Return to normality and advanced democratization: scenarios for a normal Russia of the future. Part 4

The design and principles of successful democracies and federations vary widely and are largely a compromise of the particular circumstances of their emergence, subsequent evolution, and accumulated institutional “dependency.” It seems important not so much to write the best recipe for the institutions of Russian democracy, but to identify the key goals of reforms and those problems of institutional design around which the main discussion is unfolding today and, most likely, will continue in the future.

The final part of the report “Return to Normality and Advanced Democratization”, dedicated to possible scenarios for political transformation in Russia and prepared as part of the project “Normalization Platform: Reclaiming the Future”, focuses on key issues of the four main goals of advanced democratization.

In its most condensed form, the outline of a balanced political model can be described by the formula “three decentralizations plus competition.” This means, firstly, the horizontal decentralization of federal power and the transition from the super-presidentialist model to a more balanced distribution of powers within the federal “quartet” “president - government - Duma - Federation Council”.

Secondly, vertical decentralization is the “new federalism”, based on a three-level model of federal, regional and municipal government with a set of powers and resource base assigned to each level.

And thirdly, the decentralization of the power vertical - the distribution of law enforcement powers between the three levels of government and the creation of a system of cross-control designed to limit the possibilities of “privatization” of state violence.

The movement of the discussion on these issues will be determined, however, not only and not so much by the polemics of experts, but primarily by the pressure of a competitive political environment, which is the foundation of the democratic order and the protection of which always remains the main concern of a democratic society.

For the first three sections of the report, see here and here .

4. Advanced democratization: three decentralizations plus competition

Four Goals of Advanced Democratization

So, we propose to distinguish between two horizons of goals for democratization in Russia: the goal of a “return to normality,” which implies the dismantling of dictatorship and a return to the basic standards of electoral democracy and a pluralistic society, and the longer-term goal of advanced democratization, within which sustainable democratic institutions will be formed, opportunities for control over government activities by citizens and public groups will expand, and distributed control over state violence should acquire sustainable forms and become a tradition.

We proceed from the fact that there are no universal and optimal formulas for democracy and federalism - the design and principles of successful democracies and federations vary widely and are largely a compromise of the specific circumstances of their emergence, subsequent evolution and accumulated institutional “dependence”. There are successfully functioning parliamentary and presidential-parliamentary democracies, as well as party-parliamentary and presidential autocracies. In some systems, obvious anachronisms (for example, the election of the US President by an electoral college) are quite successfully adapted to new realities and provide democratic functionality for a long time, and vice versa - quite advanced constitutions often cannot protect the republic from authoritarian turn and political corruption.

Over the past ten years, against the backdrop of the progressive degradation of the political system, discussions about the reform of the political structure of Russia have been quite intense. For example, a clear outline of political reforms was already outlined in Alexei Navalny’s 2018 “presidential program” . Since then, and especially after the damage to the Constitution in 2020 and the start of the war, the number of experiments of this kind has increased, and today we have a whole library of projects, reviews and reports devoted to the political model of post-authoritarian Russia. It contains semi-academic reviews of various institutional solutions to democratization (see, for example, the book by Grigory Golosov “Political Regimes and Transformations” , the work of Irina Busygina and Mikhail Filippov “Great Devolution for Russia” ), and alternative projects of a new Constitution or amendments to the current one ( the project of the “Mikhail Krasnov group” of 2012 , an alternative project of amendments to the Constitution in the collection “Deconstruction of the Constitution” ), and a whole pool of developments for a road map of democratic reforms (the fundamental “Project “Transit”. Road map for the democratization of Russia” by the Free Russia Foundation, the above-mentioned work of Vladimir Milov and Fyodor Krasheninnikov and the project “One Hundred Days After Putin” by the Memorial Center), etc.

Against this background, an attempt to create another version of the optimal institutional design of Russian democracy looks redundant. It seems important not so much to write the best recipe for the institutions of Russian democracy, but to identify the key goals of reforms and those problems and forks around which the main discussion is unfolding today and, most likely, will continue in the future. That is, we should talk more about a map of goals and problem areas rather than optimal solutions.

