DEMOCRATIC TRANSITION AND ACCESS TO INFORMATION IN MEXICO

Although many observers date Mexico’s democratic transition to the 2000 presidential election, scholars of Mexican political development trace its roots back to the late 1970s (see Cleary Reference Cleary2010; Rodríguez and Ward Reference Rodríguez and Ward1995). The gradual development of electoral competitiveness and political autonomy in subnational units of government took place largely hand-in-hand. Under the PRI, despite a de jure federal system which spelled out a three-tiered system of government, Mexican states had little de facto independence from the national government. The PRI centralized decision-making authority with the institution of the presidency, and geographically concentrated power in Mexico City (Ward and Rodriguez Reference Ward and Rodriguez1999). Governors replicated the power of the presidency on the state level, rendering state legislatures irrelevant (Cornelius Reference Cornelius, Cornelius, Eisenstadt and Hindley1999).

Importantly, it was the very de jure decentralization—largely ignored in practice by the PRI—that offered the testing ground for other parties to begin to compete. Opposition parties specifically pursued a bottom-up strategy because they saw a greater chance of winning elections at the subnational level, given the uneven geographic distribution of their support and the PRI viewing the stakes of losing such races as much lower (Mizrahi Reference Mizrahi2003; Shirk Reference Shirk2005). The PAN won its first governorship in 1989 in Baja California, having already won a variety of municipal and local elections under its strategy of bottom-up contestation (Shirk Reference Shirk2000).Footnote ⁵

In the 1990s, with changes to the constitution in 1995 (under Article 116) as well as earlier changes to the electoral code, de facto independence of Mexican states (re-)emerged (Merchant and Rich Reference Merchant and Rich2003). These legislative changes provided for more competitiveness on the state level, particularly in Mexico’s unicameral state legislatures. Beer (Reference Beer2001, Reference Beer2003) contends that this competition led to more effective government, allowing for the institutionalization of democratic practices within state legislatures.Footnote ⁶ Careaga and Weingast (Reference Careaga, Weingast and Rodrik2003) and Hecock (Reference Hecock2006) both argue that more competitive subnational governments led to better government performance and public goods provision.

Levels of electoral competition have varied significantly across Mexican states (Beer Reference Beer2001). Indeed, Beer (Reference Beer2003, p. 5) writes that “Mexican states evince substantial variation in levels of electoral competition across states and through time while many structural and cultural variables are held constant.” As a result, the variation across Mexican states provides a good test case in which to study the politics of institutional reform. Cross-national research has been criticized for its inability to take into account unobserved heterogeneity between countries, often due to deep-rooted historical, cultural, or institutional differences. In part to deal with such criticisms, scholars of institutional design and change have increasingly turned to subnational political units as grounds to test mechanisms and relationships they have examined in cross-national analysis.Footnote ⁷ Analysis of subnational units such as federal states provide fertile grounds for testing cross-national hypotheses because of the ability to make more controlled comparisons and more meaningfully code data (Snyder Reference Snyder2001).

While the right to state information was included in Mexico’s 1977 constitutional reforms, and opposition PAN legislators had proposed a law in 1997, effective access to information was not possible during the decades of PRI control. When the PAN’s Vicente Fox was elected to the presidency in 2000, however, he promised in his campaign to present an ATI law to the Congress during the first year of his term (Pinto Reference Pinto2009).

The draft law that was leaked to the public in 2001, however, was criticized by many for the limited scope of information covered and the weak enforcement provisions. In response to this, an advocacy coalition formed, made up of civil society, journalists, and academics. Known as the “Grupo Oaxaca,” the coalition held conferences and workshops, kept the issue in the news, and, with assistance of international experts, drafted their own stronger version of the law (Michener Reference Michener2011a). Grupo Oaxaca convinced legislators from the PRD and ultimately from the newly-in-opposition PRI to support them, while the PAN was ironically the strongest opponent of their proposal (Pinto Reference Pinto2009). However, the sustained lobbying and media pressure by advocates ultimately succeeded, and the version of the law which was passed by the Congress and signed into law on June 10, 2002 was only slightly weaker than the Grupo Oaxaca proposal (Michener Reference Michener2011a ).Footnote ⁸ Indeed, the law was hailed as a major achievement by the Fox presidency, and as a model for other countries in Latin America and around the world (Mendel Reference Mendel2008; Michener Reference Michener2011a).

