Constitutional Political Economy, 10, 27–52 (1999)
c 1999 Kluwer Academic Publishers, Boston. Manufactured in The Netherlands. °
Institutional Design, Uncertainty, and Path Dependency during Transitions: Cases from Russia MICHAEL MCFAUL*
[email protected].
Department of Political Science, Stanford University, Stanford, CA 94305, USA
Abstract. During transitional moments, new leaders must design political institutions. Some of these designs succeed in establishing lasting rules of the game. Others do not. This paper analyzes those factors which either facilitate or undermine institutional persistence during transitions, focusing particularly on the role that uncertainty and path dependency play in these processes. The empirical section of the paper examines three cases of institutional design in the Soviet/Russian transition—the creation of the Russian presidency, the emergence of electoral law for Russia’s lower house of parliament, the State Duma, and the evolution of institutional design regarding the formation of Russia’s upper house, the Federal Council. This comparison shows why the first two cases of institutional design created lasting institutions—even though these new rules did not reflect precisely the interests of their creators—while the third case of institutional design did not. JEL classification: H1.
1.
Introduction
Throughout the post-communist world, elites have been deluged with the chores of institutional design. Almost every institution governing the market and polity had to be designed after the fall of communism. During such periods of rapid transition, we should expect that preferences of the most powerful actors should be most consequential in the design of new institutions. In these contexts, old institutions should be least constraining as the very rules of the game are being challenged, negotiated, and rewritten. Different balances of power should yield difference kinds of institutional arrangements. In situations of deadlock, stalemate, or a relatively equal distribution of power between major actors, we should expect new institutions to reflect compromise and reconciliation between all sides. In situations where one group has a preponderance of power over others, we should expect the new institutional design to reflect this group’s preferences. Evidence from the Russian transition from communist rule, however, suggests a more complicated relationship between power, preferences, and institutional design. In an analysis of three different arenas of institutional design—executive-legislative relations, the electoral law for the lower house of parliament, and procedures for constituting the upper house—this article argues that the institutions that emerged in each of these three realms did not reflect neatly the preferences of the powerful. And once in place, two of the institutional designs persisted even though they did not reflect the interests of the most powerful at the time of design, while one changed to more accurately reflect the preferences of the powerful. * The author would like to thank Stephen Hanson, Stephen Krasner, Terry Moe, Stephen Solnick, Svetlana Tsalik, and Barry Weingast for comments and discussions on this paper.
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Two factors intervene in the translation of preferences into new institutions. First, information is incomplete during transitions. Actors cannot calculate accurately the effects of their choices about institutional design. They also cannot make precise calculations about the power or preferences of their opponents. Poor information makes it possible for groups to lobby for institutions that turn out to work against their interests. Second, path dependency shapes outcomes, even during times of radical change. Decisions made at time t influence decisions made at time t + 1. Even when actors decide that they made the wrong decision at time, t, they are constrained in reversing this decision at time t + 1. Hence, if powerful actors adopt institutions at the time of transition which, due to the uncertainty of these moments, end up yielding poor results for their makers, the institutional designers may find it difficult to amend or retract these institutions once they are in place. This set of simple propositions suggests a framework for thinking about institutional design during transitions. First, the preferences of the powerful are most important in determining outcomes regarding institutional design. Second, however, rational actors are not fully capable of making choices that serve their interests during times of radical change. Uncertainty clouds their calculations. Third, path dependency matters. Once a design has been selected, the new institution can act to reshape preferences and power in ways that will help sustain the institutional arrangement even if this set of rules no longer serves the interests of those who designed it. To develop these arguments, the article proceeds as follows. Section 2 outlines in brief the theoretical debates about institutions in social science analysis. At the end of this section, two narrowing conditions are introduced to the general discussion on institutions— the accentuated information problems during transitional periods and the effects of path dependency during situations of institutional design. Section 3 applies this framework to the story of the creation of the Russian presidency. Section 4 looks at the evolution of electoral law for Russia’s lower house of parliament, the State Duma. Section 5 explains the development of institutional design for filling Russia’s upper house, the Federal Council. This comparison shows why the first two cases of institutional design did not reflect the interests of the powerful, but once in place, the institutions survived attempts to reconfigure. In the third case, the original design also did not reflect accurately the preferences of the powerful, but this institutional innovation did change over time. Section 6, the conclusion, explains why the third case had a different outcome than the first two cases. This section also outlines some more general conclusions about the relationship between power, uncertainty, and path dependency during periods of institutional design in transition. 2.
