

The legitimacy of democracy and civil rights is based upon laws and administrative procedures. The presence of a legal framework and its application by bureaucrats in their daily decisions are prerequisites for the democratic rule of law. This explains why, in contexts of democratic backsliding, legal frameworks are under attack. Scholars observed the role of public administration in processes of democratic backsliding, but there is still a gap in understanding the disputes around the legal framework. Here, we analyze the conflicts between politicians and bureaucrats around the legal framework in a context of democratic backsliding. Analyzing the case of Brazil under Bolsonaro’s Government, we draw on 164 interviews with bureaucrats to understand how both bureaucrats and politicians dispute the legitimacy, uses, and interpretations of the legal framework to attack or protect democratic institutions and civil rights. On one side, bureaucrats defend themselves and their legitimacy through existing rules and procedures. On the other side, politicians change or reinterpret the rules to fragilize bureaucrats’ decisions. In this process, both politicians and bureaucrats learn how to improve their strategies around the uses of legal frameworks. These findings contribute to understanding how the dynamics around the legal framework explain processes of democratic backsliding.

INTRODUCTION

The “law-versus-management” dilemma is established in comparative bureaucratic studies as an issue of great magnitude (Dahlström and Lapuente 2022). A primary challenge of modern bureaucracies lies in striking the balance between the strictness of legality and the flexibility of managerial principles. Even though at first sight it may seem a reasonable goal, such a dilemma does not unfold in a political vacuum. This is no trivial fact, considering the increasing political instability in contemporary democracies (Du Gay 2020).

Recent years have seen the emergence of processes of democratic backsliding, defined as the gradual weakening of democratic institutions by incumbent governments (Bermeo 2016), in many countries around the world (Levitsky and Ziblatt 2018; Norris and Inglehart 2019), with significant implications for public administration theory and practice (Bauer and Becker 2020; Bauer et al. 2021; Peters and Pierre 2019). While this literature explores the politicization of rules and procedures (Bauer et al. 2021), a gap remains in understanding the disputes around the legal framework in contexts of democratic backsliding. Where does the law-versus-management quandary stand in contexts of democratic fragility, when accountability and democratic institutions are at stake?

We approach the issue empirically employing a qualitative case study of Brazil under President Bolsonaro’s government. Based on 164 interviews with bureaucrats from different federal agencies, we analyze how both bureaucrats and politicians dispute the legitimacy, uses, and interpretations of the legal framework¹ to attack or protect democratic institutions and civil rights. The findings suggest the legal apparatus and executive procedures are a realm for political action in a relational manner, where both bureaucrats and politicians dispute preferences. In contexts of democratic backsliding, politicians use the law in different ways for their authoritarian projects. They break the laws, bend, attack, or change them. On the other side, bureaucrats use the laws as a strategy to protect themselves and the policies they defend. They use the laws to threaten the incumbents and to complexify the understanding of procedures, thereby erecting barriers for politicians.

Based on our findings, we argue that, in contexts of democratic backsliding, the rigidity of the law may be, rather than a peril to managerial principles, a resistance strategy to preserve the administration and the state itself. Strictly speaking, the law becomes the ultimate managerial strategy. We find that, during authoritarian attempts, the law/management tension is less of a dilemma and more of a tug of war towards or away from an authoritarian state, in which both bureaucrats and politicians learn how to improve their power strategies in a relational manner. The implications of our claim confront central features of the managerial reform spirit and nuances the quest for the law-management balance in modern states. Our proposal is to bring the law back in (Zouridis and Leijtens 2021) to better understand the processes associated with democratic backsliding.

Hence, we rely on a new interdisciplinary approach that encompasses law, management, and political science (Wright 2011) to propose a more dynamic framework to explain the law-management link, considering not only the guiding principles of public management paradigms but also the political context in which they are inserted. Moreover, we emphasize how the disputes around lawfulness take place not only in the judicial courts but inside public bureaucracies on a regular basis, thereby escalating the tensions between politicians and bureaucrats. This provides an important contribution to the study of public administration in contexts of democratic backsliding since the executive’s legal apparatus remains under-analyzed as a locus for dispute between authoritarian politicians and bureaucrats.

The article is organized as follows: The first section discusses the rule of law in different public management paradigms and our conceptualization of law as political action. The next section presents our remarks on the methodological approach to our research, followed by a presentation of our findings. Finally, we discuss our conclusions and suggestions for future research.

PROCEDURAL POLITICKING AND THE USE OF LAW AS POLITICAL ACTION

The law-government nexus argues for the links between the laws and the governmental decisions, meaning how much they are coherent enabling the functioning of public organizations (Zouridis and Leijtens 2021). Previous studies have defined this nexus under different public management paradigms (Zouridis and Leijtens 2021), discussing how each paradigm highlights the importance of laws, government, or the relationship among them. Here we follow the conceptualization of Zouridis and Leijtens, in which law refers to “rules, rights, principles, procedures, checks, and structures enshrined in legislation, case law, and the constitution,” while government refers to the public agencies that rule (Zouridis and Leijtens 2021, 119). Regarding the paradigms, for the Public Administration (PA) one, the nexus assumes that the administration serves as a means for the rule of law and constitution, while the New Public Management (NPM) paradigm approaches the law as a tool for maintaining government efficiency. Finally, the Public Governance (PG) paradigm identifies both government and law as a function of network governance (Zouridis and Leijtens 2021).

The differentiation of law’s permeation in each paradigm highlights a wider issue in the Public Administration field. The emergence of NPM and PG has led to the detachment of public management from the foundational features of the state—including law—and neglected political variables in the study of public administration (Kettl 2022; Milward et al. 2016; Peters et al. 2022). Despite attempts to challenge such dichotomy (Peters 2010; Svara 2001), the argument of a neutral administration has partially thrived because the law and the procedural basis of the democratic state are often seen as obstacles to effective management due to its strictness and boundaries to the individual agency (Dahlström and Lapuente 2022). NPM has fostered broad critiques of the bureaucratic organization, claiming that its foundation hampers managerial flexibility, which would be key to organizational performance (Byrkjeflot and Du Gay 2012).

In comparative bureaucracy studies, the law-versus-management dilemma is a well-established topic, referring to whether bureaucrats should strictly follow law-determined procedures or invest in discretionary agency toward administrative efficiency (Christensen, Goerdel and Nicholson-Crotty 2011; Dahlström and Lapuente 2022; Rosenbloom 1983). Studies investigate the impacts and dynamics of implementing a Weberian-oriented public service (PA paradigm)—focused on legality and impartiality—and that of a more managerial-oriented state (NPM paradigm)—prioritizing flexibility and horizontal specialization over strict regulation (Christensen and Lægreid 2011) and the implications for countries in their choice of approach. This dispute emerged from increasing criticism of the inefficiency of the Weberian state in the late 1960s and 1970s, leading to the New Public Management model and reforms worldwide (Christensen and Lægreid 2011). The emergence of the PG paradigm, although critical to several NPM features, reinforced even more the lack of importance of state structure in this process, highlighting once again the centrality of flexible and dynamic arrangements—such as networks. Table 1 summarizes the central assumptions of each framework regarding the law-versus-management dilemma.

