It didn’t even take a day.
The ink was barely dry on Andrés Manuel López Obrador’s energy reform act — which gives priority to public over private sources of energy in the nation’s energy grid — when it was hit with its first legal challenge. The day after the law was signed, a second-district judge issued an injunction against it, conveniently extending his ruling to cover the entire energy sector in order not to give the plaintiffs a “competitive advantage.”
In subsequent days, the injunctions (known in Mexico as amparos) continued to rain down, reaching some thirty-four by week’s end, with dozens more in the pipeline. In a nation where innocent people regularly languish for months or even years in prison due to the lack of a timely amparo, private energy companies had managed to stop the new law in its tracks in less than twenty-four hours.
The legal strategy is being coordinated by the aptly named Consejo Nacional de Litigio Estratégico (National Council of Strategic Litigation), an association of lawyers and business interests linked to an ecosystem of think tanks whose job is to beef up lawsuits with its technical and financial expertise. Heading up the board of directors is a pair of familiar names: Gustavo de Hoyos and Claudio X. González, the powers behind the throne of the unholy alliance of right-wing parties seeking to undo the MORENA majority in Congress.
The objective is clear: to gum up not only AMLO’s energy law but his entire program in a never-ending process of litigation, succeeding in the courts where they have failed at the ballot box. Other targets of the court’s rapid-fire volleys of lawsuits have included the front-of-package labeling law for processed foods, the AFORE pension law that reduces commissions and increases employer contributions for retirement accounts, and the cancellation of the Texcoco airport project, which is being turned instead into an ecological park. Although efforts to stop these and other initiatives have failed, they have forced the government to devote countless hours and resources to defending them.
For its part, Mexico’s judiciary has done little to endear itself to the public. Spectacularly paid and virtually unaccountable, judges across the country have in recent years been snarled in a series of scandals involving nepotism, corruption, and influence trafficking. The accusations have gone right up the ladder to the Supreme Court.
In 2019, Justice Eduardo Medina Mora was forced to resign on suspicions of money laundering, having allegedly stashed some $100 million pesos (US$5 million) in overseas accounts. Three other members of the top bench are currently embroiled in scandals of their own. Meanwhile, with judges routinely issuing amparos to protect the elite from facing the law, it is hard to escape the perception of them being a committee at the service of the rich and powerful. Indeed, the same judge that suspended the energy reform act, Juan Pablo Gómez Fierro, has a troubling history of providing get-out-of-jail-free cards to powerful interests such as the magnate Carlos Hank Rhon and Juan Collado, the personal lawyer to former president Enrique Peña Nieto who is currently awaiting trial for the use of illicit funds and links to organized crime.
Upping the Ante
From the beginning, AMLO has adopted a strategy of upping the ante on his energy policy. His first attempt to change the rules governing the nation’s energy grid was by executive order; when this was turned back by the courts, he introduced broader legislation that was passed by Congress.
Faced with a second legal onslaught, he then announced that, if the courts declare the law to be unconstitutional, he would introduce a constitutional amendment (not an idle threat, as these are much easier to pass in Mexico than the United States). This, he has hinted, would be even broader in scope. As the next Congress would be the one to vote on such an amendment, it has the added advantage of turning the Right’s lawfare into a rallying cry for MORENA on the campaign trail. At the same time, the president is fast-tracking a parallel law that, in the case of threats to the economy, energy, or national security, would empower the government to cancel licenses for private companies in the processing and refining of oil and natural gas, as well as the import and export of oil and gasoline.
The use of conservative opposition as a springboard to more sweeping reform has its precedents in Mexico. When oil workers affiliated with the Confederation of Mexican Workers won a favorable ruling from the National Arbitration and Conciliation Board in 1938 that authorized an increase in salaries and benefits, American and British oil companies deployed the amparo; only after they lost and refused to obey the ruling did President Lázaro Cárdenas — who had previously intervened on two occasions to interrupt strike actions — proceed to nationalize the industry. Although the complex situation also contributed to the long-term effect of subsuming the nation’s unions into a hegemonic one-party state, the turning of an adverse crisis into a political opportunity is something the Left of today still has much to learn from.
Fixing the Game
Another area of conservative entrenchment has been the National Electoral Institute (INE), which continues to do all it can to fix the game ahead of the June 6 midterms. In January, the INE first attempted to gag AMLO’s popular morning press conferences, alleging that they constituted “governmental propaganda” and thus could not be broadcast in the official two-month campaign season leading up to the election. Recognizing the conferences to be a “new and original model of governmental communication,” the Federal Electoral Tribunal struck down the ban on April 1, days before it was to go into effect.