Institutional Analyses
In political science today, we can identify two theoretical poles concerning the relationship between institutions and actors. One approach, sociological institutionalism, views human action as primarily shaped by the institutional foundations of a society. Actors have little influence on the institutions themselves. In contrast, rational choice institutionalism sees institutions as the product of individuals pursuing their interests. Both approaches fail, however, in capturing the extent to which actors shape, and subsequently, are shaped by institutions. This section aims to establish a simple geography of different institutional
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arguments in order to situate the claims about institutional design, uncertainty, and path dependency made later on. The first “neo”-institutional thrust came from sociology. Two important works by March and Olsen and Powell and Dimaggio buoyed this new or resuscitated line of thinking about politics (March and Olsen 1989; Powell and DiMaggio 1991). This approach to institutional analysis downplays the importance of actors and highlights the importance of institutions for explaining political outcomes. As March and Olsen argue, “institutional analysis posits a more independent role for political institutions” (March and Olsen 1989:17). Some sociological approaches to institutions go even further by assigning institutions rather than actors the primary causal role in explaining outcomes. As Thomas, Meyer, Ramirez and Boli have written, “We see the existence and characteristics of actors as socially constructed and highly problematic, and action as the enactment of broad institutional scripts rather than a matter of internally generated and autonomous choice, motivation, and purpose” (Meyer, Boli, Thomas 1987:13). Sociological institutionalists, however, have poor accounts of institutional design.1 Who or what is the agent of change is not obvious. Likewise, who does the designing? In the world of sociological institutionalism, there are no actors, so there is no room for purposive acts like intentional design. Rational choice theorists concerned with institutions construct their analyses by asserting that actors create institutions and they create them for a purpose—to serve their interests. For most rational choice theorists, institutions reflect the preferences of rational actors, the exact opposite of sociological approaches in which institutions create the actors’ preferences. As Peter Ordeshook states, “political institutions are the products of the self-interest of those who establish them” (Ordeshook 1990:13). When institutions undergo modification, rational choice neo-institutionalists assume that “those responsible for changing an institution can anticipate any effect of an institutional change” (Alt and Shepsle 1990:2). This approach makes a major assumption about the ability of individuals to calculate their interests during times of change. As Alt and Shepsle (1990:2) boldly state, One would naturally expect that those seeking to change an institution have some result in mind when they try to do so and that result (among others) would show up among the consequences of institutional change. In principle, any consequence can be anticipated, at least to some extent. For these analyses then, institutions do not shape outcomes independent of the interests of the actors that designed the institutions in the first place. These assumptions about institutional design work best when addressing problems of coordination. Coordination problems are a central concern of many positivist approaches to institutional analyses and for good reason as many kinds of institutions emerge spontaneously to provide collective benefits for society (Klein 1997). These kinds of institutions provide optimal solutions to problems of coordination that make everyone better off. However, some institutions are created or designed through conflict between individuals or imposition by one individual or one set of individuals over another.2 These kind of institutions do not always produce optimal outcomes, but often reflect the preferences of the more powerful or more successful actors in the game of institutional design (Tsebelis 1990:13, and Knight 1992:19). In the literature on institutions, this distinction is often
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flagged as the difference between efficient and distributional institutions (Tsebelis 1990; Knight 1992; Krasner 1991).3 Regarding instances of institutional design of a political system, which is the focus of this article, distributional questions are often most salient. When actors design new political institutions, they rarely act for the good of society and usually work for the good of themselves (Rakove 1997). Constitutional design is not a game of coordination, but a struggle for distributional gains (Hardin 1989). Consequently, the balance of power must be brought in as a focus of analysis. The assumptions behind rational choice arguments offer a useful starting point for understanding the origins of institutions, be they efficient or distributional. However, in the empirical world, the conditions specified in these models rarely obtain. First, actors do not have perfect knowledge about the effects of their institutional choices. Second, actors do not make choices about institutions in a vacuum but are constrained by the existing institutional context. 2.1.
Uncertainty
The preferences of the powerful may not translate precisely into the design of a new institution due to the intervening influence of uncertainty. Under conditions of perfect information, we could expect institutions to reflect preferences in a neat and precise fashion. Such conditions, however, rarely obtain. In most strategic situations, an actor’s ability to anticipate consequences is imperfect. This is especially true during regime transitions and the process of new institutional design.4 First, if actors are creating new institutions for the first time, they have limited information about their effects. Their own historical experience, by definition, does not illuminate much regarding the effects of these new institutions. Information about the role of these institutions in other countries also is of limited use because an institution that is transplanted from one political, economic, and cultural environment to another may have a very different impact in its new host. Second, during times of regime transition, calculations about the behavior of others become more difficult. Institutions, by definition, provide some information to actors about the expected behavior of other actors. Once institutions are disrupted or relaxed, however, this information function diminishes and strategic interaction becomes more costly. Therefore, rational calculations about ends and means become more difficult to make. Under conditions of incomplete information, decisions today can produce unintended consequences tomorrow. In rare and/or new situations in which the causal relationships between many variables are complex and difficult to understand, actors may make suboptimal decisions or even select strategies that do not serve their interests (Riker 1990:173; March and Olsen 1989:53–57). Such moments of uncertainty are especially likely when institutions themselves no longer provide clear information but instead become yet another variable.5 As George Tsebelis (1990:33) has stated, “as the rules of interaction become more fluid and imprecise, rational-choice explanations will become less applicable.” Third, actors in conditions of radical and rapid change must make decisions about institutional design on a whole set of issues at the same time (Elster, Offe, and Preuss 1998).
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This simultaneity of institutional change compels actors to prioritize. In focusing on one set of design questions, actors may neglect other arenas with unintended consequences for the future. Fourth, transitional moments do not allow much time or intellectual space for institutional innovation. Creative solutions to difficult problems require deliberation.6 Designers of institutions during revolutionary periods of change do not have the temporal luxury of searching for ideal solutions. Instead, they must rely on scripts well known to them or highly recommended to them. In these situations, they also will draw upon what they know best—past institutional arrangements (McFaul 1998). The most recent preceding institutional order will have the greatest effect on new institutional design. William Riker (1996:123) has outlined the reasons why, This is for two reasons, one psychological, one social: psychologically, it is well established that humans can call into active cognitive consciousness only a limited number of considerations, such as earlier events and institutions. For each of us, presumably, the more remote an institution, temporally or spatially, the less likely it is that we choose to consider it in place of a recent and nearby one that we have participated in or observed. Socially—and this is probably the more important reason—an earlier institution can be significant for a later one only if the great bulk of the participating framers comprehend its relevance. If only a few so comprehend, they really cannot communicate with the uninstructed others unless they instruct them. It is undoubtedly easier, however, to immediately discuss some mutually well-understood institution than to teach about unknown institutions so that they can then be discussed. A possible corollary to this observation is that the institutions of greatest relevance for new institutional design are those that are structurally and functionally most like the new institution in question. Finally, reaction to an immediate political circumstance is usually the impetus for most new institutional designs. As Cain and Jones (1989:11) remind us, “many, if not most, changes in institutional design can hardly be characterized as ‘designed’; they usually occur as the reactions of shortsighted people to what they perceive as more-or-less short-range needs.”
2.2.