Recently, this dilemma led to the emergence of a scholarly demand to “bring the law back in” the public management debate (Beckett 2014; Wright 2011; Zouridis 2011). Although it has been claimed that law was always considered regardless of the paradigm in which it is inserted, the management and governance-centered models lacked their connection to key contextual elements that shape public administration in practice. We argue that the law-government nexus is defined not only by the principles of each paradigm but also by the political system in which the public administration is embedded. Our goal is to bring the law back in and bring democracy back into management and governance-centered paradigms (Peters and Pierre 2022), building on recent analytical contributions that gesture to the “recognition of the interdependence, interconnection, and overlap between political and administrative processes” (Peters et al. 2022, 5). Moreover, we aim to understand the law-government nexus by observing how the actors embedded in the political system navigate this nexus and operate these processes.

Politicians (as principals) and bureaucrats (as agents) face conflicts and power disputes on a daily basis within government organizations, requiring them to interpret and operate rules that shape management control, power distribution, and political processes (March and Olsen 1984, 1996, 2004). How actors construct interpretations of rules in contexts of democratic backsliding is still an overlooked phenomenon. In this sense, we approach such endeavor by analyzing the relationship between principals and agents, which has been considered “the heart of the practice of public administration” (Svara 2001, 176) and yet has not been properly analyzed regarding the law-management dialogue. We contribute to the literature by showing how the law-management nexus is a dynamic process developed by actors who navigate between laws and management, interpreting and negotiating interpretations. We observe how the law-management nexus operates in contexts of democratic backsliding in which the rule of law is at risk, and the law-management nexus can be more critical. Therefore, we also contribute by evidencing how the dynamics around the legal framework and this nexus can explain the processes of democratic backsliding.

The Law-Management Relationship During a Political Crisis

The role of public administration in representative democracies has been discussed by scholars advocating for a virtuous integration of law and management (Christensen, Goerdel, and Nicholson-Crotty 2011). However, such a theoretical approach considers the realm of functional democracies, where there is little risk posed to the continuity of democratic institutions. Recent political events worldwide have challenged our understanding of the rule of law and the possibilities of the law-management relationship during times of political crisis. Indeed, much of what academia and practitioners have built as praiseworthy management tools may backfire in contexts of democratic backsliding (Du Gay 2020). Furthermore, democracy—as well as public administration—is not a static structure but rather an active process in which multiple actors spin the wheel of the state apparatus (Berk and Galvan 2009; March and Olsen 2004; Sewell 1992). The understanding of law must therefore consider not only the existence—or prevalence—of the bare-bones legality principles but also how state actors set such lawfulness into motion, embedding the institutions in this fluid political context (Hallet and Ventresca 2006).

Institutions influence actors’ behavior and provide capacity for purposeful action, however, at the same time, individuals can also constructively interpret rules and foster the transformation, adaptation, or maintenance of rules “through contact with others and exposure to experiences and information” (March and Olsen 2004, 13). Actors build on the elements of openness of rules (March and Olsen 1996). Once actors navigate organizations and institutional settings, they need to cope with ambiguities, inconsistencies, complexities, and potential conflicts set by institutions. In contemporary democratic settings, “legitimacy has come to depend on how things are done, not solely on substantive performance (Merton 1938; Elias 1982)” (March and Olsen 2004, 7). Interpretations of the available institutional resources are part of the actors’ routines embedded in contemporary organizations (March and Olsen 1975, 1996, 2004).

Considering the different ways actors navigate institutions and mediate power relations, classical and recent works in political science and public administration have addressed the relations and tensions between bureaucrats and politicians in democracies. They state that bureaucrats are not necessarily neutral—they defend policy ideas/projects, preferences, and mediate interests among different state and non-state actors (Aberbach, Putnam, and Rockman 1981; Abers 2020; Carpenter 2001; Cohen 2021; Hood 2010; Kingdon 1995; Waldo 1952). Bureaucrats could act as policy-makers, influencing policy formulation and the regulatory processes (Aberbach, Putnam, and Rockman 1981; Carpenter 2001). Moreover, different types or patterns for the bureaucrats-politicians relations (concerning various degrees of legality, loyalty/trust relations, politicization, professionalism, and bureaucratic autonomy) could also be associated with different outcomes for public administration, such as corruption and the quality of public services (Dahlström and Lapuente 2022).

The exercise of executive control over the public bureaucracy is a legitimate course of action under democratic regimes (Wood and Waterman 1991). There are many strategies and tools at the chief executive’s disposal that are available to coordinate the public service towards his/her political agenda, all of which are discussed within the principal-agent framework. Examples vary from ex ante control strategies, such as recruitment preferences and agencies/contracts’ design, to ex post procedures, such as diverse monitoring approaches (Doherty et al. 2019; Eaton 2003; McCubbins et al. 1987, 1989; Strøm 2000; Wood and Waterman 1991).

In terms of bureaucrats’ political action, procedural politicking refers to how state employees navigate the realm of administrative discretion with respect to regulatory procedures to oppose the interests of their principals. These procedural powers, as Potter (2019) asserts, can affect how a rule is written or processed, granting more power to non-elected bureaucrats than usually expected and transforming them into a “powerful political force” (Potter 2019, 23). Politicians also participate in the rulemaking process, turning it into a relational dynamic. If, on the one hand, bureaucrats influence the “rulemaking”—working as policy proposers and policy managers and drawing on the procedures and regulatory processes associated with rulemaking (Potter 2019)—politicians, on the other hand, influence the “lawmaking” and rulemaking, exercising their power over bureaucratic agencies and influencing who gets what, when, and how (Potter 2019; Van Oorshot 2000).

Nevertheless, such strategies have been analyzed in democratic contexts, and, as scholars show, they take place within democratic channels, such as through the legislative process or the exercise of the executive’s constitutional prerogatives. With the recent emergence of populist parties and authoritarian leaders in liberal democracies, the debate about the relationship between politicians and bureaucrats assumes new complexities and may bring us back to reflecting on fundamental elements related to this relationship (Peters and Pierre 2022). On the one hand, bureaucracy remains the “cornerstone of the modern state and representative democratic governmental regimes” (Du Gay 2020, 78). On the other hand, there is an inherent dilemma to the very nature of bureaucracy, as mere agents of principals (i.e., elected politicians) or as guardians “of last resort to counter the ascendance of illiberalism” (Yesilkagit 2021, 37). Understanding these practices under contexts of democratic backsliding is yet an issue to be advanced.