While implementation of the federal law faced many challenges, it has been broadly successful. Over 350,000 information requests were filed between 2003 and 2008, by requesters ranging from individual citizens to investigative journalists to businesspeople (Bookman and Guerrero Amparán Reference Bookman and Amparán2009). Research has found the law to have beneficial effects in areas ranging from more accountability in environmental policy (Baver Reference Baver, Laboy-Nieves, Schaffner, Abdelhadi and Goosen2008) to increased ability to monitor corruption (Benavides Reference Benavides2006). Activists have used ATI requests to uncover information in key areas such as maternal mortality (Díaz Echeverría Reference Díaz Echeverría, Fox, Haight, Hofbauer and Sánchez2007). As a respondent in an interview of public administration professors in Mexico stated, “This law is a step forward in the process to make our institutions more accountable and our citizens more participative” (quoted in Benavides Reference Benavides2006, p.475).

Access to information requests have also been used by journalists to expose corruption, both in Mexican and foreign media. For example, the Eme-Equis journalist Fátima Monterrosa (Reference Monterrosa2008) filed numerous information requests with the Office of the President and other agencies in carrying out her 2008 investigation of the Estado Mayor Presidencial—the Presidential Guard—for misuse of funds. The Pulitzer Prize-winning New York Times investigation into Wal-Mart’s use of bribery in Mexico was also carried out in part through the use of information requests.Footnote ⁹ Alejandra Xanic von Bertrab’s 18-month investigation involved hundreds of accesses to information requests filed with government offices. Indeed, von Bertrab said “I was shocked at how much they respected that law,” and “it was a great joy as a Mexican to prove how well the transparency law works.”Footnote ¹⁰

However, while the federal ATI law applied not only to federal agencies and the presidency but also to the legislative and judicial branches of government, it did not apply to Mexico’s 31 states, the federal district of Mexico City, or any entities under their jurisdiction. Instead, it mandated that states pass their own laws, which would have to be accomplished separately by each state’s legislature and governor. Because many public services and functions, in areas such as health, education and social infrastructure, had been devolved to state and local governments as a result of reforms in the 1980s and 1990s (Moreno Reference Moreno2005),Footnote ¹¹ these state-level laws would be of great importance to citizens seeking information about issues mattering for their daily lives. Indeed, between 2003 and 2010 (the years for which data was available), government expenditure at the state level in Mexico accounted on average for 36.8 percent of total government expenditures.Footnote ¹² Given this considerable share, state-level activities would represent a major gap in Mexico’s transparency regime if not covered by state-level laws.

In 2003, before most states had passed state-level ATI laws, Doyle (Reference Doyle2003, 64), wrote about the continuing difficulties in obtaining access to information from local levels of government:

Similar to the federal ATI law, while Mexico’s state-level ATI laws face many challenges of implementation, they have for the most part not been mere “window-dressing” once passed. Indeed, the large numbers of information requests made using them speak to their importance. The number of state-level requests across all states rose from 44,075 in 2006 to 81,587 in 2007, 138,615 in 2008, and 219,941 in 2009 (López-Ayllón Reference López-Ayllón2010). In fact, in 2009 almost as many requests were filed with state governments as with the federal government, which received 225,835 requests in that year. Figure 1 in the Online Appendix shows the growth in numbers of requests from 2005 to 2009 for states with available data, based on data from López-Ayllón (Reference López-Ayllón2010). And while implementation of and compliance with these laws has tended to vary in practice, they function relatively well in most states. A 2010 study submitted 1,810 requests to a variety of agencies across all states, recording data on both the time frame and quality of responses. The average response time across all states was only 13.45 days, and in only two states was the average response time greater than 20 days. Further, in all but a few states the study concluded that the average quality of responses offered sufficient detail to be useful to citizens (López-Ayllón Reference López-Ayllón2010).

FIGURE 1.

Legislative Partisanship and the Timing of ATI Law Passage

Notes: Each horizontal bar represents one state legislature, with the shading—light gray for the PRI, dark gray for the PAN, and medium gray for the PRD—reflecting the party with the largest number of seats (either a plurality or a majority). Diagonal lines show cases where two parties were tied for the most seats in a state legislature. New parties are shown as of the dates that new legislators took office, not as of the dates of elections. Dots show the dates that each legislature first passed an ATI law. See the Online Appendix for a color version.

There is also variation in the design of state-level ATI laws, and most laws have been strengthened one or more times after being passed. State laws, as originally adopted, varied in the the range of sujeto obligados (obliged state-level agencies) under their purview, whether or not they created independent agencies to handle appeals and oversight, the structure and powers of those organizations, the procedures for making requests and the deadlines for officials to respond to requests and appeals (Merino Reference Merino2006).