Path Dependency
Arguments about path dependency do not necessarily confirm or refute arguments from either the sociological or rational-choice approaches to institutions sketched above. Rather, arguments about path dependency often try to cut a middle position between those who argue that only institutions matter (and actors do not) and those who argue that actors matter (and institutions do not). Path dependency states that individuals, their preferences, and their power matter, but they do not interact in a vacuum. To understand how “structure” influences the decisionmaking process, defines the players, and shapes the strategic interaction between individuals and their preferences, institutions also must be brought into the focus of analysis
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not only as an endogenous reflection of individual preferences, but as a potential exogenous influence on outcomes, including outcomes of institutional change. Institutions, then, can have a causal effect on outcomes of institutional change (Riker 1996). Institutions are not always (though most certainly can be) endogenous to the preferences of strategic actors, but also can have an exogenous influence on the interaction and thereby the subsequent outcome (Krasner 1983:358). Specific to the concern of this article, actors do not interact, compete or cooperate in a vacuum when seeking to produce or prevent institutional change. Institutions effect institutional change (Stark and Bruszt 1998; Stoner-Weiss 1997:62). Institutions in place at the time of institutional design influence the design process. Even during periods of revolutionary change when new rulers make a conscious attempt to break with the past and should be most unconstrained by institutional arrangements, the path of transformation is still dependent on past decisions, institutions, and organizations of socio-economic relations (North 1989:6). And once in place, newly designed institutions influence future outcomes as actors begin to make “investments” in the new institutional order which in turn provides increasing returns for all those playing by the new rules. Over time, this process raises the costs of changing the rules, even if a different set of institutions might be more beneficial to all concerned (North 1990; Arthur 1994; Pierson 1997; David 1985). Over time, the benefits of playing by the existing set of rules increase at the same time that the costs of transgressing the existing rules and replacing them with a new set of rules also increases. To posit that institutions are sticky—that they can sometimes have an intervening effect on outcomes, including institutional change itself—challenges the assumptions behind the positive approach to institutionalism. If institutions influence outcomes in ways that do not reflect neatly the preferences of the powerful, then these institutions are exacting an autonomous influence on outcomes (Krasner 1983:35). Regarding the specific outcome of institutional design, the fact that new designs may simply not reflect the interests of the most powerful involved in the design process suggests that the previous institutional context may have played an intervening role in shaping the design process. Even when institutions are sticky and take on autonomous characteristics and intervening power, they rarely are the singular cause of outcomes (Steinmo, Thelen, and Longstreth 1992). On the contrary, it is the interaction between institutions and individual actors that produces outcomes. Too often, students of “sociological institutionalism” make the opposite grandiose claim about the complete explanatory power of institutions as independent variables. These accounts are misleading for two reasons. First, not all institutions should be treated as independent variables. Without question, some institutions are endogenous to preferences and therefore are better explained by positivist approaches. Especially during periods of stasis or evolutionary change, economic and political institutions can emerge spontaneously between mutually benefiting actors (Hayek 1967; Alchian 1950). Under the conditions that these theorists generally assume, institutions are endogenous to preferences and do not act as independent variables. Moreover, not all institutions of the past influence the logic of emergence of institutions in the present. In the case studies addressed in this article, students of Soviet studies often have hid behind the smoke-screen of historical uniqueness to posit that no outcome in postcommunist Russia can be understood without bringing in the legacy of Soviet communism.
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Others have gone even farther to argue that the institutional legacy of the pre-communist era must feature prominently into explanations of post-communist institutional emergence (McDaniel 1996). In positing the importance of path dependency for understanding institutional change, this article does not assume that all previous institutions influence the formation of all future institutions. Instead, the inductive task undertaken in examining the cases is to specify under what conditions path dependency matters, or even more specifically, when the adoption of a new institution creates a new balance of power and preferences in favor of the new institution’s continued existence. To summarize, the approach to institutional design adopted in this article begins with an assumption about the importance of actors. Actors, not structures, make decisions about institutional design. They make decisions that appear to serve their interests best. In contrast to institutions that emerge to solve coordination problems, the design of constitutional institutions—the subject of this article—often involve distributional effects. Consequently, in these kind of strategic situations, the balance of power between actors also plays a role in determining the design of a new institution. During the design process in regime transitions, the preferences of the powerful do not translate directly into the creation of a new institutions. Two factors influence the direct translation of preferences into institutions—uncertainty and path dependency. Taken together, this set of hypotheses offers a framework for analyzing institutional design during transitions. To explore the explanatory power of these hypotheses, we now turn to three cases of institutional design that occurred during Russia’s transition from communist rule: (1) the creation of the Russian presidency, (2) the design of the State Duma electoral law, and (3) the writing of the rules for constituting the Federal Council. Each section begins with a discussion of the creation of the respective institution and concludes with a review of how the institution either became locked-in, or was reconfigured. 3.