In its most condensed form, the outline of a balanced political model can be described by the simple formula “three decentralizations plus competition.” This means:

(1) horizontal decentralization: a more balanced distribution of powers within the “quartet” of federal power: president - government - Duma - Federation Council;

(2) vertical decentralization: clarification of exclusive powers, principles of autonomy and relationships between the three levels of government - federal, regional and municipal (“new federalism”);

(3) force decentralization: distribution of force powers between levels of government, creation of a system of cross-control and “two keys” designed to limit the possibilities of “privatization” of state violence;

(4) political competition: measures to ensure transparent and fair electoral and political competition, diversified public policy and media environment, expansion of civil society infrastructure and instruments of direct democracy.

These four key goals define the objectives of the four blocks of political system reforms on the horizon of advanced democratization. At the same time, these reforms will remain incomplete without another one - a reform of the judicial system, designed to lay the foundations for an independent “third branch” of the classical triad of power. However, this issue is not the subject of our consideration here.

Let us only note that an independent judiciary cannot arise as a result of technocratic reform - the condition for its existence is, first of all, the balance of political forces restraining each other and a highly competitive political environment that prevents the “capture” of the state and the judiciary. For high-resource groups (elites), the need for court arises when the possibilities of “forceful” decisions are obviously limited. Comparative studies suggest that the consolidation of judicial power belongs to the later stages of democratization. Of course, the current state of the Russian judicial system will require urgent, “fire” reforms to clear the legacy of the “power vertical” - cleansing the judiciary, changing the principles of its formation and motivation system, ensuring high transparency of the work of courts and court decisions. But these reforms are capable of achieving intermediate rather than deep goals of establishing the judiciary.

Below we will dwell on some key and controversial issues of the institutional design of the “three decentralizations”, not pretending to be a thorough legal study of them, but only to discuss the political content.

Horizontal decentralization: from parliamentary-presidential dualism to the “federal quartet”

Excessive concentration of powers in the hands of the president is a key feature of the current political model, characteristic, however, of many autocracies where the presidential-parliamentary system has mutated into super-presidentialism in conditions of weak democracy. The formula for the distribution of power between the president and parliament in the 1993 Constitution, as practice has shown, did not contain sufficient mechanisms to block presidential dominance and guarantee the prerogatives of parliament. This imbalance became a “gateway” for the expansion of presidentialism. As one of the creators of the 1993 Constitution, Mikhail Krasnov, once noted, in the text of this constitution the design of a presidential-parliamentary republic was balanced for a weak president, while it gave a strong president the opportunity to upset the balance.

Despite the fact that proposals for a transition to a parliamentary system have recently been heard more and more insistently from the ranks of the Russian opposition, they will remain the subject of a long discussion. The main argument, already stated above, is that the natural path seems more likely to be a movement towards a parliamentary system as parties become established and their authority is strengthened, which leads to a gradual reduction of presidential powers (as happened and is happening in a number of European and post-Soviet countries). While the reverse sequence: the introduction of a parliamentary system with the expectation that it will stimulate the development of the party system, is fraught with the formation of party-parliamentary authoritarianism. The formation of a new “party in power” will outstrip the development of other parties and will begin to forcibly restrain it. “Parties in power” are not an exclusively Russian phenomenon, and the patterns of their emergence and expansion in immature democracies deserve special attention. There is no particular reason to simply hope that this will not happen.

At the same time, the need to correct the Russian model in the direction of expanding the rights of parliament and limiting presidential power is actually a matter of consensus in the opposition community (hereinafter we are talking about the model of power laid down in the 1993 Constitution; the 2020 amendments, of course, should be unconditionally and indiscriminately repealed for procedural reasons). However, the scale of the shift in the balance of power in favor of parliament is likely to be the subject of a grueling political battle.