However, some state laws actually went further than the national law, covering political parties and private organizations receiving public funding among the subject organizations. Variation in design persists to this day, with many state laws still failing to meet international standards (Terrazas Tapia Reference Terrazas Tapia2014). However, there is evidence that legal design may not be the most important factor in shaping the effectiveness of ATI laws in practice. López-Ayllón (Reference López-Ayllón2010) found no clear correlation between the strength of state ATI laws on paper with their performance in practice, concluding that “having solid laws is no guarantee of positive results in websites and citizen requests” (p. 22). This mirrors the cross-national context, whereby many laws that adhere closely to international standards on paper perform poorly in practice, while many other laws function relatively well despite shortcomings in their legal design (Michener Reference Michener2011a; Neuman and Calland Reference Neuman, Calland and Florini2007).

Where Mexico’s state-level ATI laws have been reformed at later points after initial passage, they have generally been strengthened rather than weakened, with many subsequent changes in fact extending the range of sujeto obligados and the powers of independent oversight agencies. In particular, a constitutional reform in 2007 set clearer standards for legal design, and many states’ laws were reformed to meet these new standards (Bookman and Guerrero Amparán Reference Bookman and Amparán2009). For example, many states initially lacked independent appeals and oversight agencies modeled after the federal Instituto Federal de Acceso a la Información, but created such agencies in order to meet the new standards (Bogado et al. Reference Bogado, Martinez-Morales, Noll and Bell2007).

Since the 2007 reform was a major milestone in strengthening access to information at the state level in Mexico, it is important to establish that state-level ATI laws in Mexico could still serve as tools to obtain information and monitor government officials even before the 2007 constitutional reform.Footnote ¹³ An expectation on the part of political actors that these laws could potentially “matter” in practice is crucial to our theory that those actors weighed the expected costs and benefits of passage. If state-level ATI laws could be expected to be mere “window dressing” after passage, no such calculations would be necessary.

Importantly, large numbers of requests were made even before the reforms, and the majority of requests received positive responses. According to data compiled by López-Ayllón (Reference López-Ayllón2010) from the states where laws were already passed by 2005 or 2006 and where data were available, individuals received the information they requested in 74.8 percent of instances in 2005 and 72.9 percent of instances in 2006. This falls in the same range as responses to requests at the federal level, where in 2005, 73 percent of requesters received information in some form (Fox and Haight Reference Fox, Haight, Fox, Haight, Hofbauer and Sánchez2007, p. 43). At the state level, individuals also received responses in, on average, 7.4 days in 2005 and 8.7 days in 2006. The growth in numbers of requests in each state, illustrated in Figure 1 in the Online Appendix, shows that while in some states sharp increases in requests took place after 2007, in many other states the growth followed a smoother trend over time.

One example of the uses of state-level ATI laws to hold officials to account comes from Coahuila in 2005. A civil society group used a combination of local-, state-, and federal-level information requests to show that the municipal water company in Saltillo had illegally overcharged over one hundred users, resulting in refunds for the individuals and a 1.6 million peso fine for the company.Footnote ¹⁴ More recently, state-level ATI laws have been used by civil society organizations to benchmark and compare the quality and transparency of government across states on issues like discrepancies in police officer salaries and benefits (Ruelas Serna and Dupuy Reference Ruelas Serna and Dupuy2013), and the use (and misuse) of official advertising budgets by elected officials (Sánchez Reference Sánchez2013).

While variation in the design, implementation, and effectiveness of state-level ATI laws in Mexico clearly exists, these are not the main focus of the present study.Footnote ¹⁵ The initial passage of these laws is our primary focus, representing a puzzling decision by political actors to create new constraints, risks, and costs which they will face in the future. While some ATI laws are stronger than others, Michener (Reference Michener2011a, p. 149) argues that “‘minimally effective’ is perhaps a more apt descriptor of a strong disclosure law [than ‘strong’ or ‘weak’], such is the universal resistance of authorities to surrendering sensitive information.” Even minimally effective laws offer the potential to hold political actors to account, and can empower journalists, civil society, and individual citizens. The remainder of this study thus focuses on explaining the initial passage of Mexican state-level ATI laws.