Creation of the Russian Presidency
Without question, the most consequential design decision in Russia’s tumultuous transition was the creation of the office of the president.7 The series of decisions behind the creation of the Russian presidency not only established the kind of political system in place in Russia today, but also helped to produce the polarized standoff between political forces in Russia in the fall of 1993, a stalemate which ultimately ended in bloodshed. Since 1993, the persistence of Russia’s presidential system is cited by many analysts as an obstacle to democratic consolidation (Rutland 1998). Several writers on the creation of the Russian presidency suggest that the preferences of the powerful determined this design outcome. For instance, Gerald Easter, in writing about Russia and the post-communist world more generally posits that “the structure of the old regime elites as they emerged from the breakdown phase best explains the preference for presidentialism exhibited in the NIS [newly independent states]” (Easter 1997:184). In Easter’s account, old regime elites prefer presidential systems while new political actors prefer parliamentary systems; whether one system is adopted or the other depends on who is more powerful at the time of transition—the old elites or the new actors. Barbara Geddes makes the same argument, “we would expect stronger presidencies and more majoritarian
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systems of legislative representation to be associated with Communist parties that were relatively strong at the time the institutions were chosen” (Geddes 1996:23). Timothy Frye offers a similar kind of explanation. While his argument also highlights the importance of uncertainty in the design process, Frye’s account of institutional design in Russia casts uncertainty in a different role than offered here. For Frye (1997:547), his “findings suggest little support for the notion that the uncertainty of the transition blinds actors to their interests. Despite high uncertainty, political actors managed to behave strategically in these cases.” If true, then the institution of the Russian presidency should have reflected the interests of those involved in the design process at the time. But it did not. The Russian presidency was not created because the old elite wanted this new institution. Though difficult to reconstruct, the preferences of the powerful within the Soviet polity at the time did not reflect a predisposition for the creation of a Russian presidency. Rather, the creation of the presidential office was allowed to occur due to miscalculation by the old elite. Their strategy for thwarting the creation process backfired, they underestimated how the creation of the office would alter the balance of power, and they misjudged the resilience of the institution once in place in part because they could not foresee a major exogenous shock—the failed coup attempt in August 1991—which radically and suddenly altered the balance of power in Russia. The idea for the creation of a Russian presidential office emerged within democratic circles soon after the first session of the Russian Congress of People’s Deputies in the spring of 1990. It was never an idea of the communist elite. At this first meeting of this newly-elected body, it became obvious to Democratic Russia leaders—the leading anticommunist, reformist coalition in Russia at the time—that they controlled a minority of seats in the new parliament (Sobyanin 1994). In its first consequential act in May 1990, the new Russian Congress of People’s Deputies did elect Boris Yeltsin as Chairman, but only by a paltry victory margin of four votes after several ballots. The vote reflected the precarious balance of power within the Congress. “Democrats” were a minority in this body. Boris Yeltsin pieced together his slight majority to become chairman only by emphasizing his support for Russian sovereignty, a stance that appealed to Russian democrats, who saw the declaration as a peaceful way to dissolve the Soviet empire, to Russian nationalists who embraced the idea for ethnic reasons, and to midlevel communists who saw sovereignty as a way for them to gain independence from their CPSU bosses in Moscow.8 Over time, as other issues became more salient, Yeltsin’s majority withered. By the opening session of the Third Congress in March 1991, a petition had circulated to remove him as chairman. This could be done by a simple majority vote. Threatened by such a vote, Yeltsin and his allies saw the creation of a Russian presidential office as a way to insulate Yeltsin from the increasingly conservative Congress. Polls indicated that Yeltsin was tremendously popular at the time—much more popular with the people than with the deputies. If he could secure a direct electoral mandate, he would be in a much stronger political position vis-a-vis his opponents in both the Russian Congress and the Soviet government. The push to create a Russian presidency was in response to a concrete political situation and was not the result of a carefully-plotted strategy or philosophy about the need for a separation of powers or checks and balances (Cain and
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Jones 1989). In fact, the referendum on the Russian presidency went forward before the actual powers of the president had been spelled out and incorporated into the constitution. If the balance of power within the Russian Congress was roughly equal between friends and foes of this institutional innovation, the majority of elites within the Soviet polity as a whole was firmly against the idea. Gorbachev and his Soviet government opposed the creation of a Russian presidential office through a direct election at this time (Shakhnazarov 1995). They feared that this office would strengthen Yeltsin’s hand in his dealings with the Union government. They also knew that the direct election of a Russian president would undermine the legitimacy of the Soviet president, Gorbachev, who had avoided a direct election and instead was appointed by the Soviet Congress, a body in which only two thirds of the seats were filled by direct elections. Although the majority within the ruling elite in the Soviet Union at the time, opponents to the Russian presidency faced several restraints on their behavior that came from the new rules of the electoral game, rules initiated by Gorbachev himself. First and foremost, having just been elected in a direct election, no Russian deputy wanted to openly oppose the idea of a popular election for a Russian president. Consistent with path dependency arguments, institutional design at time, t (March 1990), was influencing decisions about institutional design at time, t + 1 (March 1991). Second, opponents of Yeltsin knew how popular he was with the people at that time. They believed that elite resistance to the referendum on the presidency might trigger popular reaction in the streets. In other words, uncertainty about the balance of power influenced decisionmaking. Throughout the winter and spring of 1991, Democratic Russia had organized national demonstrations of huge proportions to express their rejection of Gorbachev’s policies (McFaul and Markov 1993: chap. 8). They could do so again for this issue. In this case, it was not the old communist elite who wanted the presidential offices, but rather the new democratic opposition. Instead of openly resisting the referendum idea, therefore, opponents of this institutional innovation pursued other strategies to thwart Yeltsin and his allies. First, opponents of the new presidential office believed they could make it a largely symbolic office. The powers of the presidency were not articulated before either the referendum vote in March 1991 or even the presidential vote in June 1991. Because the Russian Congress had monopoly power over amending the Russian constitution, Yeltsin opponents in the Congress reasoned that they could constrain the powers of the president through the amendment process (Rumyantsev 1995). Second, opponents of the presidential referendum planned the vote to coincide with a vote on the preservation of the Soviet Union. Gorbachev aides calculated that a sizable majority within Russia supported Union preservation. If Yeltsin and the democrats campaigned against Union preservation, their unpopular stand on this issue might undermine in turn their support on the presidential vote. As anticipated by Gorbachev’s aides, most leaders in Russia’s democratic movement came out against the Union.9 In contrast to Democratic Russia, however, Boris Yeltsin decided to adopt an ambiguous position on the Union vote. On the one hand, he made clear that he disapproved of Gorbachev’s motivation for holding the referendum ballot. In an interview just days before the vote, Yeltsin explained that “It is aimed at preserving the imperial and unitary essence of the system” (Morrison 1991:238). On the other hand, Yeltsin did
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not campaign actively against the Union referendum question. He did not appear at the Democratic Russia rally against the referendum vote, and he did not allow his name to be used on anti-Union propaganda published by Democratic Russia. At the time, Yeltsin and his campaign associates had very sound tactical reasons for remaining mute on the Union question. Yeltsin’s team calculated before the vote that most Russians would vote in support of the Union preservation. To run against the Union referendum would have endangered the prospects of the referendum question on the creation of the Russian presidency, a vote that was much more important to Yeltsin at the time.10 Members of Yeltsin’s campaign team believed that Gorbachev had pushed for the Union question to coincide with the vote on the presidency precisely to defeat the presidential initiative (Bokser 1998). When Yeltsin refused to speak out against Union preservation, the Gorbachev plan was foiled. The March referendum on both the preservation of the Union and the creation of the Russian presidency passed. In Russia, 71.3 percent voted yes, while only 26.4 percent voted no, a sizable majority. At the same time, 69.9 percent supported the creation of the post of RSFSR president; only 28.0 percent were against the idea. The much larger vote cast in support of the presidential office demonstrated that Yeltsin’s electoral support was wider than that of Russia’s “democrats,” for everyone knew at the time that a vote for the creation of a Russian presidency was a vote for “President” Yeltsin. Not surprisingly, three months later, Yeltsin won a decisive electoral victory to become Russia’s first president. Despite the large and diverse field, Yeltsin won a first-round victory, capturing 59.7 percent of the popular vote. The vote demonstrated dramatically that the balance of power between “communists” and “democrats” among the elite did not align with the balance of support for these two camps within the electorate. By allowing Yeltsin to change the rules of the game and make elections a critical component, the communists had weakened their own role in the Russian polity. 3.1.
