Federalismo Fiscal da Dívida Pública e o STF: um estudo de caso a partir do MS nº 34.023 e da ACO nº 3363

Abstract

The main objective of the present research is to describe the fiscal federalism of the public debt starting from the Federal Constitution of 1988 and to investigate the role of the Supreme Court in the inter-federative conflicts involving the public debt of the member states, having as case studies the Writ of Mandamus (MS) nº 34.023 and the Original Civil Action (ACO) nº 3363. Thus, the dissertation chapters are organized through the following specific objectives: to analyze the constitutional design of public debt fiscal federalism in the 1988 Constitution, with an emphasis on exposing the federal functions and relations performed by the Union, Senate and subnational government; understand the process of reversing cooperative and solidary fiscal federalism through the economic policy promoted by the Union, with constitutional changes that affected the distribution of resources to States; to analyze how the dynamics of public debt federalism pressure the government relations in Brazil, causing successive fiscal judicial conflicts between the Union and States; based on case studies, to evaluate how the decisions of the Supreme Court in the inter-federative conflicts changed the fiscal federalism of public debt. The main result of the research exposes the fiscal federalism of public debt as the constitutional design of the normative complex of legal and political relations of public indebtedness of subnational entities, plus the primordial performance of autonomous entities and institutions in the authoritative political-legal process of operations, normative regulation, definition of limits and imposition of control. This complex intertwining generates friction and disagreements between the Union, endowed with a threefold function - manager, guarantor, creditor -, and the States submitted to an infinity of federal legislative and infra-legal rules to have access to credit operations. In this conflicting inter-federative financial relationship, the STF acted to promote the federative balance and reduce the differences between political entities. The STF did not encourage the Union to grant privileges to States or to grant new debt forgiveness, but rather, it intermediated the composition of a political solution between central and subnational governments, like an authentic Federation Court, participating in the dynamics of fiscal federalism of public debt.