A Russian Constitutional Revolution

This Saturday, the Russian opposition goes back to work: More than 20,000 people have signed up on Facebook to brave subzero temperatures for "A Peaceful March for Honest Elections." This new protest comes at a critical time for Russia's nascent political opposition: There there have been no headline grabbing protests in January and the opposition has been fighting amongst themselves. Meanwhile, the Putin regime has been busy. Vladimir Putin has personally penned three long articles promising gradual, stable political reform while hinting that the opposition's goals will lead to the lawlessness and chaos of the 1990s.

How should the opposition respond on Saturday? Even with a massive turnout, the movement's current focus on "clean" parliamentary elections and the defeat of Mr. Putin in the March presidential elections is insufficient. In fact, even if March's presidential election is completely free and fair, Mr. Putin will win a new six-year presidential term—as much because there is no serious opposition candidate as to Mr. Putin's personal popularity. Furthermore, the disputed parliamentary elections concern the lower house of the Russian Parliament (the Duma). The upper house of the Russian Parliament (the Federation Council) is not directly elected and remains under the control of the presidential administration. Thus, any opposition gains in clean elections can be blocked by the upper house.
 
To keep pressure on the Putin regime and achieve true change, the opposition must adopt a more fundamental objective: Long-lasting reform of Russia's authoritarian constitutional system. But why should the opposition care about the Constitution?
 
Russia's Authoritarian Constitutional System
 
To understand the importance of the Russian Constitution in the current political struggle, it is necessary to understand the creation of Russia's constitutional system almost twenty years ago. A critical constitutional debate was raging during the vicious struggle for power between President Boris Yeltsin and the Russian Parliament in 1993. On one side were the Constitutional Court and the Russian Parliament's Constitutional Commission, who argued that Russia needed a constitutional system of checks and balances modeled on western constitutionalism. This connection with the Western constitutionalism was so strong that the head of the Parliamentary Constitutional Commission—Oleg Rumiantsev—was dubbed the Russian James Madison.
 
On the other side of the debate was Boris Yeltsin's presidential administration. At the Constitutional Convention convened by President Yeltsin in summer 1993, leading Yeltsin officials—including Mr. Putin's boss in St. Petersburg from the early 1990s, Anatoly Sobchak—strenuously argued that the new Russian constitutional system should not be draw from Western examples. At the center of this uniquely Russian vision was the presidency. The Russian president, they argued, should not face any structural checks: Instead, the Russian president should stand above the system of legislative, executive, and judicial power like a monarch. One Yeltsin advisor analogized this constitutional structure to a tree: The president was the trunk and the legislative, executive, and judicial powers were the branches.

As the only official elected by the whole people, the president was to exercise power by controlling all three "branches" of government. The president was granted a near monopoly over the executive branch of government, able to disband the lower house of Parliament if the body did not confirm his choice for prime minister. Furthermore, the president was given significant potential power over the upper house of the Russian Parliament. Yeltsin's Draft specified that half of this body was to be "formed"—not elected—from members of the executive branch in Russia's eighty-three administrative regions. This gave the president the constitutional power to indirectly control the selection of half of the upper house through presidential control of regional executives (governors). Finally, the president had the power to appoint all judges with the approval of this docile upper house of Parliament.

After decisively settling this debate by shelling the Russian Parliament and disbanding the Constitutional Court, the Yeltsin team ratified this authoritarian constitutional system in a December 1993 referendum. During the 1990s, however, it was easy to miss this authoritarian constitutional structure: President Yeltsin was unable to realize the vast constitutional powers of the presidency for a number of reasons, including assertive regional executives, his frailties as a leader, and low oil prices.

Vladimir Putin did not have the same problems. Upon taking power on January 1, 2000, Mr. Putin—a lawyer by training—actively moved to realize the constitutional powers of the Russian president. In his first month in power alone, Mr. Putin gave three speeches on the importance of building a "dictatorship of the law" that realized the full potential of Russia's constitutional structure. Buoyed by rising oil prices and more disciplined leadership, Putin methodically realized the near limitless constitutional powers of the president's top down vertical of power. Most importantly, he exercised his constitutional powers to appoint regional executives (governors), which ensured that his regional representatives would appoint compliant executive representatives to the upper house of Parliament.

A Constitutional Revolution

As three Russian scholars point out in a recent article, the extensive electoral fraud in December's parliamentary elections are the natural result of this system. For an opposition movement that has repeatedly stressed that it wants peaceful change, constitutional revolution therefore should be at the very center of its goals.

At the heart of this constitutional revolution should be the fundamental reshaping of the relationship between the president and both houses of Parliament. First, the opposition should strengthen the hand of the lower house of the Parliament in forming the executive branch and confirming the prime minister; the lower house should be able to block the president's candidate without fear of being disbanded. Second, the opposition should push for specific wording in the Constitution ensuring that the upper house of Parliament is a directly elected body and delete any wording requiring half of the members of this body to be representatives of the regional executives. This newly strengthened upper house of Parliament should play a much more powerful role in filtering presidential choices for judicial appointments.

The Russian opposition seem to be making encouraging moves in this direction. Lilia Shevtsova recently pointed out that key members of the opposition have recently moved from slogans of "Down with Putin" to "Down with the Whole Political System!" Although likely part of a long game, calls for constitutional reform might have unexpected allies with the Putin regime. In recent years, President Dmitry Medvedev—who is likely to be President Putin's Prime Minister—has discussed strengthening the role of the Parliament in Russia's constitutional system.

A constitutional revolution in Russia also provides a constructive policy for an international community that hopes to promote democratic pluralism in Russia while avoiding lawless instability in a nuclear superpower. It therefore effectively answers the Putin regime's arguments that sudden political change is too dangerous or destabilizing. In fact, it follows the most successful model of democratic transition in the last half century: the negotiated constitutional revolutions pursued by Spain, Portugal, Poland, Taiwan, and South Korea.
 
Russia has a long tradition of experimenting with lawless revolution. Maybe it’s time for a less risky experiment: constitutional revolution.