Institutional Persistence
At the time of Yeltsin’s electoral victory, however, all did not seem lost for his opponents. Yeltsin had won election to an office with ill-defined powers. After the June 1991 presidential vote, the Russian Congress—a body in which support for Yeltsin was not as strong as in the electorate—had six months to clarify and codify the constitutional division of powers between the president and the parliament. Had events unfolded in an orderly fashion, this Congress might have been able to turn Yeltsin and his presidential office into a weak executive just as they had planned before the June 1991 election. In the interim, however, a dramatic series of unexpected events radically altered the balance of political power in Russia. In August 1991, a group of Soviet government leaders attempted a putsch, which Yeltsin and his allies thwarted. By the end of the year, Yeltsin and his allies had taken advantage of the August 1991 victory to dissolve the Soviet Union. In this interim period, as Russia began gearing up for independence and the introduction of market reforms scheduled for the beginning of 1992, President Yeltsin played the pivotal role. In this crisis period, Yeltsin and his presidential office—not the Russian Congress of People’s Deputies—assumed primary responsibility for all major institutional innovations
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and policy initiatives. The institution of the presidency began building up organizational capacity and power to deal with these crises, a shift in resources that included new staff, new bureaucracies, and greater executive control over the state budget. As Moe and Caldwell (1994:192) write regarding institutional choice more generally, every institutional form of democracy, whatever it might be, generates its own political dynamic—its own politics of structural choice—which in turn generates the basic structures that fill out the rest of government. Each institutional form is a full-blown system in the making. It comes with a built-in genetic code that programs the kinds of bureaucracies, leadership structures, personnel arrangements, and other properties that will ultimately make up its government. Once the form is adopted, the other properties follow. In the fall of 1991, the presidential genetic code began to reorganize politics in Russia. Initially, this blooming of the presidential branch of government met little resistance. As a demonstration of their support of Yeltsin’s leadership, the Russian Congress voted in November 1991 to give the president extraordinary powers of decree. Though de jure, the powers of the presidency had not been specified in the constitution, de facto, the presidency had assumed an increasingly central role in the national government. Immediately after the putsch attempt, this de jure institutional ambiguity did not have a direct impact on politics as most deputies in the Congress of People’s Deputies at that time supported Yeltsin. Ruslan Khasbulatov, Yeltsin’s successor as Chairman of the Congress, was considered a close Yeltsin ally. After price liberalization and the beginning of radical economic reform in January 1992, however, the Russian Supreme Soviet and Congress of People’s Deputies began a campaign to reassert its superiority over the president. The sources of polarization between the Congress and the president eventually grew beyond disputes over economic issues. The more salient issue became political power. Which political institution was supreme, the Congress or the Presidency (Yeltsin-Khasbulatov 1994)? With no formal or even informal institutions to structure relations between the president and the Congress, political polarization crystallized between these two state institutions. Even after Yeltsin’s referendum victory in April 1993 which reaffirmed the people’s support of the president and his reform program, the Congress continued to block executive initiatives, constrain ministerial power, and pass laws contradicting Yeltsin’s decrees. During the summer of 1993, in preparing for the tenth Congress of People’s Deputies, deputies drafted a series of constitutional amendments that would have liquidated Russia’s presidential office altogether (Rumyantsev 1994). To avoid this outcome, Yeltsin decided to preempt his foes by dissolving the Congress in September 1993. The Congress in turn declared Yeltsin’s decree illegal and recognized Vice President Aleksandr Rutskoi as the new interim president. In a replay of the 1991 drama, Russia suddenly housed two heads of states and two governments claiming sovereign authority over the other. This situation of dual sovereignty ended only after Yeltsin defeated the Congress through the use of military force. After dissolving the Congress in the fall of 1993, Yeltsin called for a referendum to be held in December 1993 to ratify his new constitution. Having defeated his enemies, Yeltsin did not need to negotiate or compromise over the new constitutional draft. The
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new basic law did not represent the sum of preferences in society regarding constitutional questions. Rather, Yeltsin and his immediate circle of advisors undertook this experiment in institutional design independent of other political actors and autonomous from societal forces. Not surprisingly, therefore, the new Russian constitution provided the legal basis for a very strong presidential system. When compared to Western constitutions, Russia’s new basic law grants inordinate power to the executive branch of government (Holmes 1994). The president appoints the prime minister and the Duma confirms his or her selection. If the Duma rejects the president’s nominee three times, the president then dissolves the Duma and calls for new elections. A similar procedure obtains for parliamentary votes of no confidence. Additionally, the constitution grants the Russian president the power to legislate by decree. Provisions in the new 1993 constitution also make it extremely difficult to amend. The one set of powers that Yeltsin did not grant to himself and his office was discretion to amend the constitution. To change chapters III–VIII of the constitution, the draft constitution stated that a “federal constitutional law” must be passed. This special kind of law required that two thirds of the Duma and three quarters of the Federal Council must pass the law and then the president must sign it. Once approved by these national bodies, the amendments would have to be approved by two-thirds of the sub-national legislatures. To amend the core sections of the constitution, chapters I, II, and IX, the new draft stated that a supermajority (sixty percent) of both houses must vote to convene a Constitutional Assembly. This Assembly then could amend the existing constitution or approve a new one by first garnering two thirds of the votes of members of the Constitutional Assembly, and then