Variation in the timing of passage of state-level ATI laws is of clear real-world importance to citizens and organizations throughout Mexico, as well as offering an opportunity to test broader arguments about the drivers of institutional reform. In the time period between passage of the first law in 2001 and the last in 2007, citizens, journalists, civil society groups, and opposition politicians in “laggard” states did not have the same capacities to monitor and hold to account their political agents as did those in “leader” states (Morris Reference Morris2009). Indeed, this time period covered a crucial phase in Mexico’s democratic transition.

While two states, Jalisco and Sinaloa, had actually passed ATI laws while the federal law was still being drafted (see Guerrero Gutiérrez and Ramírez de Alba Leal Reference Guerrero Gutiérrez, Alba Leal and López-Ayllón2006), many other states took years to pass their own equivalents, delayed by resistance and opposition from state politicians. The last state to complete passage of its ATI law, Tabasco, did not do so until February 2007, just over five years after the first state law was passed in Jalisco.Footnote ¹⁶ Table 1 lists each state in order of ATI law passage, with the dates that each law was approved by the state legislature and published by the governor’s office.

TABLE 1.

Dates of Passage for Each State’s Access to Information Law

Note: Dates of legislative approval preceded dates of publication by governors’ offices by anywhere from one day to several months.

This variation in the timing of passage across Mexico’s states cannot simply be explained as a function of entrenched incumbent PRI parties refusing to relinquish their monopoly on state information and newly empowered PAN or PRD parties opening up the state to new transparency. In different states at different times, members of each party served as both advocates and opponents of ATI laws. Indeed, while the first state law in Jalisco was passed by a PAN legislature and governor, the second law was passed in Sinaloa by a PRI legislature and governor. Even in Jalisco, it was PAN members of the legislature who drove passage of the law, while the PAN governor, Francisco Ramírez Acuña, did not support the law and sought to delay and weaken it, though he ultimately did not veto the law’s passage (González Reference González2007, p. 73).

Figure 1 provides one way to examine the relationship between partisanship and the timing of passage. Each horizontal bar reflects the party with a plurality of legislative seats in each state, arranged in the order in which their legislatures passed ATI laws. In order to keep the figure as simple as possible, the shading for each party—light gray for the PRI, dark gray for the PAN, and medium gray for the PRD—reflect the party with either a plurality or a majority of seats (see the Online Appendix for a version in color). Diagonal lines in two different shades of gray indicate cases where two parties were tied for the most seats in a state legislature. New parties are shown as of the dates that new legislators took office, not as of the dates of elections. Finally, the dots show the dates that each legislature first passed an ATI law. This figure shows that, while many legislatures where the PAN was the largest party were among the “leaders” in passing laws relatively quickly, and many legislatures where the PRI was the largest party were among the “laggards,” this characterization is too simplistic to capture all the variation in timing. In fact, many legislatures where the PRI was the largest party were also among the leaders in passing ATI laws relatively quickly. Additionally, many legislatures where the PRD was the largest party, and even one where the PAN was the largest, were among the laggards.

POLITICAL COMPETITION AND INSTITUTIONAL REFORM

Many scholars have focused on the relationships between political competition and different types of government reform. While focusing on different types of reform concerning different branches of government, a common theme is that political actors in power must balance the costs of reform, in terms of new constraints or foregone patronage, against the benefits, which often accrue only under very specific sets of circumstances.

The classic work of Geddes (Reference Geddes1994) studied the determinants of civil service reforms in Latin American countries. In a context where political parties relied on patronage and clientelism in the civil services for support, such reforms would impose short-term costs on politicians in exchange for longer-term collective benefits. Geddes argued that only where political parties were roughly equal in power would the slim immediate benefits from passage, in terms of greater support from the public, outweigh the costs of lost patronage opportunities. More recently, Ting et al. (Reference Ting, Snyder, Hirano and Folke2012) argue that civil service reform is a result of incumbents’ desire to insulate bureaucracies when they expect to lose office, and support their argument with data from the adoption of civil service reforms in U.S. states. Besley and Persson (Reference Besley and Persson2011) argue that institutional reforms that create more cohesive institutions—placing more constraints on the executive—are more likely when the prospect of incumbent replacement is high.

Grzymała-Busse (Reference Grzymała-Busse2003, Reference Grzymała-Busse2006) has focused on the role of political competition in shaping the post-transition institutional paths of countries in eastern and central Europe. She argues that political parties were less likely to extract resources from the state and expand public administrations where high electoral uncertainty led them to constrain each other (Reference Grzymała-Busse2003). She also argues that robust political competition led to the creation of new institutions of government accountability and oversight (Reference Grzymała-Busse2006). These institutions, such as civil service regulations, national accounting offices, and anticorruption laws, served two political purposes. First, they served as insurance in case incumbents lost power, as “a way of constraining one’s political opponents from exploiting their access to state resources for their own gain,” and second, they enabled incumbents to constrain themselves, in order to “limit their discretion to extract state resources for fear of adverse publicity and electoral losses” (Grzymała-Busse Reference Grzymała-Busse2006, p. 15).