Preferences for the figure of a “strong leader” in Russia, as surveys show, are higher compared to countries with a long democratic tradition, but are quite comparable to those observed in many developing countries, as can be seen from the World Values ​​Survey. These preferences are a reflection of low trust in horizontal organizations and limited experience of interaction with them, that is, not a manifestation of the “genetic code”, but rather an attribute of a certain stage of social development.

Government accountability is a key issue in the balance of power between the two branches. Russian super-presidentialism largely developed as a projection of presidential power over the government, which made it possible to make it a direct continuation and integral part of the expanded presidential office. This state of affairs is typical for successively presidential models, but in such models the president does not have the power to dissolve parliament. The combination of elements of presidentialism (transformation of the government into a subdivision of the presidential office) and semi-presidentialism (the right to dissolve parliament) led to the mutation of the latter into super-presidentialism.

One of the key elements of reform would therefore likely be a system in which the cabinet is at least as accountable to parliament as it is to the president, but also has some autonomy to reflect its dual accountability. Parliament, in turn, must have effective tools for forming and controlling the government. Thus, the model of presidential-parliamentary dualism should be transformed into a system with three members: parliament - government - president.

In general, correction of the presidential distortion of the constitutional structure can be achieved through:

— reduction of the set of constitutional powers of the president (primarily the right to chair meetings of the cabinet and some others; for a detailed list of “problematic” powers of the president, see section “Appendix 3. Legislation of the future Russia: projects and explanatory notes” of the “Transit Project. Road map for the democratization of Russia” );

— expanding the powers of the Duma to appoint the chairman and key ministers of the government (ministers of security, minister of finance, minister of foreign affairs), remove them and control the activities of the cabinet as a whole;

— narrowing of the president’s rights to call new parliamentary elections (in the model proposed in the Transit Project , the prime minister can be either a representative of the parliamentary majority or a compromise figure proposed by the president and approved by the Duma majority, and the dissolution of the Duma occurs if it is not possible to appoint a prime minister within the framework of either the first or second procedure; see the mentioned “Appendix 3. Legislation of the future Russia”);

— limitation of the power powers of the presidential power through the functional decentralization of the “power bloc” and the law enforcement system, as well as the return of political weight and functionality to the Federation Council.

The Federation Council should become another key participant in the now “federal quartet”, ensuring horizontal decentralization of federal power and increasing the potential number of veto players. According to the Russian Constitution, the Federation Council has significant powers to “set up” and control the law enforcement system and at the same time can have enormous weight as an organ of the federalist dimension of Russian democracy. The role of the Federation Council should increase so that the upper house can act as a counterweight to both the presidential power and the Duma.

Federation Council: completion of representative power

Today, more than half of the Federation Council is made up of authorized representatives of the executive branch. Meanwhile, its exclusive competence is the approval of the Prosecutor General, as well as judges and chairmen of the Supreme and Constitutional Courts. Thus, today all these key positions in the law enforcement system are under the direct control of the presidential office. The fictitious nature of the Federation Council also hinders the development of federalism: the regions do not have a platform on which their problems would become part of the national agenda, and the interests of the territories could be lobbied not at the level of their individual representatives, but by party-structured Senate groups.

The “democratic consensus” today is rather that members of the Federation Council should be elected in direct alternative elections by residents of the constituent entities of the Russian Federation. This provision should probably be enshrined in the Constitution: the current language is deliberately ambiguous, and the possibility of different interpretations will create an atmosphere of uncertainty around this body. The election of members of the Federation Council will allow the chamber to return to a real role in the legislative process, in the formation of the judiciary and the prosecutor's office and will strengthen the Federal Assembly, the representative branch of government as a whole, by creating additional restrictions and control procedures for executive bodies.

Theoretically, in the conditions of a steadily competitive system for the formation of regional authorities, a model is possible in which the upper house is formed from representatives of the authorities of the constituent entities of the Federation, as is the case in the German Bundesrat. However, here it is worth taking into account the number of subjects and their weight: a significant part of more than 80 Russian regions are economically insolvent, which will determine their dependence on the executive branch. Fiscal paternalism will once again become the latter’s lever of influence in the upper house. Thus, under the existing federation model, such a mechanism for its formation looks dysfunctional.

