#13 - JRL 8399 - JRL Home
From: Ira Straus (IRASTRAUS@aol.com)
Date: Wed, 6 Oct 2004
Subject: Re: 8397-Hahn

I have some differences with what Gordon Hahn writes, but some points of agreement too. Election of governors was one of the many emerging elements of democracy in the 1990s, even if one of the smaller such elements, and made for a kind of simulated federalism. Today, abolishing the elections would be bad for the democracy, and would end the 1990s form of simulated federalism.

The latter loss -- the simulated federalism -- is perhaps not so terrible, not after seeing how dangerously it worked out, with the governors exploiting their power and quasi-legitimacy to deconstruct much of the national authority and nationwide market after the 1998 currency crisis. The main deficit was always in the central government's authority not the provinces'. Perhaps, instead of the 1990s version of simulated federalism, Russia will next have something closer to the Soviet brand of simulated federalism. More likely it will have some new version of simulated federalism. The question is whether it will have a better chance of later giving way to genuine federalism than did the 1990s version. The loss of democracy counts against that chance; the reinforcement of central authority counts for it.

Another matter brought up by Dr. Hahn: the Federation Council will be further castrated. However, it was never very strong, and it was already "castrated" (in the sense of removing its potential for threat to central authority) by the initial Putin reforms. Anyway, Putin's power never flowed from the Federation Council, it never elected him -- he was initially confirmed as Prime Minister (PM) by the Duma, then inherited power from Yeltsin, and subsequently was elected twice by nationwide direct popular vote in which his victory was solid, unlike the Yeltsin era elections where fraud and manipulation were always suspected of making the difference -- so I do not see how further castrating the Federation Council could be said to create a "circular flow of power". It could do such a thing only if other, very different reforms led to a parliamentary system in which Putin not only became the PM again but was elected by the Federation Council. This seems highly unlikely. In parliamentary systems the PM is usually elected by the lower house (Duma), which is almost invariably the stronger house. And in fact the Duma has always been stronger than the Federation Council, despite Yeltsin's uses of the Council to help him survive a hostile Duma. What I think is valid in Dr. Hahn's comment is that the direct and indirect role of the President in appointing the Federation Council members is a mixing of executive with legislative selection processes that undermines the separation of powers and the integrity of the legislative body. It would be a much worse problem if the Federation Council had a lot of power.

Finally, it seems to me a mistake to say that federalism divides sovereignty, much less that it divides it anywhere near evenly, or that Putin is abolishing federalism because abolishing the division of sovereignty. Certainly Putin has been fighting against the vertical division of sovereignty, but it's no harm to federalism that he is doing so: Hamilton and Madison did likewise, and very effectively.

Classical confederation left the core sovereignty to the member states; modern federation reserves the core powers of sovereignty exclusively to the central government. Neither one divides sovereignty significantly, if at all. There are, to be sure, those who believe that federalism divides sovereignty, but the evidence is against them, at least in stable, non-transitional systems of federalism. The Articles of Confederation did indeed divide sovereignty, going somewhat beyond ordinary classical confederation; but that is what made them an unstable hybrid, and the Constitution abolished the division. The achievement of Madison and the novel structure of modern federation worked out at the Constitutional Convention was to reconcile federalism with the clear-cut, undivided sovereignty of the central government. The US Constitution divided functions not sovereignty with the local (state) governments. It was perhaps good rhetoric when people at the time said that an autonomous function of member States gave them a kind of "sovereignty" in the sphere of that function; and this rhetoric was perhaps useful for reconciling the States as they went ahead with signing away forever the core of sovereignty and ratifying the Constitution; but in the end that rhetoric had some tragic consequences. Those who retained the belief in a genuine division of sovereignty resorted to the idea of rights of nullification and secession, which were the only way to make the division of sovereignty real again (with the help of the juridical argument of Calhoun that, since the states had had real sovereignty under the Articles of Confederation and since each one ratified the Constitution as separate corporate societies making a contract, they must have somehow retained those underlying sovereign rights and couldn't have signed them away and dissolved themselves into a common corporate society). In the end, it contributed significantly to the secessions of 1860 and the Civil War. We paid a terrible price for it. Would we really wish it on another country?