When it comes to circumstances of regime fragility or institutional weakness, the control strategies exacerbated the legitimate institutional process. Politicians may attempt to abandon established procedures when they serve as obstacles to their political goals, and bureaucrats may react to maintain or restore administrative stability. For instance, countries under authoritarian governments may experience a legalism dilemma, not in the direction of managerial flexibility, but towards autocratic legalism (Landau 2013; Scheppele 2018; Tushnet 2014). In these contexts, institutions become targets for illiberal politicians when trying to advance their agenda (Sá e Silva 2022).

Public bureaucracies are legalistic organizations. As such, their task is to carry out legislation (Bauer et al. 2021), which may impose barriers to authoritarian projects that intend to change democratic institutions (Levitsky and Ziblatt 2018). Authoritarian politicians may therefore attack the legal framework, breaking or bending the rules (Pierre et al. 2021, 278; Yesilkagit 2018). On the other side, bureaucrats may use the laws to protect themselves and the institutions they defend (Pierre et al. 2021, 271). Bureaucrats’ commitments to legal values may drive them to sabotage the efforts of politicians, for example (O’Leary 2017).

In contexts of democratic backsliding, additional issues emerge when it comes to the roles of bureaucracies, as well as their (higher or lower) conditions and autonomy degree to protect democratic institutions: “since liberal democracy is at stake, the question of how far bureaucracy can go to defend democracy against authoritarian tendencies becomes more prevalent” (Yesilkagit 2020, 35—our emphasis). This dilemma—on how far unelected state actors can engage in practices towards the defense of democratic institutions (Yesilkagit 2021)—also raises questions on the accountability theme. Bureaucrats can react to illiberal political leaders through different strategies, with several trade-offs in a continuum both between (i) law versus management and (ii) accountability versus autonomy (Dahlström and Lapuente 2022). On the one side of this matrix—considering the “legalistic bureaucracy” (Dahlström and Lapuente 2022)—bureaucracies can operate through a legalistic approach, being more accountable and guaranteeing more predictability for nonstate actors (Dahlström and Lapuente 2022; Du Gay 2020). On the opposite side—considering the “liberal bureaucracy”—bureaucrats can act through more autonomous and discretionary practices, being less accountable.

Although these multiple patterns can overlap and coexist, these analytical dimensions matter for the investigation of how bureaucrats can work towards the protection of democratic institutions at the same time as they oppose their principals (Bauer, 2023). One possible analytical answer to the aforementioned trade-off is to consider the very nature of bureaucracy and its relation to the rule of law: bureaucrats can be conceived as a corps with responsibilities given by law, “with a deeply institutionalized responsibility towards society and its citizens” (Yesilkagit 2020, 38). Conceiving bureaucrats’ role as “agents of the liberal constitution” (Yesilkagit 2020, 38), the bureaucracy can act as safeguards of the rule of law if they work under the legal system and procedural processes of public administration (Du Gay 2020). This interpretation is related to the institutionalist approach that conceives actors as being embedded in organizational and institutional settings. These settings provide actors with resources, opportunities, constraints, and systems of expectations that influence their behavior, interpretations, and choices: “Actors seek to fulfill the obligations encapsulated in a role, an identity, a membership in a political community or group, and the ethos, practices, and expectations of its institutions. Embedded in a social collectivity, they do what they see as appropriate for themselves in a specific type of situation” (March and Olsen 2004, 689). Democratic institutions and legal frameworks not only consist of guidelines for bureaucratic behavior but also provide legitimacy to the bureaucratic ethos and practices in public agencies (Du Gay 2020).

However, these lines and boundaries—between law versus management and between autonomy versus accountability—become blurry when bureaucrats must deal with the (unforeseen) tensions and conflicts arising in processes of democratic backsliding. Understanding how bureaucrats and politicians engage in this tug-of-war and how they mobilize institutions to defend their goals is crucial in investigating the politician-bureaucrats relationships under contexts of democratic backsliding. This article’s purpose is to analyze how bureaucrats and politicians—who have procedural powers to influence rulemaking—are strategically using the law to advance or obstruct authoritarianism and integrate that knowledge into how public administration and public management scholars understand the relationship between law and management. We observe the Brazilian case, where Bolsonaro’s government made many changes through executive decrees, with no supervision from the legislative or judiciary branches whatsoever (Vieira et al. 2022). Such evidence reinforces the importance of expanding the locus of analysis for such disputes. Legality is under review not only in judicial courts but inside public bureaucracies when there is a new interpretation or new administrative decree that substantially changes the organizations’ functioning or outcomes.

CONTEXT AND METHODS

We argue current scholarship primarily approaches the law-management nexus in a static manner and rarely considers the political background in which public management principles are embedded. Thus, we propose an understanding of law as a form of political action and offer a relational typology of bureaucrats’ and politicians’ actions and counteractions. In this sense, our analytical strategy brings forward the connections between the micro and meso levels, namely, individuals and the institutional settings in which they are embedded. It acknowledges the dynamic interplay between individual agency and institutions (Hallet and Ventresca 2006; March and Olsen 1984, 1996, 2004).

For this inquiry, we conducted a single-country case study based on representativeness criteria. We selected Brazil under Bolsonaro’s government (2019-2022) as a crucial case—to show the outcome of interest (Gerring 2008)—because of its administrative and political features. Brazil was subject to significant state reforms in the past decades that transformed the executive branch structure and enlarged the scope of public policies in the country (Abrucio and Loureiro 2018; Inácio and Llanos 2015). The administration resorted to principles from the public administration paradigm in the most recent constitution (1988), to managerial reforms in the 2000s for reshaping the design of public agencies, and to public governance dynamics for intersectoral policies in recent years. At the same time, the government was able to implement successful social policies, such as universal healthcare, cash transfer programs, and the expansion of higher education.

As for the political context, Brazil elected a far-right politician as chief-executive in 2018, Jair Bolsonaro, who established a conflictual relationship with the public bureaucracy and has attempted to dismantle long-lasting social policies (Peci 2021; Peters et al. 2022). Brazil, under Bolsonaro’s government, established political control with authoritarian facets (Peci 2021), aiming at dismantling institutions and public policies (Cardoso Jr. et al. 2022). Since 2019, with the beginning of Bolsonaro’s term, the president and his team have developed a contentious relationship with public bureaucracy—in different state organizations and various sectors of public policy (Peters and Pierre 2022). This conflictual interaction is reflected in several presidential attempts to dismantle institutions and public policies (Peci 2021). Scholars documented a process of weakening democracy and institutional crisis in Brazil, attacking institutions and bureaucracy (Peters and Pierre 2022; Milhorance 2022; Cardoso Jr. et al. 2022; Story et al 2023; Lotta et al 2023; Sá e Silva 2022; Lotta, Tavares, and Story 2023). For this reason, and given the political and administrative characteristics, we consider Brazil a crucial case study of the conflicts between politicians and bureaucrats around the legal framework in democratic backsliding.