approving the new basic law in a popular referendum (Sharlet 1997). Yeltsin’s team wrote these complex procedures into their new constitution in order to prevent the incessant constitutional amendment process that occupied the complete attention of the Congress of People’s Deputies in its last year of existence. In other words, as the quote above from Cain and Jones suggests, they were reacting to a concrete and immediate political situation. The popular ratification of this new constitution helped to lock into place the office of the presidency. After an initial period of hesitation, all political actors, including those that Yeltsin had squashed in the fall of 1993, acquiesced to this new institutional order and began adjusting their behavior to play within these new rules of the game. During the next presidential election in 1996, all major political groups, including those that had resisted the idea of creating a presidency in earlier periods, ran candidates for the executive office (McFaul 1997). Ironically, a new coalition in favor of a weaker president has begun to coalesce within Russian political circles especially after the 1998 financial crisis in Russia. Except for Vladimir Zhirinovsky’s Liberal Democratic Party of Russia, all other parliamentary factions have supported constitutional amendments aimed at giving the Duma more control over the government. With the threat of communist restoration extinguished in the 1996 presidential election, many of Russia’s leading business leaders also support a stronger parliament, as these economic elites fear that the next Russian president might use the power of the executive to undo major privatisations undertaken during the Yeltsin era. In their view, a
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divided parliament is less likely to make similar moves. Finally, even some of Yeltsin’s own advisors have advocated a weakening of the presidential office, both because they fear future occupants of the office and because they are increasingly troubled by Yeltsin’s leadership abilities (Pain 1998). Despite this new coalition, it unlikely that the presidential office will be amended any time soon. As already mentioned, the legal process of changing the constitution is extremely cumbersome. More importantly, several individuals and their backers already have begun to make investments in their presidential campaigns for the year 2000. When one of these hopefuls win, it is unlikely that she or he will easily sacrifice their political and economic investments in obtaining the office in the name of parliamentary democracy. Although opposed by a majority of Soviet elites at the time of its inception and increasingly opposed by a new powerful coalition of Russian elites today, the Russian presidential office looks destined to survive for the foreseeable future. 4.
The State Duma Electoral Law
After the choice between parliamentary or presidential institutions, choices about electoral laws may rank as the next most important design decisions that new democracies must make. The kind of electoral law influences the electoral outcome (Cox 1997; Taagepera and Shugart 1989; Liphart 1984). Rational actors, therefore, choose electoral laws that maximize their ability to succeed in the electoral process. Several analysts of the origins of the Russian electoral laws have made this claim (Kitschelt and Smyth 1997). These analyses are right for the Federal Council electoral law (or lack thereof) but wrong regarding the origins and staying power of the Duma electoral law. In new democracies with little or no historical experience with elections, this relationship is often poorly understood. Small changes in the rules of the game for an election can have a consequential impact on the result. Russia’s election to the lower house of parliament, the State Duma, in December 1993 provides a dramatic demonstration of the unanticipated consequences of electoral rules and laws. Yeltsin spelled out the electoral rules for the Duma in Decree No. 1557, issued on October 1, 1993. In contrast to the constitution, this decree did not reflect necessarily Yeltsin’s preferences, as Yeltsin did not have strong inclinations one way or the other regarding the Duma electoral rules (Sheinis 1995). In late September of 1993, he was much more focused on the constitution and dealing with the Congress standoff. Yeltsin issued the decree in the middle of his struggles with the Congress, only three days before military conflict broke out between his government and the Congress-appointed government. In this context, Yeltsin had little time or proclivity to ponder the electoral effects of proportional representation versus first-past-the-post systems (Filatov 1997). Instead, those involved in earlier debates about the electoral law played a central role in writing this crucial set of rules. Discussion about a new electoral law for Russia’s parliament (be it for the Congress of People’s Deputies or a new legislative body) had begun in the spring of 1992 when two committees of the Supreme Soviet completed drafts of an electoral law independent of each other. The draft to emerge from the Committee on Local Self-Government and the Work of the Soviets specified that all legislative seats
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would be allocated according to a first-past-the-post system. Headed by People’s Deputy Victor Balala, the drafters of this bill eventually decided against proportional representation (PR) or even a mixed system.11 They argued that parties were too weak in Russia to be representative of anyone. Centrist, non-party deputies like Viktor Balala also believed that a PR-system would give the democrats an unfair advantage as they had experience in movements and quasiparty organizations while non-communist opposition forces, especially those who were members of the Congress at the time (including the drafters of this bill) had virtually no party affiliation or organization. Finally, opponents of proportional representation argued that such an electoral system would lead to yet another parliament dominated by the Moscow political elite. At the time, Balala was a member of the centrist faction, Smena. Over the course of 1993, Smena became increasingly critical of Yeltsin and his administration and became part of the hard opposition to the Yeltsin regime by the summer of 1993. Paradoxically, however, Balala’s draft electoral law was supported by several key Yeltsin advisors, including Giorgii Satarov and Mikhail Krasnov. In public statements, these Yeltsin aides supported a majoritarian system because they believed that direct elections of individuals allowed for greater accountability of deputies. They also argued that a single-mandate system would be more representative because all deputies would be elected from geographic regions. Proportional representation, in their estimation, allowed Moscow-based parties with little or no