Building a new Russia

By Quentin Langley and Tony Brown

Russia has a population of almost 150 million speaking over 100 languages. It spans two continents and nine time zones. It is an empire unsuited to centralized control. Significant change has come in the past through protest, revolution, and civil war. To combine stability with the flexibility needed for such a diverse population is no easy task. The current constitution is failing, though it has been in force longer than any other since the 1936 constitution, which bore no relationship to the actual system of government in the then Soviet Union.

So what should a new Russian Constitution include to protect the rights of Russian citizens and prevent subversion by populists and tyrants? Some of the world’s most stable constitutions – think Sweden, the UK or Switzerland – have evolved incrementally over centuries. But there have been notable and successful attempts to build constitutions to a grand plan: the United States, post-war Germany, and the European Union all have clear divisions between the branches of government and between central authority and the constituent parts.

The legislature:

The Russian Federation’s current legislature is modeled on the US Congress. The Duma (lower house) represents the people. The Federation Council (upper house) gives equal representation to all the “states” – variously called oblasts, republics, krais, and federal cities. In the US, the Senate has grown in power since the 17th Amendment mandated direct election of Senators. Perhaps the EU model, where the Council of Ministers more expressly represents member states, would be a better approach. Members of the Federal Council would serve no fixed term but only at the pleasure of regional legislatures and could be recalled at any time. A change of government in any republic or oblast would normally lead to a change in the delegation to the Federal Council.

To allow for the broad diversity of the Russian populace, the Duma should be elected by a system which respects minority views. The Single Transferable Vote system used in Ireland ensures that each voter has several representatives covering a multi-member constituency. The power of political parties is diluted. Voters can typically choose between competing members of the same party as well as between parties, and independents with broad support can easily be elected. Being everyone’s second choice is a viable electoral strategy.?

By letting voters choose not just a party, but also between individual candidates, who may have been nominated by parties or not, STV gives much greater power to individual voters than either the list system used in much of continental Europe or the plurality system used in the UK, the US, and India.?

While legislation would require approval by both chambers, the Duma, representing the people, would take the lead in holding the executive to account, with powerful audit and investigatory committees. The Federal Council would approve government appointments such as ambassadors and judges. It would also need to ratify treaties.??

The Executive:

The United States is a singular example of a successful liberal democracy which puts its executive branch under the control of a president who is (almost) directly elected. While France has a hybrid system, the “Westminster model”, in which the executive is accountable to the legislature is much more common, at least among countries which respect human rights and are governed by the rule of law.

Indeed, countries which have shifted from a Westminster model to an executive presidency, such as Zimbabwe, have often done so specifically to dispense with constitutional constraints and accountability.?

A prime minister, arising from parliament and accountable, not just every four or five years, but day-to-day, has a much better record of stability. The head of state needs to be a separate person, constrained to ceremonial duties.

The head of state:

While direct election of a ceremonial president is common, indirect election, as in Germany, Italy, and many other countries, discourages imperial pretensions in presidents, and constitutional monarchy is widely used in stable, liberal, societies. Russia has no history with liberal monarchies, so indirect election seems the best path. Perhaps the Federal Council, representing the states, should elect the President.

The judiciary:

Neither the ceremonial president nor the government should have any role in nominating judges. The Federal Council should elect a Chief Judicial Officer for this task, as well as the Council as a whole approving the nominations.

The use of force:

The postwar German Basic Law specifically put the military under the control of the federal government and all policing powers under the laender (states). Such a division is important in a country which has been as prone to populism and tyranny as Russia has. The federal government should be structured in such a way that it would simply not be a tempting path to power for a potential tyrant.

The power to tax:

Probably the single biggest driver to the growth of the US federal government’s power in the twentieth century was the 16th amendment which gave Congress the power to levy an income tax. By contrast, the European Union has no direct power to tax, and is wholly dependent on formulae agreed, unanimously, by the member states.?

Moreover, in the US, Congress forces states to adopt federal policies by use of the tax-and-spend power. For example, it has forced states to adopt a minimum age for buying alcohol by withholding interstate highway projects from states which did not comply.?

Another example would be the way in which the federal government has come to dominate education policy, even to the point of specifying a “common core” for the curriculum in schools. Education is not among the limited powers delegated to the federal government. Insofar as there were government funded schools when the Constitution was agreed, it was entirely at the local level.?

But the federal government provides a big slice of funding for schools. States and municipalities are free to reject this funding, and the control which comes with it, but the public in those states still have to pay the federal taxes. Citizens would be paying for schools twice over in order to preserve local control.??