DATA COLLECTION

As for the within-case selection, guided by the purposeful sampling strategy (Merriam and Tisdell 2015; Patton 2015), we selected diverse scenarios (Gerring 2008) that could comprise various policy sectors and organizational cultures—from social to macroeconomic policies². The analyzed organizations function under diverse dynamics—some more strict regarding the legal guiding apparatus and others more flexible as to management principles, or more network-like management. Therefore, our sample encompasses situations that could fall under the three paradigms umbrella, which is central to demonstrating that our argument cuts across different areas and management traditions. The data used for analysis was collected through 164 original semi-structured interviews conducted via Zoom meetings with mid-level and high-level federal bureaucrats in the Brazilian government between February and December 2021.

Our analysis is oriented by interpretive research guidelines (Yanow 2000), so our goal was to build analytical categories from subjects’ experiences and interpretations. Likewise, we followed quality criteria suitable to this epistemological tradition, such as data depth, suitability, and sufficiency (Charmaz 2014). To meet such requirements, our strategies were recruiting an extensive sample—with respondents’ background variation (e.g., public sector experience, age, and career) as well as diverse workplaces—combined with saturation, triangulation of sources, coding revision by peers, and coherent writing of the findings.

During interviews, we encourage respondents to elaborate on their understanding of the situation and illustrate examples of their lived experiences to guarantee data richness. We have used quotes from interviews that were representative of the analytical category to attend suitability and data depth criteria and add coherence to the writing of findings. Moreover, considering the limitations of using quotations in qualitative reports, we present contextual descriptions for the highlighted situations (Bissell 2022). Examples of quotes for each code are presented in Appendix 1.

We interviewed public servants working in 15 different federal organizations from the most diverse areas of state activity, including health, social welfare, environment, economy, and agriculture, among others. The respondents vary in terms of their professions, expertise degree, age (from 35 to 65 years old), and time working in the federal government. In terms of the common characteristics of the interviewees, our research focused on tenured civil servants (named here as bureaucrats), who decided to resist the unethical practices of political control during the Bolsonaro administration. We adopted a purposed criteria of selecting interviewees that adopted practices of resistance “guided by democratic principles with the aim to balance individual and collective interests to promote the common good” (Bauer 2023, 2). The conversations had as a central objective to understand the perspective of these public servants on the dynamics of political control and bureaucratic resistance. The questions were divided into four sections: i) trajectory in the public sector; ii) experiences of working during the Dilma, Temer, and Bolsonaro administrations; iii) differences in political control considering the 3 presidents; and iv) differences in the reactions experienced by the bureaucrats.

The above-mentioned choices regarding the interviews are justified by the Brazilian context of an increase in authoritarianism and the reduction in freedom of expression already identified by scholars (Guedes-Neto and Peters 2021; Lotta et al. 2022; Peci 2021). Also, previous research suggests that Bolsonaro’s government has engaged in systemic oppressive actions against bureaucrats (Cardoso Jr. et al. 2022; Peci 2021; Peters et al. 2022), who subsequently responded with reactions such as shirking or sabotage (Lotta et al. 2023).

Since our goal is to understand the disputes around the legal apparatus, we designed our analytical framework in a relational manner. We, therefore, expand the concept of procedural politicking as usually presented by the literature—as a bureaucratic action—to politicians as well. However, access to these political players is limited, and we assumed that they would be unlikely to speak openly regarding their actions and intentions, even in the face of their availability for interviews. At the same time, there is much evidence in reports, news on media, and official documents about the attempts of politicians to exert political control and manipulate the laws in their favor. Moreover, given the critical moment of the government, including academics (Laut 2022), interviewing politicians could put us at risk while not providing much new evidence. On the other side, bureaucrats’ actions and perceptions about this process are not reported, as it is often secret (Guedes-Neto and Guy Peters 2021). Thus, we consider the interviews with bureaucrats the best methodological strategy to access data regarding politicians’ actions, even though it is an indirect source. Moreover, because our argument is based on an action-reaction framework, it is vital to analyze how bureaucrats perceive politicians’ attempts and react to them. Also, in a counterfactual exercise, even if politicians did disclose their actions and intentions, it would not invalidate our analytical categories since bureaucrats did take action based on their perception of the politicians’ attempts.

Considering the above-mentioned context, it is evident that the interviews dealt with extremely sensitive subjects, and many of our interviewees were under attack at the time they agreed to contribute to the research. Consequently, we selected the bureaucrats using snowball sampling, a methodology suggested by the literature when dealing with sensitive topics (Cohen 2018; Cohen and Arieli 2011). The respondents were asked at the end of each interview to suggest other bureaucrats who were under different forms of political control and enacting diverse strategies to cope with the oppressive actions. There was also a small number (eight) of bureaucrats who were included in the sample after they came to us upon hearing about the research. After a certain point, the interviews began to provide repeated information on different subjects. At that point, we reached a saturation of responses (Hennink and Kaiser 2022; Merriam and Tisdell 2015) and ended the process of searching for new interviewees.

In addition, considering the sensitivity of the research topic and the risks that bureaucrats might be taking by participating in the interviews, it was agreed that the research data would not be presented in any way that could identify them—individually presenting their names, departments, or otherwise illustrating specific situations that could expose them. The interviews were recorded upon previous consent and when not, the interviewers took notes during the conversation. Interviews lasted between 45 and 180 minutes.

Data Analysis

All recorded interviews were transcribed verbatim by one of the authors, and both transcriptions and notes were coded using the software Dedoose. All interviews were coded by two different authors to ensure the reliability of the process. The coding process followed two steps. In the first step, all interviews were coded as “laws,” in which all references to laws, rules, and formal procedures were marked. In the second step, the excerpts were recoded, inspired by a grounded approach in which we sought to find different purposes and strategies for the use of the law. Based on that, we propose a typology of the uses of law, as discussed in the next section.

FINDINGS: THE MULTIPLE USES OF LAWS

Bolsonaro’s government has been actively engaged in dismantling policies and jeopardizing democratic institutions (Casarões and Farias 2022; Peci 2021). Indeed, the conflicts between the government and the bureaucrats were identified from the beginning of the new administration (Peci 2021; Lotta et al. 2022; Cardoso Jr. et al. 2022; Milhorance 2022; Lotta, Silveira and Fernandez 2023; Story et al 2023; Sá e Silva 2022). In this context, the use of law emerged as a strategy for both politicians and bureaucrats to accomplish their goals. For politicians, the main goal was to enable policy and institutional dismantling, often presented as an intention of managerial agility. Therefore, the legal apparatus was mobilized in different ways to enable institutional changes or to weaken the bureaucrats’ agency. On the other hand, for bureaucrats, the main goal was to maintain the institutions and protect themselves and the policies they defended. Therefore, laws served as barriers to politicians’ efforts.