It is a separate matter when Dr. Hahn argues that not enough provision is made in the Russian Constitution (the Yeltsin constitution of 1993) for legislative autonomy of the provinces in their own spheres of functional competence. His point is well-argued. In this matter -- which is a matter of the legal relation between the output of different legislatures -- the Constitutional provision that he cites does indeed detract from federalism. To be sure, federalist theory and practice have long since accommodated the "cooperative federalism" of the post-New Deal U.S., where functional powers are mixed and the Federal legislature finds ways of far exceeding its enumerated powers, alongside the "coordinate federalism" or strictly independent functional powers of Madisonian theory; and the U.S. Constitution gives the Congress powers of pre-emption of State competences in the rather large range of competences that are prohibited to neither; but still there are areas of exclusive State legal competence, where the State legislature has the final word in writing the law. I too would prefer that the Russian Constitution would have read differently on this matter, more like those of other federations, which have built on the U.S. model of coordinate powers while updating it with greater recognition of the necessity of a wide range of concurrent and cooperative powers at the same time. How this plays out in practice is a matter on which I am prone to be more humble than I might have been in, say, 1996-7 when the system of simulated federalism and semi-democracy on both levels seemed to be working even if creakingly. The starting point, we have to remind ourselves, was a Soviet Union that was both extremely centralized and extremely decentralized compared to a modern state; it tried to organize the entirety of society; its central government had de facto plenary powers over everything; and getting from that to a streamlined government which is efficiently authoritative (modern sovereignty) and limited (in functions) is probably not something that can be done and gotten right in one fell swoop, at least not without leaving lots of fudge space for a substantial transitional period during which devolution of powers necessarily has a trial and error aspect. Probably the fudge space is not being used wisely enough, nor was used wisely in the Yeltsin years when Western advice was more welcome. In principle it would be better for the Constitution to be amended to cut out much of this fudge space, give the provincial legislatures clean-cut definitive jurisdiction in broad functional areas, and hope for things to sort themselves out anyway. I wish I knew enough to be able to pass judgment on whether it would be better in practice.

Incidentally, the original system of selection of U.S. Senators (by State legislatures not the people in the decades after 1787), cited by Dr. Hahn as a sort of confirmation of the checks and balance essence of federalism, was at the time a step toward centralizing authority and reducing the capacity of States to balance the Feds; it was in this respect similar to Putin's step of turning the Federation Council into a place for provincial representatives not provincial governors to gather. Two Senators were elected per State after 1787, they were allowed to divide their votes (unlike under the Articles of Confederation where each State's delegation voted its one vote qua State), they could not be instructed by their State government as to how to vote (as had been done under the Articles) but were freed to vote their conscience and to develop a Federal consciousness, and - finally! - they were balanced by a President representing the whole country and by a House elected by the people virtually without reference to the States, with both of which they had to learn to reach compromises in order to pass legislation. This eliminated the role of the Senate as a States-run check on the normal functioning of Federal power (except in the tragic case of slavery, which was anything but normal; and even there, it was not honestly a matter of States Rights but of the Southern regional social structure exploiting the residual role of the States in the Senate, coupled with the accidental fact of having half the States on its side, in order to get a de facto veto and to make a pseudo-Constitutional argument for a right of veto or nullification). From a standpoint of the Antifederalists, all such provisions in the Constitution were a castration of the power the States had formerly held to check and balance the Federal Government and throw a monkey wrench into its workings. And they were indeed a castration of that power. Thank God they were.

One stylistic matter. In my original note, I opposed Putin's plan; from what was written in the response, some readers might inadvertently have been given the impression I supported it. I didn't. I did criticize the argument from checks and balances which is the reason most Western commentators are giving for opposing it, when the argument from loss of the elements of democracy and of local accountability would be much more persuasive. The checks-and-balance argument is actually one that serves as the best advertisement for Putin's plan, in the minds of Russians who don't relish the thought of national disintegration or civil war.

For those of us who would like to oppose what is wrong in this plan, while retaining some decent humility about telling another country how to do things, we should try to oppose it on valid grounds, not on siren song grounds, and look for constructive alternative paths to strengthening central authority. Also it would be wise to avoid catastrophism and leave some space for compromises, such as retaining elections in ethnic republics, or for Veshnyakov's statement that the appointment system should be only a temporary, 10-year measure. With those modifications, the plan, while still on balance probably bad, would be a lot less bad, and could have some potential for good. If Dr. Hahn could propose other reforms that would work better for rebuilding Federal authority all the while doing it federalistically -- and he if anyone has the expertise -- it would be a great contribution.