The insurance approach to judicial independence (Epperly Reference Epperly2013; Ginsburg Reference Ginsburg2003; Hanssen Reference Hanssen2004; Landes and Posner Reference Landes and Richard A1975; Nunes Reference Nunes2010; Ramseyer Reference Ramseyer1994) expects that when groups in power anticipate a serious risk that they may soon lose power, they can strengthen an independent judiciary as a way to protect the rights of groups out of power. In the Mexican case, Finkel (Reference Finkel2005) argues that the 1994 judicial reforms by PRI President Zedillo served the purpose of insurance, to protect PRI elites in the event that their party should lose power. Ingram (Reference Ingram2013) finds that political competition in Mexican states drove increases in judicial spending prior to the PAN’s 2000 presidential victory, but that afterwards its effect was dominated by ideological considerations.Footnote ¹⁷

O’Neill (Reference O’Neill2003, Reference O’Neill2005) makes a similar argument about the decentralization of government in Latin American countries. She argues that when a ruling political party expects that it may lose national power, but has the potential to remain subnationally strong, it can decentralize authority as a way to ensure some enduring political power in at least some parts of the country. In some cases, these future benefits can outweigh the present costs of giving up power to lower levels of government.

Alt, Lassen, and Rose (Reference Alt, Lassen and Rose2006) and Alt and Lassen (Reference Alt and Lassen2006) examine fiscal transparency in the context of American states and OECD countries, respectively. Building on principal-agent models of politics (Barro Reference Barro1973; Ferejohn Reference Ferejohn1986), they question why politicians (the agents) would increase the transparency of fiscal policymaking, thereby better enabling voters (their principals) to observe their actions, thus limiting the ability of the agents to pursue individual or partisan goals. They find that when the probability of losing office is large, incumbents can increase fiscal transparency as a way to “tie their own hands but also those of their potential successors” (Alt, Lassen, and Rose Reference Alt, Lassen and Rose2006, p. 35). They also find that under divided government, politicians may increase fiscal transparency in order to tie the hands of those with whom they share power.

Another body of work examines administrative procedures acts (McCubbins, Noll, and Weingast Reference McCubbins, Noll and Weingast1999, Reference McCubbins, Noll and Weingast1987), making the case that while such laws codify new individual rights and procedures of due process, they are actually passed as a means for incumbents to insulate their policies from future changes, and to enable “fire alarm” oversight of bureaucratic agencies (McCubbins and Schwartz Reference McCubbins and Schwartz1984). De Figueiredo (Reference de Figueiredo2002) develops a model in which electoral competition is a primary driver of such insulation. De Figueiredo and Vanden Bergh (Reference de Figueiredo and Vanden Bergh2004) study the timing of passage of state-level administrative procedure acts in the United States, and find that these acts are most likely to be passed by Democratic legislatures when they are likely to subsequently lose power, or when the governor is Republican.

Other authors do not find support for political competition as a driver of reform. For example, Bussell (Reference Bussell2010) studies the creation of computer-enabled service centers across Indian states, and finds no evidence in favor of competition-related variables, instead concluding that in more corrupt states, political actors are less likely to adopt as they avoid the consequences of increased transparency. While concerned more with public goods provision than with the creation of specific reforms, Cleary (Reference Cleary2007) finds that municipal-level electoral competition in Mexico has no effect on government performance. Chhibber and Nooruddin (Reference Chhibber and Nooruddin2004), studying party competition in Indian states, find that multiparty competition between more than two parties actually yields worse public goods provision than competition between two parties. They argue that this is because under two-party competition, politicians must appeal to the public at large, whereas under multiparty competition they can win by mobilizing narrower segments of the population.

Altogether, a large body of scholarship has investigated the relationships between political competition and various institutional reforms. However, rarely have individual studies been able to clearly differentiate between mechanisms. This article contributes to this literature with a new case of state-level reforms in Mexico, in which detailed data allow more nuanced testing of theoretical expectations. In the section below, we differentiate between mechanisms by which political competition may be expected to lead to reform, and the differing empirical expectations for each.

SUPPLEMENTARY MATERIALS

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