To accomplish their goals, both politicians and bureaucrats develop different strategies regarding the laws. Even though they have different purposes, however, both groups may develop similar strategies. In Table 2, we summarize these strategies presented by interviewees. The frequencies represent the number of interviewees who reported the use of each strategy. They should not be viewed as an absolute analytical category, as this we adopt here an interpretive approach. However, the frequencies help us understand where the strategies may be more concentrated and relevant.

The first strategy is changing the law. This strategy is used by both politicians and bureaucrats, but the first group uses it more intensively. It aims to propose new legal apparatuses, replacing the existing ones as they are not suitable for the purpose of the group. For politicians, changing the law is easy, as they have the legitimacy and the means to do it. A very common example concerns changes in norms and rules that guide the decision-making processes and the day-to-day work of bureaucrats. Many of these norms take the form of “instruções normativas or portarias” which are administrative procedures—not constitutional or legislatively binding rules—and, therefore, can easily be changed by politicians in office.

In one of the agencies studied, the interviewees point to a massive revocation of these rules without any reasonable justification. According to the interviewees, some of these norms were fundamental to ensuring that the bureaucracy could work autonomously and contribute technically to the decision-making processes. Therefore, the abandonment of them restricted and weakened the possibilities for the bureaucracy to act (I101). The absence of these normative instructions regulating the rites of decision-making, therefore, represents the removal of safeguards sustaining and protecting the work of bureaucrats, who end up being excluded from these processes. The law, in this case, would be the instrument that guarantees the bureaucracy’s power and participation. The suppression of such formalities, while perhaps seemingly minor and disguised as administrative simplification (management flexibility), is actually prohibitive to bureaucratic work. Here, we observe how the law-management dilemma unfolds in a democratic backsliding scenario. The action for management efficiency is restraining the administration altogether since it restricts one of the basic resources for public service delivery: bureaucracy.

For bureaucrats, changing the law requires convincing politicians (top-level executive appointees working on the specific policy) or dialoguing with congressmen (who, in some cases, may share some interests and ideas with bureaucrats). One example is when a bureaucrat from the Ministry of Education discusses the rules that regulate the state’s relationship with large business groups in higher education, rules that greatly impact the bureaucrats’ work in light of lobbying and other forms of political articulation: “We (the union) are proposing changes to the regulations to make our work easier. Imagine these large groups of higher education (lobbying), it is a serious situation (...). Our responsibility is very big because if we do something wrong, we answer for it. So, we have to improve this process” (I121).

Another example regarding a strategy of “changing the law” would be when bureaucrats in the environmental sector propose new work procedures in normative instructions from environmental agencies, as was the case observed in complementary rules elaborated in the processing of environmental fines, or in the elaboration of new normative instructions for partnerships between the environmental agency and other bodies in the management of environmental conservation units. Once bureaucrats in environmental agencies saw opportunities not only to prevent policy setbacks but also to enhance existing policies, they initiated the revision of regulations. They strategically incorporated new topics to address identified normative gaps: “there is a Normative Instruction (IN) with the process for a Cooperation Agreement. (...) When I started identifying these normative gaps, I talked to a colleague, and we suggested changing the procedure. (...) Now, a new IN has been issued. We managed to influence some things” (I033t).

The bureaucrats, therefore, position themselves politically to propose changes in the laws and regulations that guarantee greater autonomy and security in a job that involves sensitive issues and a lot of pressure from the private sector. Both of the aforementioned examples represent changes in norms that regulate the decision-making and negotiation processes around public policies and serve as useful examples of bureaucratic action that could be interpreted as red tape since they seek to further refine the regulation with more specificity. Nevertheless, as we see in other situations, the “strictness” towards the legal apparatus is a central safeguard strategy, as a clearer process leaves little room for unforeseen interference that could jeopardize public policy. In this way, the strategy of “changing the law” illustrates how bureaucrats deploy procedural politicking (Potter 2019), using strategies to insulate policies from political influence in contexts of democratic backsliding.

The second strategy is breaking the law, and it is also mobilized by both groups. It happens when actors violate the law, perpetrating illegalities or acts of non-conformity to accomplish their goals. A bureaucrat at the Ministry of Education reports that the change of government brought new guidelines for the work of the civil servants that oppose important principles guaranteed by law and the constitution itself, an observation supported by several other interviews. Thus, politicians seek to carry out their managerial visions independently of the previously established norms, in blatant violation of the democratic process.

In addition, the ministry decided to facilitate the mobility of civil servants so that those who were unsupportive of the new political project could be removed. In these cases, there was a sudden change in the policy paths that was not accompanied by changes in the law. Moreover, the demobilization and removal of bureaucrats were fundamental since they were the ones who carried the institutional memory. According to one interviewee: “This group that came to power wants to override the constitution and all education laws. And they said this to the teams: ‘if you don’t agree, stay quiet or leave’” (I99).

Breaking the law is a riskier strategy, as it may generate legal consequences for both groups, although politicians are more protected than bureaucrats. In the case of bureaucrats, the strategy of breaking the law is closely associated with disrespect for hierarchy. One interviewee provided a specific example of the practice of breaking the law. In the Brazilian federal government, bureaucrats are legally obliged to request authorization from their superiors to participate in public events. One of the interviewees reported: “More than half of my work is this (breaking rules) right now. I do not ask for permission to participate in events, just to give you an example” (I3). Bureaucrats often justify breaking one norm to protect another. The idea is that protecting the established policy or the normative prerogatives of their work depends, for example, on disrespecting norms that regulate hierarchy. In this situation, bureaucrats still claim to abide by the strictness of legality - but filter the norms that lessen their autonomy. Thus, although “breaking the law” is a riskier strategy, actors use it to resist processes with which they are not in agreement.

The third strategy is bending the law, also used by both groups. This strategy refers to the option of (re)interpreting the law without breaking it. When norms are ambiguous and allow for different interpretations, bending them is a strategy used by actors to propose a meaning more suited to their purposes. This is a less costly but more unstable strategy since the law itself allows changing its interpretation and disputes around it. One example of this strategy was conveyed by a bureaucrat who reported about a rule that prohibited making some information available in the way it traditionally had been in the public administration. Thus, the strategy adopted by the bureaucrats was to create alternative ways to disseminate this information to a network of non-state organizations that were politically aligned with the position of the bureaucrats: “We are developing practices in the bureaucracy to make some rules more flexible and to be able to protect the work. We never broke the rules, but we created alternatives to the rules. We comply with the alternative rule” (I81). Ultimately, bending the law can lead to judicialization, whereby actors rely on the justice system to provide the correct interpretation.