The specific design of elections to the Federation Council should be the subject of expert study and serious political discussion. Here it makes sense to dwell on only two questions. For more balanced representation, elections for members of the Federation Council should probably be held in two-member constituencies using a single non-transitional vote system (two mandates are distributed among the candidates who receive the most votes in the constituency). In this case, senators from the region are more likely to be representatives of two competing parties, which together will represent the real majority of the region's voters in the Senate.

The second problem, related to the formation of the upper house, will become increasingly acute as its political role increases. Russia, in essence, never functioned as a federation; its administrative-territorial structure was formed under the conditions of a unitary state, and then mechanically “elevated” to a federal one. One consequence of this is the extreme inequality of subjects. The size of their population varies from 40–50 thousand in the Chukotka and Nenets Autonomous Okrugs and 134 thousand in the Magadan Region to 13.1 million (according to official data) in Moscow, that is, 100 times or more. And these are not extremes, but a systemic problem. Under today's system of representation, the 17 largest constituent entities by population, which contain more than 50% of the country's population (73.5 million), account for 20% of the chamber's seats. At the same time, only 20% of the population lives in half of the least populated regions, represented by half the seats in the Federation Council. That is, citizens of the second group are represented in the Federation Council with a coefficient of 2.5, while the first group is represented with a coefficient of 0.4. The difference in representation is very large.

This imbalance is a political problem. The most represented are sparsely populated areas, while the most underrepresented are large cities with the highest population density, where the main human and economic potential of the country is concentrated. There will be a clear majority in the House, representing economically weaker and more conservative areas and putting forward a request for expanded redistribution, which will be in alliance with the federal government, interested in maximizing its redistributive powers. As we return to real democracy and the Federation Council gains real political weight, this imbalance will become a source of increasingly acute conflicts.

One solution to the problem may be to focus on the model of the German Bundesrat, where the representation of the states takes into account the size of the population. In this case, the representation of subjects in the Federation Council can be determined by a special formula, partly reflecting huge differences in numbers. For example: one mandate per 1 million inhabitants plus one mandate per region, but at least two mandates per subject of the federation. In this case, Moscow receives 14 seats in the upper house (13 million inhabitants + one mandate), and the Magadan region (134 thousand inhabitants) - two. In this scenario, the same 17 largest regions by population (50% of the population) would be assigned approximately 38% of the seats in the House, and the least populated half (20% of the country's population) would be assigned approximately 35% of the seats. Or - according to a different formula, but so that the 17 largest constituent entities by population (50% of the population) have more than a third of the seats in the chamber.

Vertical decentralization: three-tier “new federalism”

Even more than the design of democracies, the design of the world's federations varies and depends on historical, geographic, demographic and political conditions. Finding a balance of interests, rights and responsibilities of subjects, as a rule, is a long and evolutionary process.

The administrative-territorial units of the Russian Federation, as already noted, were formed within the framework of a unitary state and then mechanically elevated to the status of “subjects”. As a result, Russia is the federation with the largest number of constituent entities in the world (in second place is the United States, 51 states with a population 2.3 times larger than Russia’s). At the same time, during political confrontations at the federal level, both sides were, as a rule, interested in the loyalty of regional authorities - this hindered attempts to build a more pragmatic discussion on the problems of Russian federalism.

The cornerstone of Russian federalism in the 1990s was the direct election of regional heads, who were then co-opted into the upper house of parliament. This strengthened the lobbying resource of the regions, but led to a weakening of citizens’ control over both regional and federal authorities and turned the upper house into a chamber of “barons.” This model did not so much expand the rights of the regions as build a lobbying model in relations between the regions and the center and a paternalistic one in the political structure of the regions themselves. The conceptual framework of the new federalism is less developed in the projects of “alternative” democratic Russia than the issues of reform of the federal government. At the same time, based on the results of expert discussions, it is possible to formulate a key and meaningfully new understanding of the “new federalism” compared to the 1990s: today the process of decentralization of the “vertical of power” should be understood not so much as the process of “federalization” itself, that is, the division of power between two levels - federal and regional, but rather as a splitting of power between its three levels - federal, regional and municipal. This design, in particular, will prevent the threat of “feudalization” of the country according to the model of the 1990s and should become the basis of a new model of “vertical democracy.” It can be noted that, despite the consistent emasculation of federalism in the 2000s and 2010s, regional identities as a political phenomenon have gradually emerged, and today there is a real demand for the development of both federalism and local self-government.