Arguably, this is an abuse of power - and such ‘misuse’ is highly undesirable in Russia where the longstanding problem has always been the concentration of power at the center and generally in the hands of a single individual.?If the Russian federation is to have the power of national defense, then it will need some power to tax, but this should be both kept to a minimum and constitutionally constrained. As in the EU, the central power should be financially dependent on the states, not the other way round.

The capital:

Should Moscow remain the federal capital? Peter the Great moved the capital to St. Petersburg to encourage a more westward focus. In postwar Germany, the imperial capital of Berlin was in the Soviet zone, so not available to the Federal Republic in West Germany, but even in the west, the major cities were passed over in favor of modest Bonn. The European Union has always based its executive in one of the smaller member states. The US built a new capital, outside the control of any state, and most state capitals are small cities away from the major conurbations: Albany is a fraction the size of New York; Austin is not Houston or Dallas; Sacramento is not Los Angeles or San Francisco.

Perhaps Novosibirsk, Russia’s third city, in distant Siberia, would be suitable, clearly indicating that federal empire-building will not be tolerated.

Defined federalism:

The US Constitution sets limited powers for the federal government, with all other powers reserved to the people or the states. We have already seen that in huge areas of policy, such as education, and down to the granular level of an age for buying alcohol, this has been evaded by the federal power to tax. But the European Union has no such power to tax, and yet it has been subject to creeping centralization for decades. How has this been achieved??

One factor is the constant change in both membership and in the governing treaties. The treaties which form the constitution of the EU are far less stable than the US Constitution. There have been 19 new treaties defining the governance of the European Communities/European Union since 1951 and nine treaties concerned with countries or territories either joining or leaving the Union. The number of member states has risen from six to 27 (peaking at 28) over the same period. The US Constitution, by contrast, has had just 27 amendments in the past 230 years. The most recent - the only one within the last five decades - was a “zombie” amendment proposed by James Madison almost 200 years earlier, but which took a while to ratify. European treaties are much longer and more complex than the US Constitution. Even though some countries require a popular vote to ratify a new treaty, the complexity means that there may not always be informed consent. When ratifications (which need to be unanimous) have failed, cosmetic changes are agreed, and the dissenting countries encouraged to vote again, until they get their decision right.?

In both the EU and the US, courts have generally taken broader views of the powers delegated to the center as time has passed. The most blatant example in the US, is that alcohol prohibition required a constitutional amendment (now repealed), but prohibition of other drugs has been allowed under a new, and much more permissive, reading of the powers delegated to Congress.?

No constitutional provisions can be secure against determined efforts to subvert them, but if plain and simple language - more akin to the US Constitution than to EU treaties - is used, and the states maintain control of the judiciary in the transparent manner we have proposed above, then such protections have the best possible chance of surviving.?

The right to secede:

A federation as diverse as Russia may not be sustainable. Its borders – like so many – are purely accidental, and should not be set in stone. If any republic of oblast wishes to secede from the federation its right to do so should be respected, and procedures for democratic secession should be established and guaranteed.

A charter of rights:

All modern constitutions require a charter of individual rights which the judiciary can uphold against the executive and legislature. That’s one reason to have the judiciary arising from the states and not from the federation. Rights to free expression and to a fair trial are probably the most fundamental.?A person’s security in person and property, and protection against arbitrary arrest, are central to all human rights and both federal and state governments must be constrained from infringing them.

The Rule of Law

Above all, the successful delivery of individual rights and the prevention of bribery, corruption and arbitrary authority depend upon the rule of law. The difficulty of establishing this is not to be under-estimated and has taken centuries of evolution in those states where it is most successful and taken for granted.?At minimum it requires an independent judiciary, no secret police (as distinct from intelligence services) and for controls over the ‘ordinary police’.?

The FSB must be abolished. Intelligence services must operate under army and naval command without either functioning as a separate organization in their own right. We suggest city and regional police forces (similar to the UK model) to avoid any one individual being able to control the police across the entire Russian Federation.

At the time of writing, the Russian government is on the edge of destruction. If President Putin can spin his Ukraine adventure as a success, his already untrammelled power will be further enhanced. In the alternative scenario that he is humiliated, the central authority could completely implode.

We offer these thoughts as a possible basis for rebuilding a modest path to a stable future.

?

Quentin Langley is an academic, consultant and writer. He teaches at Fordham University’s Gabelli School of Business in New York City. He is the author of Brandjack and of Business and the Culture of Ethics.

For ten years Tony Brown was a political adviser employed by the European Parliament. This followed many years working as a political consultant, during which time he was a candidate for both the British and European Parliaments.?