One example provided of how politicians bend the law concerned the former Minister of the Environment who, in an official government meeting, said the COVID-19 pandemic provided a good distraction for the government to “run the cattle herd” on the Amazon, bending regulations to allow for the more aggressive economic exploration of the tropical forest. The former Minister defended simplifying the interpretations of the norms through the federal government’s regulatory powers as a means to promote economic activities such as mining in protected areas. Another example involves new legal interpretations promoted by the president of FUNAI (National Foundation for Indigenous Peoples) regarding the guidelines governing the presence and activities of bureaucrats in indigenous lands. The former president of FUNAI stipulated that bureaucrats could only work in officially demarcated lands, altering the previously established interpretation (and consistent with the institutional mission of the agency) that allowed FUNAI’s involvement in lands that were yet to be officially demarcated.

In both examples, by bending rules, political actors exploited the openness or ambiguities of certain legal instruments, aiming to promote actions contrary to the very institutional mission of the governmental agencies, translating them into guidelines that favor their political agendas. We observed the same phenomenon—but with opposite preferences—among bureaucrats’ behavior: several interviewees reported situations in which they sought to comply with their agencies’ institutional mission (opposing their principals’ orders) by bending regulations that allowed room for interpretation and adaptations in their application, safeguarding the fulfillment of public policies or preventing policy dismantling. Overall, both bureaucrats and politicians manipulated the laws in a way to serve their agendas or purposes, especially in cases where there were more ambiguities or inconsistencies in norms. In contexts marked by tensions and conflicts, the actors strategically made interpretations as a way to legitimize their claims.

The activation of the justice system was another reported strategy. Both politicians and bureaucrats activate the justice system when supportive of their goals. As mentioned, this happens when there are disputes around the interpretation of the law. It also happens when the other group is breaking the law or trying to change it. One example was provided by an environmental inspector whose main task is to issue fines upon identifying illegalities. However, the directive of the new government was to bend the law and diminish the oversight and, therefore, the number of fines. In this context, upholding his responsibilities created many conflicts with the new government. He explains, “We applied fines for deforestation and gave a period of one week for the client to regularize the situation. But this created a conflict with the government [whose political agenda did not support the issuing of fines]. They [the political actors] talked to a judge and asked for a decision to stop us [bureaucrats’ work], questioning the legality of our work. But we articulated with the judge who said that we had to continue applying the fines” (I24). This serves as a useful case, therefore, of the judicial system mediating a dispute between politicians and bureaucrats over the interpretation of the law. In recent times, bureaucrats have increasingly turned to the justice system as a means of bolstering their authority and legitimizing their work in law enforcement in line with their agencies’ institutional mission. In the backdrop of laws influencing political and administrative processes, the justice system has emerged as a pivotal player called upon during moments of intensified tensions and conflicts between politicians and bureaucrats.

The fifth strategy is threatening opponents based on the use of the law, practiced by both groups, but in different ways. Bureaucrats use the law to threaten politicians when they want to prevent them from doing something with which they disagree. They announce that the proposed activity is illegal and could have legal consequences for the politicians in question. One bureaucrat explained how she reacts when politicians ask her to defend bills or opinions with which she deeply disagrees: “My role is to say what is right, within the legislation. I let my boss bear the consequences of wanting to act outside of it, I have no pity. In this aspect, I am direct, not only to protect society but to protect myself. This is my way of resisting” (I125).

On the other hand, politicians exploit laws and norms related to people management in the public service to threaten bureaucrats by saying that refusing to carry out certain activities can lead to the use of punitive sanctions against them. One interviewee reflected this, conveying that her boss did not want her to upload any information into the electronic system, which is legally part of her work. However, they never officialized the request, instead sending unwritten threats that she could no longer use the system and that nothing should be documented. As she reports, “I can’t describe the feeling of panic that these messages generated. They started threatening that they were going to send us to the human resources department, that they were going to sue us if we used the system again (…). I felt helpless” (I11). This example shows how politicians use administrative procedures to secure a more informal setting. In this way, flexibility is not aiming at better management but at more capacity to fragilize the state. In general, both politicians and bureaucrats threatened their opponents by leveraging the legal framework that shapes public administration processes. In the case of politicians, there were several attempts and threats to use legal accountability instruments against bureaucrats, misused as a means of political persecution. On the other hand, many accounts indicate how regulations served as a stronghold of resistance, with bureaucrats mobilizing institutional resources to impose greater constraints on politicians when they attempted to circumvent the laws.

The final strategy was the refusal to do illegal activities. Although interviewees reported this activity as undertaken solely by the bureaucrats and not by politicians, this should not be seen as a fact but as the way bureaucrats perceive the circumstances and how they react to it - which is driven by the epistemological choices of this article. Therefore, as they perceive, such a strategy is activated, quite simply, when bureaucrats refuse to engage in illegal activities, which is part of their natural vocation as bureaucrats. For example, they may refuse to sign documents, authorize procedures, or participate in meetings or activities that they consider illegal or inconsistent with their agencies’ institutional mission. One example provided by an interviewee is illustrative: “sometimes I’m asked to do something, and I refuse because I don’t agree with it. I explicitly say ‘ - No, I don’t feel like contributing to that.’ I disagree, I think it’s illegal, and I don’t agree to compromise my name with it” (I53). More experienced public servants tend to be more confident taking this position. As reported by one interviewee, “I see a lot of fear from my colleagues all the time. They are afraid of their bosses (...). The part of the technical work is to mediate this. The mediation happens through knowledge, through laws and regulations. I very calmly give them my opinion. (...) One thing is what is said, another is what is done and legislation holds back these wills” (I97). For many of the interviewees, legality has been the ultimate defense mechanism against authoritarianism: “We try to keep a record, explain why we diverge. Lately, the strategy has been to protect myself individually by keeping a written record and understanding the decision will be made by another professional. The first attempt is to talk, the second is to protect myself.” (I135). This type of strategy allowed bureaucrats to both disagree with and not comply with their political superiors’ orders, justifying their actions based on the laws. Viewed as the ultimate resource, bureaucrats began invoking the laws to legitimize their non-compliance with politicians. This choice not only provided them with greater legal security in their administrative procedures and daily practices but also conferred greater legitimacy to their dissident behavior.

As our findings show, within this tug of war scenario, both bureaucrats and politicians have formulated strategies to manipulate the legal framework and executive procedures, harnessing them to their advantage. While these strategies might appear analogous—encompassing actions like breaking, bending, attacking, or altering the law, and even initiating legal proceedings, issuing threats, and abstaining from participation—they serve divergent purposes and are executed with varying degrees of intensity. Politicians wield the law as a tool to propel their authoritarian agendas, entailing the erosion of bureaucratic influence and resistance. On the other hand, for bureaucrats, the law emerges as the ultimate managerial protection, enabling them to ward off political pressure and construct barricades against the authoritarian program.