The necessary elements of the three-level model should be (1) defining the subjects of exclusive jurisdiction of each of the levels, (2) ensuring their autonomy in the exercise of these powers, (3) assigning to them sources of filling the budgets for the execution of these powers (share of tax revenues) and finally (4) expanding the rights of regions and municipalities to exercise fiscal maneuver, that is, the introduction of a system of fiscal federalism. The triad - executive powers, fiscal powers and budget sources - should be considered as the basis of the “new federalism”. Perhaps the issue of distribution of the tax base to ensure the actual autonomy of the three levels of government could in some form be reflected in the Constitution. A detailed elaboration of such a model will require careful expert discussion.

An important element in the development of new federalism at the level of regions and municipalities, it seems, should be the introduction of forms of direct democracy: conducting “surveys of citizens” on issues within their exclusive competence, the results of which will have direct legal consequences. In order to make decisions on certain issues, such a system should become mandatory in the future.

Despite the gigantic differences between the subjects in terms of numbers and economic potential, experience shows that the strategy of “consolidation” of them encounters colossal resistance on the ground. In the reform process, raising this issue is tantamount to opening a second front in the war. In such a situation, a more rational solution appears in which the law may provide for the creation by the subjects of the federation of a unified government and a unified budget (a procedurally functionally united territory on the basis of a concluded fixed-term agreement without a formal merger), as well as measures to stimulate such integration. Large and self-sufficient entities may claim a greater volume of powers, and conversely, a large volume of transfers from the federal budget may require control mechanisms by the federal center, up to the agreement of the prime minister and the minister of finance with the federal government.

Without taking into account the three super-rich autonomous okrugs (Nenets, Yamalo-Nenets and Khanty-Mansiysk), the difference in the size of the average per capita GRP of the subjects of the upper and lower decile is 7.7 times. The economic inequality of the regions will require working out mechanisms for leveling (pulling up to the median level) budgetary provision. The mechanism and sources of transfers must be specified in the law, and their volume must be determined per capita and take into account the needs of both the regional and municipal levels (that is, the transfer is initially distributed between the regional government and municipalities).

The problem of urban agglomerations in the structure of municipal and regional levels of government deserves special attention. Russian regions, as a rule, are organized around the capital of the federal subject, in which the main economic potential and a significant part of the population are concentrated. On average in Russia, about 40% of their population lives in the capitals of the constituent entities of the federation, while the trend of regions “pulling together” towards the capital agglomeration continues. This determines the special status of regional capitals and gives rise to a systematic conflict between the authorities of the subject of the federation and its capital.

In general, 92 cities in Russia have a population of more than 200 thousand people, about 48 million citizens live in them - 33% of the country's population (excluding Moscow and St. Petersburg - individual subjects). In essence, urban agglomerations, in which the main modernization potential is concentrated and which in terms of population and economic weight exceed many subjects of the federation, actually represent a separate level of government. These circumstances should in any case be taken into account when determining the powers and internal structure of urban agglomerations, most of which, apparently, should have a three-level management structure (city - district - territorial level). It is in urban agglomerations that the main potential of the three-tier model of federalism seems to be concentrated.