regional support to obtain legislative power disproportionate to their actual support in society. Satarov argued that the question was whether the electoral law should represent voters or parties as there were no connections between the two. Satarov vigorously argued that the law should reflect the interests of the voters and therefore opposed the PR-system (Satarov 1997). Privately, Yeltsin aides also intimated that they believed a parliament composed of deputies from single-mandate districts would be more supportive of the president and thus easier to control (Satarov 1995). The second draft of an electoral law that began circulating in the spring of 1993 came from the Supreme Soviet’s Constitutional Commission and was written primarily by People’s Deputy Victor Sheinis. Modeled after the German and Hungarian systems, the Sheinis draft proposed a mixed system which allocated a minority percentage of seats by a system of proportional representation while the majority of seats would be filled by single-mandate elections. Sheinis and his associates wanted to use proportional representation to stimulate the development of national political parties (Sheinis 1995). Realizing the nascent stage of party development, however, even the Sheinis draft allocated only a minority share of seats according to party lists. In June 1993, Balala and Sheinis circulated a text which combined their competing conceptions. Though the text integrated several aspects from each draft, the combined draft maintained the two separate electoral systems (through the use of parallel sections), leaving the choice up to the parliament. During the Constitutional Conference in the summer of 1993, Yeltsin’s aides set up a working group to work out a final electoral law that would correspond with the new draft constitution. This group included Sheinis and his team, but not Balala.12 After the dissolution of the Congress, Yeltsin’s staff—specifically the Office of the President’s Chief
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of Staff, Sergei Filatov—wrote all rules and regulations governing elections. Filatov invited Sheinis and his working group to relocate to the Kremlin and draft a decree on the elections. In this new, more fluid context, Sheinis and his associates pushed for a mixed system divided equally between PR and majoritarian seats. Sheinis reasoned that equality between these two methods was the best guarantee that neither method would be eliminated by the next Duma (Sheinis 1997). Had they retained the original formula of only thirty percent allocated according to PR, the next Duma—dominated by first-past-the-post deputies— could easily transform the system into a full majoritarian system. Sheinis’ new formula had greater promise to survive more than one election.13 Sheinis’ new draft was amended by unidentified members of the Presidential Administration.14 Most critically, the new draft reduced the number of seats allocated by proportional representation from one-half to one-third. Only days before the planned publication of the new decree on parliamentary elections, Sheinis, accompanied by well-respected legal scholar Sergei Alekseev and human rights activist Sergei Kovalev, succeeded in meeting with Yeltsin personally in order to convince him of the necessity of increasing the number of PR-seats to fifty percent. In his meeting with Yeltsin, Sheinis first argued for the merits of the mixed system on normative grounds, claiming that a mixed system would stimulate party development and thereby promote democratic consolidation. In Sheinis’ own estimation, this first argument about the need for parties did little to sway the president. However, when Sheinis argued that the proYeltsin Russia’s Choice electoral bloc would be the biggest beneficiary of this electoral system, Yeltsin became more interested (Sheinis 1997). Like most others at the time, Sheinis and probably Yeltsin believed that Russia’s Choice and the other reformist parties running in the election were capable of winning a majority of the popular vote (Sheinis 1997).15 Given their lack of reach in the regions, however, they were unlikely to win a majority of the single-mandate seats. At this critical juncture, presidential chief of staff Sergei Filatov and presidential advisor Sergei Shakhrai intervened to support the Sheinis draft (Stankevich 1995; Kharichev 1995). Both supported the fiftyfifty formula as both were planning to run on party lists. Yeltsin agreed and changed the decree. In this rule change, the preferences of the reformist party leaders were most salient as they controlled the drafting process at the time. As Michael Urban has summarized, “Russia’s Choice was able to write the script for this election” (Urban 1994:129). Enacted on October 1, 1993, Presidential Decree No. 1557 called “Regulations on the Election of Deputies to the State Duma in 1993” stated that the lower house would be elected according to a mixed system: half the seats (225) were to be determined by a majoritarian system in newly drawn electoral districts while the other half (225) were to be allocated according to a PR-system. The threshold for the PR-system was 5 percent. This election did not go as planned by the script writers. Vladimir Zhirinovsky’s neonationalist Liberal Democratic Party of Russia won almost a quarter of the popular vote on the PR-ballot. At the same time, Russia’s Choice secured a paltry fifteen percent, less than half of what was expected, while the other “democratic” parties all won less than ten percent of the popular vote. The Russian Communist Party and their rural comrades, the agrarians combined for less than twenty percent of the vote, while new “centrist” groups combined for nearly a quarter of the vote. As expected, the PR vote had stimulated the formation of
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a party system at the national level in Russia. Quite unexpectedly, however, the arrival of multi-party politics in Russia was initially dominated by an extreme nationalist party. Zhirinovsky was the principal beneficiary of the new electoral decree (Moser 1995). The PR-system decreased the importance of having effective regional organizations and increased the electoral chances of parties dominated by one charismatic leader. These conditions helped Zhirinovsky’s LDPR and hindered Russia’s Choice and the other reformist parties (McFaul 1998a). The designers of the new electoral system did not anticipate this effect. On the contrary, they had pushed for proportional representation because they believed that reformist parties would dominate the PR-ballot. In contrast, a pure single-mandate system would have greatly disadvantaged the LDPR, and made everyone else better off. While winning 59 seats in the Duma through the PRsystem, the LDPR won only five single-mandate races for the Duma. In contrast, Russia’s Choice won 34 single-mandate seats (Federal’noye Sobranie 1994:105). 4.1.