Findings also show that this process is relational and involves learning over time, meaning that both politicians and bureaucrats—through a dynamic relational process—learn how to improve their strategy. This dynamic relational process among the use of laws shows how, in the case of democratic backsliding, the law/management tension may be less a dilemma and more part of the tug of war between politicians and bureaucrats, as will be further explored in the next section.

DISCUSSION

Public bureaucracies are legalistic organizations. In contexts of democratic backsliding, as the legal framework may impose barriers to authoritarian processes (Levitsky and Ziblatt 2018), politicians may attack or fragilize the laws (Pierre et al. 2021, 278, 278; Yesilkagit 2018). At the same time, in contexts like this, the law may serve as the ultimate protection for bureaucrats (O’Leary 2017; Pierre et al. 2021, 271). Consequently, they may serve as a useful instrument in disputes between politicians and bureaucrats seeking to achieve their goals.

Our findings shed light on these processes, suggesting that, in contexts of democratic backsliding, the politicians may pursue a more informal institutional setting not to improve management efficiency but to centralize power to dodge democratic control. Our goal was to specifically examine the disputes around the legal apparatus and reveal which—and how—such practices occur inside public organizations.

Considering the authoritarian political context and the dismantling purposes of some political leaders, the law-government nexus acquires a different meaning altogether. Under these circumstances, the management foundation is neither legality (PA Paradigm), efficiency (NPM Paradigm), or effective governance (PG Paradigm) (Zouridis and Leijtens 2021). What is at stake, therefore, is the very basis on which the paradigms unfold—the administration structure, the existence of policies, and the maintenance of a high-quality bureaucracy. Hence, the dispute around the legal apparatus becomes central, as the act of preserving the formalities of the democratic process inside public organizations may indeed serve as the means to preserve the fundamental basis of the state itself. Moreover, when it comes to accountability implications, the legal system is also the primary resource that bureaucrats can count on - both for protecting democratic institutions and for safeguarding the procedures that hold public administration accountable for non-state actors. As proposed by Weber (2013), administrative law governs the bureaucratic process. Therefore, the legal system and the constitutional apparatus serve not only as the ultimate protection for bureaucrats in illiberal contexts but also as a key resource for accountability, even more in settings threatened by authoritarian politicians. This is why processes of democratic backsliding are followed by a de-legitimization of the laws and bureaucratic procedures (Whimster 2023).In that sense, what could be viewed as a restraining aspect of the rigidity of law is actually an enabling political action in terms of engendering democratic continuity. Thus, the law-government relationship presents itself as more of a tug of war than a nexus in contexts where public services and democracy are endangered. Figure 1 builds on our results and provides visual representation of said dispute and the role of bureaucrats and politicians in the setting.

We have described multiple strategies used for different purposes by politicians and bureaucrats. While the former aims to override the restrictions on their power, bureaucrats cling to formalism to preserve the state structure and to self-protect and also to maintain the mechanisms of accountability that operate as a barrier to democratic backsliding. While politicians’ oppressive practices may vary across agencies and departments (and future studies could explore more the differences among them), in general, bureaucrats report an increase in surveillance, attacks on individual reputations or organizations, the suppression of resources for the development of work, and the restriction of autonomy and potential creative solutions to public problems. These reports are also supported by external evidence, such as official reports made by the judicial system, news from the media, and reports organized by unions.

The interviews show how these attacks are converted into disputes around the legal apparatus, as previously discussed. The battlefield is vast and is exploited by both politicians and bureaucrats in a dynamic manner. Hence, we propose to widen the understanding of procedural politicking (Potter 2015, 2019), considering the political setting in which public organizations are embedded. Rather than serving as a tool restricted to increasing bureaucrat’s leverage, the use of the law, broadly speaking, is also at the politicians’ disposal. Even though bureaucrats possess the know-how of legal procedures—something that could give them the upper hand—politicians enjoy legitimacy and the “power of the pen,” which they will not refrain from using in contexts of democratic backsliding.

Our interpretation of procedural politicking resembles a tug of war, as displayed in Figure 1. As previously argued, authoritarian politicians may seek to establish a more informal administrative setting where control and accountability over their actions are limited. Even though the intention may be disguised as a claim for management flexibility, it comes at the expense of the very foundations of democracy—the procedures that allow for public accountability and external control. That is to say that making bureaucracy more flexible, in terms of suppressing legal formality within public administration, is, in fact, a managerial weakness. We, thus, join previous literature that has pointed out that bureaucratic values and structures are essential to management in terms of the constituted hierarchy—which is central to performance (Byrkjeflot and Du Gay 2012); but we highlight the crucial role of bureaucratic agency for sustaining representative democracy itself (Bauer 2023)—by maneuvering their expertise around the law and preserving broader values for the democratic endeavor.

In such situations, bureaucrats emerge as guardians of the law (Yesilkagit et al. 2022), aiming to adhere to established procedures to safeguard the state, themselves, and the mechanisms of accountability that can protect the backsliding. On the other side, when politicians or bureaucrats go further in their actions, adopting strategies such as breaking the law, these practices may impose several implications for accountability once these actions (regardless of their motivations, whether to defend or attack democratic institutions) do not rely on the legal-system apparatus anymore and are not accountable. In this sense, future research works can investigate to what extent accountability is at stake when bureaucrats, on behalf of the defense of democratic institutions or public policies, engage in practices that disregard the legal apparatus that provides them the basis for public administration and accountability.

Once threatened by illiberal politicians, bureaucrats often face a compliance dilemma when it comes to either complying with their democratically elected (illiberal) superiors or adhering to the legal framework that safeguards policy continuity, institutional memory, bureaucratic ethos, bureaucratic autonomy, and self-protection. Considering the tug of war over how to mobilize institutional resources and “how far” bureaucrats can go to defend democratic institutions, scholars emphasize the importance of bureaucrats’ capacity to uphold fundamental democratic values and the rule of law, reflecting a “deeply institutionalized responsibility towards society and its citizens” (Yesilkagit 2021, 8) and defending democratic principles (Bauer 2023). Consequently, administrative practices anchored in the legal apparatus remain the ultimate resource for bureaucrats to navigate institutions, even in contexts characterized by democratic backsliding processes.

Even though scholars have argued that protecting the legal framework may be beyond the immediate power of bureaucrats (Yesilkagit et al. 2022), we have demonstrated that engaging in procedural politicking is indeed a strategy for activating administrative guardianship. In this way, the strictness of law guarantees the basis that enables the modern public administration to develop—bureaucratic autonomy, transparency, institutional memory, and public participation. Thus, the protection of management tools as virtuous practices for public administration depends on how the legal apparatus is operated inside public agencies. And, as our data show, this process depends not only on the institutional dynamics but, most of all, on how the actors operate the institutions, interpret them, and navigate among them (Hallet and Ventresca 2006; March and Olsen 1984, 1996, 2004). Therefore, our article contributes to the theory by showing the importance of observing the interfaces between the institutions and the actors to understand the processes of democratic backsliding. As we show, the very existence of the efficiency principle relies on the legal formality that sustains the state. Such legal basis is daily disputed inside public bureaucracies and is severely endangered in contexts of democratic backsliding.