The INE then took to something significantly worse: attempting to fiddle with the rules of the election itself. Mexico’s lower house — the Cámara de Diputados or “Chamber of Deputies” — is made up of five hundred seats, three hundred of which are elected by single-member districts and the remaining 200 by proportional representation. When totaling the results of the two different methods, a party may wind up with more seats in comparison to its overall national vote percentage, a phenomenon capped so that no party is overrepresented by any more than 8 percent.
First, the INE attempted to change the rule to apply to coalitions as a whole instead of individual parties. As AMLO’s ruling MORENA is running in coalition with two other parties this year, for example, the seemingly innocuous change would deprive it of dozens of proportional-representation seats — enough, potentially, to decide the majority. As Article 54 of the Mexican Constitution is quite clear that the limit applies to “parties” and not “coalitions,” the attempt was beaten back. The INE, in turn, pushed back with a new rule called “effective affiliation,” meaning that it would now ascribe to itself the right to assign seats not based on who had actually won them but on the parties the winning candidates were actually registered with.
The institute’s argument was that this would stop the practice of candidates belonging to one party but being elected on the ticket of another. But by authorizing itself to reassign seats, it would be empowering itself to alter the results of the election. Moreover, by waiting so late in the game to issue its rule, it created a mess of a situation where parties had already largely selected their candidates and would have to scramble to adjust. Precisely for this reason, the Constitution also prohibits (Article 105) “fundamental modifications” to electoral law within ninety days of beginning an electoral process.
The structures of electoral systems can and should be vigorously debated. A segment of MORENA wants to eliminate proportional-representation seats altogether; the Workers’ Party, adopting a posture similar to that of smaller parties worldwide, would like to move to full proportional representation. Another route would be to adopt a mixed member “top up” system in order to match the number of seats won by a party with its national vote percentage. But these are decisions for Congress to hash out, not an electoral institute rushing to ram through last-minute changes when it had no problem with overrepresentation in federal elections dating back a full nine years, two of the three won by conservative coalitions benefiting from the exact same rules.
All of this would have been enough to call the INE’s supposed rule as neutral arbiter into serious question. Then it went one better: on March 26, it purged forty-nine MORENA candidates for a range of offices ranging from mayorships to governorships to Congress seats, barring them from running in the upcoming election for the alleged crime of not filing expense reports for their primary campaigns. It was the only major party affected in this fashion.
MORENA’s argument was that, as its candidacies were decided by opinion polls instead of a popular vote, it had no need for expense reports. And in the case that it did, electoral law provides for several other kinds of penalties, including warnings and fines, before resorting to the draconian and unprecedented extreme of tossing out candidacies by the bushel.
The institute’s come-to-Jesus concern for expenses is curious, to say the least, considering it had nothing to say when Enrique Peña Nieto surpassed campaign spending limits by some thirteen times in his 2012 run for the presidency, with the help of dirty money from the Brazilian construction firm Odebrecht; nothing to say when PRI governors from seven states diverted some $650 million pesos (US$34 million) into its party’s 2016 campaigns in “Operation Safiro”; nothing to say about 2018’s “Operation Berlin,” in which a cabal of businesspeople and intellectuals illegally spent millions in anti-AMLO online campaigns out of an operations center located on Berlin Street in Coyoacán, Mexico City.
In fact, one of the beneficiaries of the secret payroll of César Duarte — the linchpin of Operation Safiro, and now in prison in the United States — is running for governor of Chihuahua for the conservative PAN party. Despite being under indictment for allegedly receiving some 9 million pesos (US$450,000) in bribes, not only has the INE refused to revoke her candidacy, it has struck down an attack ad by an opposing candidate for having the nerve to mention the affair.
An Unintentional Gift?
The INE’s underhanded attempts to cook the books contain both possibilities and pitfalls for MORENA. As with conservative attacks in the courts, they could function as a backdoor gift, rallying the base for an election without a strong figure at the top of the ticket and providing it with an incentive to unite after months of bitter internal rows. But by reopening the wounds of candidate selection precisely when it should be focused on campaigning, the party is setting itself up to relive the trauma of a controversial process that resulted in a number of decidedly, and demoralizingly, unpalatable candidates. And if it is unable to withstand the temptation to respond to the institute’s deliberate provocations with an excessively visceral response, these divisions could be further aggravated.
The fact that MORENA continues to face a stacked electoral deck while controlling both the presidency and the Congress may have proved a rude awakening for some. All the more reason, then, for it to up its game.