Decentralization of the power resource: distributed control and accountability of the law enforcement system

One of the key problems of today's Russia and an expression of the degradation of its political system, as already mentioned, is the capture of the law enforcement system and its use in the interests of a narrow coalition of beneficiaries of the regime and their clienteles. This, in particular, is facilitated by the principle of the “vertical of power” extended to the law enforcement system, the lack of external public control of the state monopoly on violence, the deliberate uncertainty of legislative norms and the subordination of the judicial system to the executive monopoly. Distributed control of the system of state violence is a critical element in decentralizing power and returning to normality. Several mechanisms and institutional solutions should contribute to this.

First, the decentralization of the law enforcement system, which should be “split” between three levels of government responsible for organizing activities and control, respectively: (1) the municipal police (municipal district police), (2) the regional investigation and law enforcement service (at the regional level) and (3) the federal investigative bodies, the national guard and the bureau for the investigation of crimes against the state. The issue of distribution of powers and responsibilities at each level should be the subject of expert development based on international experience.

While the powers to appoint and remove heads of regional and municipal divisions should be the prerogative of representative bodies at the appropriate level, it is also necessary to ensure a strong system of external control of their activities (at the federal and regional levels, respectively). And the protection of the constitutional rights and freedoms of citizens should become one of the main activities of the federal prosecutor’s office, thus ensuring the unity of the legal field.

The second necessary element of a distributed power vertical should be the creation of a powerful system of public control over the activities of law enforcement agencies. Commissions for public control of the activities of law enforcement agencies and the penitentiary system should be created at all three levels of government under the relevant representative bodies. At the same time, the commissions should not be the same body that represents candidates for the positions of heads of law enforcement agencies; on the contrary, they should have a special status and include both representatives of various party factions and representatives of public organizations with the status of members of the commissions. At the same time, the commission's submissions and reports must be subject to consideration at plenary sessions of the relevant government body and to publication. Commissions must also have the power to commission independent investigations and appropriate resources. Perhaps it would be rational to introduce the position of an ombudsman for torture and unlawful violence by law enforcement officers, including in relation to those in custody and imprisonment (suspects and convicts).

Finally, it is necessary - following the example of many countries - to create a special body for corruption investigations and inspections, in particular, with the mandate of investigations related to the activities of security agencies and law enforcement agencies (prosecutor's office, court). In fact, sufficient international experience has been accumulated in this area, which should become the starting point for developing specific solutions.

Fight for competition

Of course, this is not a complete list of issues on the agenda of advanced democratization that will face Russian society after emerging from the state of abnormality. The movement of the discussion on them will be determined, however, not only and not so much by the polemics of experts, but primarily by the pressure of a competitive political environment, which is the foundation of the democratic order and the protection of which always remains the main concern of a democratic society.

The institutional forms of such protection deserve separate discussion and will constantly develop as new threats arise (note that conceptual issues of choosing in favor of one or another electoral system, developments in the field of changing election legislation, and issues of post-authoritarian transit in the field of political competition are discussed in detail in the works of Arkady Lyubarev and a number of other authors).

One of the main and most systemic threats to political competition, as already mentioned, will be the excessive concentration of capital and property in the Russian economy. Advanced democratization and fair rules of market competition are deeply related issues. And in this field, of course, a long struggle will unfold - both in the sphere of economic and business regulation, and in the field of electoral and party legislation. Apparently, its initial steps will require the adoption of special legislation on lobbying and forms of business participation in political activities. However, it should be taken into account that the choice in favor of more stringent regulation may not achieve its goals as a result. As is known, the severity of laws is compensated by the non-binding nature of their implementation. Therefore, a model with a relatively liberal approach, but with a strict system of punishment for violating rules and restrictions, may be more effective.

Widespread digitalization and network communications are radically changing the information and media environment, and here, apparently, a largely new system of rules and laws will be required, covering the problems of access to the global network and its limited regulation. Finally, the problem of the reliability of voting results after reaching a certain level of political competition can most likely be solved quite reliably at the level of blockchain and digital technologies.

However, as historical experience and contemporary events show, no norms and institutions are an absolute guarantee against the erosion of democratic principles, which must remain the subject of attention and protection of a broad (super-party) public coalition. In a certain sense, competition ends where the struggle for its rules ends.