CONCLUSION

The primary goal of this study was to explore the disputes around the legal apparatus under democratic backsliding contexts and connect this back to conceptual understandings of the relationship between law and management in public administration and public management. Bringing the law back in (Zouridis and Leijtens 2021), we focused our analysis on politicians’ and bureaucrats’ actions toward state procedures that take place inside public organizations on a daily basis. In doing so, we constructed our argument from an in-depth case study of Brazil under Bolsonaro’s government.

We argue that procedural politicking (Potter 2015, 2019) is a central concept for understanding this dynamic, although it should be expanded and embedded in the political context. Rather than serving as a bureaucratic unilateral action, procedural politicking—the disputes over the uses of law—must be seen as a form of tug-of-war away from or toward democratic principles. We have identified multiple strategies at stake in this debate, including changing the law, breaking it, bending it, attacking it, appealing to the justice system, threatening, and refusing to perform administrative duties. These strategies are adopted by both politicians and bureaucrats but for different purposes. While politicians in authoritarian regimes aim to centralize power and escape democratic accountability, bureaucrats resort to relying on formal rules in order to preserve themselves and the basis of the state itself. In that sense, we interpret the law-government nexus in fragile democratic regimes as a constant tug-of-war between politicians who seek to erode democratic institutions and their policies and state bureaucrats who react to such attempts and maneuver to safeguard the foundations of the state.

As for the former, we contribute by discussing such a dilemma embedded in the political context. Our analysis suggests that, in circumstances of democratic backsliding, there is no trade-off between law and management. Instead, preserving state formalities is a sine qua non-condition for sustaining management in a democratic regime. This is why we argue that in contexts of democratic backsliding, the law becomes the ultimate managerial strategy, as disputing the law is a managerial strategy to preserve the institutions and the policies. Therefore, more than advocating towards or against the law, the literature should observe how embedded agents interpret and manipulate the law to enable their managerial strategies.

For the literature about democratic backsliding and public administration, our article contributes by drawing attention to the disputes around the legal apparatus that occur outside the purview of the judicial courts. We argue that conflict over law within the executive branch is a critical area for analysis and has far-reaching implications for public management and democracy as illiberal politicians may attempt to undermine or alter the legal system, while bureaucrats may resist reinforcing it (Sá e Silva 2022; Whimster 2023). We show that this process must be explained by observing how the actors use the institutions in their favor. Therefore, we contribute by proposing the importance of analyzing the micro-level and administrative behavior in understanding how processes of democratic backsliding are enacted in practice. Moreover, contributing to the recent scholarship on this issue (Bauer 2023; Du Gay 2020; Yesilkagit et al. 2022), we demonstrate that bureaucrats play a role in defending the legal framework and engaging in procedural politicking as a strategy for administrative guardianship. This analysis contributes to a broader agenda of understanding “how to prepare civil service to stand up against the populist agenda” (Bauer 2023, 8).

Despite the contributions, the article has some limitations that could inspire future studies. The first is about the interviews. We only looked at one side of the relationship—the bureaucrats—which is justified by our epistemological approach. Although we have triangulated information about politicians’ actions in reports, news, and official reports, future studies could also analyze the justifications politicians use to adopt different politicking procedures. We know, however, that the viability of this strategy depends on the feasibility of conducting research like this in contexts of democratic backsliding. Moreover, we only analyzed strategies involved in the battle with the government around democratic backsliding. We did not include other potential strategies that bureaucrats and politicians can enact in different types of battles (including practices of corruption, clientelism, and others). Future studies could also include other kinds of disputes in the analysis.

Another limitation of the article is that we only analyze one case—Brazil—which is also justified by the exploratory nature of the research. However, future studies could deepen the understanding of politicians’ and bureaucrats’ interactions and explore the comparative potential of the findings with those of other cases—including with different degrees of democratic weakness. Regarding the comparative approach, future studies could also explore the differences among bureaucrats, such as their profile, sector, and policy characteristics, and explain variations in the strategies of politicking procedures used. As the findings and these conclusions show, the paper opens an avenue for future studies regarding democratic backsliding, bureaucrats, and the uses of law.

Nevertheless, we have set an important basis for future research on the topic. We build on the understanding that the interpretation of institutional resources is part of agent’s routines in organizational settings (March and Olsen 1975, 1996, 2004) to conceptualize the political action of bureaucrats and politicians in contexts of democratic backsliding. We focused our analysis on how such actions unfold over the legal basis of modern states. By conceptualizing bureaucrats’ and politicians’ relationship over the use of law as a tug of war, we delineate analytical categories of political action to advance or obstruct authoritarianism within public administration, which can be used to analyze other contexts and contribute to cross-case analysis (Bauer 2023). Such a dispute has both practical and theoretical implications for public administration. As for the first, we brought to light challenges imposed on public bureaucracy in times of democratic backsliding and their effort to operate institutions to preserve representative democracy and the state’s foundational features. As for the theoretical contribution, we approach the law-management nexus in a dynamic manner, broadening the procedural politicking interpretation for both bureaucrats and politicians. In this tug of war, the rigidity of the law becomes the ultimate managerial strategy for preserving states’ backbone features—the administration structure, the existence of policies, and the maintenance of a high-quality bureaucracy. That is to say that, in contexts of democratic backsliding, claims to flexibilize the legal apparatus in favor of performance do not hold if we want to have any state left to manage.

SUPPLEMENTARY MATERIAL

Supplementary material is available at the Perspectives on Public Management and Governance online (www.ppmg.oxfordjournals.org).

Acknowledgements

The authors thank Professors Alketa Peci, Alasdair Roberts and William Resh for comments on previous versions of this papers. Authors also thank the participants of IWPP 2022 for the discussions about democratic backsliding that inspired our analysis. We thank Muriel Akkerman Aronis for helping in the data analysis.

FUNDING

This work was supported by The São Paulo Research Foundation, FAPESP (grant numbers 2017/24750-0, 2019/13439-7—Cepid, Centro de Estudos da Metropole, 2019/204495-5 to Gabriela Spanghero Lotta); and the National Council for Scientific and Technological Development (CNPQ) (grant number 308561/2021-0 to Gabriela Spanghero Lotta); and the Coordination for the Improvement of Higher Education Personnel (CAPES) (Finance code 001 to Mariana Costa Silveira and Iana Alves de Lima); and Fundação Getulio Vargas’s Sao Paulo School of Business Administration (FGV EAESP) (teaching assistant scholarship to Iana Alves de Lima).

REFERENCES

Footnotes