Institutional Persistence
The Presidential Administration was horrified by this electoral outcome. In their view, the mixed system had catapulted a fascist leader into national politics and produced a new parliament that was even less professional than the Congress dissolved by Yeltsin (Dunaeva 1995). The president and his team wanted to get rid of proportional representation altogether and reshape Russia’s political landscape into a two-party system. As Yeltsin explained to American reporters in 1995, This idea [for two new centrist parties] emerged because we have more than 50 parties in Russia. As we move towards the election campaign, they have started fighting voters, creating a political hullabaloo that is difficult to sort things out. As a result, sometimes those who are not the right people get into the State Duma. Therefore, we decided to cut off both the left and the right wings of the extremists movement[s] and create two centrist blocs, because as you understand, one centrist bloc would be too big. This would be a model of the bipartisan system you have had for the past 200 years, resulting in a civilized state based on civilized principles. It will be a powerful force that will stop any petty politicians from entering the Duma (Time 1995:38). As preparations got underway to create these two new parties—a right-of-center party anchored by prime minister Viktor Chernomyrdin and a left-of-center party created by Duma speaker Ivan Rybkin—executive authorities realized that they needed a different electoral system—a majoritarian system—to stimulate the development of this bipartisan system (McFaul 1996). The president’s advisors were well aware of Duverger’s law (Duverger 1954). Over the course of the next year, therefore, Presidential advisor Giorgii Satarov, who had opposed proportional representation from the very beginning, launched a major campaign to change the electoral law. Working through parliamentary factions loyal to Yeltsin, the Presidential Administration proposed a new mixed system in which 300 seats would be allocated through single-mandate districts and only 150 seats would be allocated according
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to proportional representation (Tarasova 1995). At this stage in the debate, presidential advisors tried to downplay the difference between the existing 225 allocated by PR and the 150 proposed in their scheme, arguing that the difference was marginal (Krasnov 1995). Regional leaders and even some opposition forces (specifically, those with poor representation in the existing Duma) supported this change (Kutsyllo 1995; Rumyantsev 1995). When debated in the spring of 1995, however, this amendment to the electoral law failed to pass through the Duma; only 143 out of 450 deputies voted in favor of the amendment (Remington and Smith 1996). The majority in the Duma wanted to keep the 50–50 system because fifty percent of those Duma deputies owed their seats to proportional representation. In addition, more than seventy deputies who won Duma seats through single mandates districts (SMD) were members of those parties that won seats through the PR-ballot, meaning that a solid majority always supported the 50–50 formula (de Waal 1995). This support cut across ideological lines as liberal, nationalist, and communist parties all supported the status quo formulation. These deputies also realized that the so-called marginal difference between 225 and 150 was pivotal as 225 PR-seats guaranteed that a majority would favor the existing formulation, whereas the presidential proposal did not. Within the Duma, the new electoral system from 1993 had reorganized political forces to create a new majority in favor of the status quo. The balance of power in the polity at large, however, did not accept the status quo. Both the president and members of the upper house of parliament, the Federal Council, denounced PR, and vowed to reduce it by whatever means (Tregybova 1995). Presidential advisors calculated that if they could reduce the number of PR seats before the 1995 election to less than fifty percent, the majority in the next Duma would not support PR and could therefore eliminate all PR seats. Their strategy for eliminating PR was a two-step process. After his amendment for changing the balance from 225–225 to 300–150 was rejected, President Yeltsin in turn vetoed the Duma 50–50 draft in May 1995, arguing that the law “does not fully reflect the role of political parties and public organizations in Russian politics” (Lein 1995).16 In response, the Duma failed to override the president’s veto, garnering a majority (243 votes in the first vote and 237 votes in the second vote) but not the super-majority needed to overturn a presidential veto (Orttung 1995). Negotiations on a compromise law stalled, and Yeltsin threatened to issue a decree on the Duma electoral law as parliamentary elections were scheduled for the end of the year (Bershidsky 1995). In June 1995, a compromise was forged. The Duma added minor amendments to their law, but kept the 50–50 mix. To gain Federal Council approval, the Duma agreed to sign off on the Council’s preferred non-electoral method of formation (discussed below). The Federal Council actually reneged on this compromise, rejecting the Duma electoral law on June 14, 1995 by a wide margin (76–26). The next day, however, the Council’s chairman, Vladimir Shumeiko, better briefed his colleagues of the compromise and the Council passed the agreement by an equally wide margin (133–9). When the Federal Council vote was secured, the president signaled that he would sign the new law, which he did on June 21, 1995 only six months before the election. As part of this compromise, the Duma passed Yeltsin’s law on presidential elections in May with little amendment. Despite presidential opposition, the same basic electoral rules that structured the 1993 elections were in place for the 1995 vote (Moser 1996). Besides the basic 50–50 split between PR and single-mandate
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seats, other amendments to the 1993 decree—including proposals to hold run-offs in the single mandate races, to raise the PR-threshold from five percent to ten percent, to lower the threshold to three percent, to increase the number of signatures needed to register as a party, or to raise the minimum turnout rate needed for legitimation from 25 to 50 percent—were all rejected. One might be tempted to argue that the president and his staff gave in on this debate about the Duma electoral law because the Duma has few powers and therefore the law is of little consequence. The drama of the debate and the level of effort that the president’s team devoted to overturning the old formulation, however, suggests that the president and his aides did take this law seriously. Even after the 1995 elections, the president’s team has pushed hard to amend a new electoral law for the 1999 parliamentary election.17 Despite their objections, however, the president’s team did not use raw power—power they had—to trump a Duma law by presidential decree as this move would have undermined the legitimacy of the 1995 elections. As presidential advisor Satarov stated on Russian television, the president still disagreed with the 50–50 formulation, but he decided not to veto it again because delaying parliamentary elections would provoke renewed “confrontation” and “instability” and damage “the reforms, Russians’ and the whole country’s future” (OMRI Daily Digest, May 12, 1995). Thus far, this institutional arrangement has persisted. 5.
Constituting the Federal Council
Decisions about how to constitute the upper house of the Russian parliament—the Federal Council—occurred at the same time as the initial decision about the Duma electoral decree was made. Moreover, the balance of power between political forces in the national capital also was a constant in these two design stories. Third, the very same people who drafted or had a major influence on the Duma electoral decree also played a central role in drafting the decree for the Federal Council. However, the staying power of these two designs varied considerably. While the decree on the Duma elections was codified as law after the 1993 elections and has remained in place since, the 1993 decree on the Federal Council did not survive past the first election. How do we explain this difference? Occupied with drafting a new constitution and structuring the Duma elections, the designers of Russia’s new institutions in the fall of 1993 devoted considerably less attention to the electoral rules governing the vote to the Federal Council. Debate about the formation of the Federal Council evolved around whether there should be elections at all. Because this debate was still unresolved at the time of publication of the first draft of the new constitution, the drafters of the new basic law left the wording about Federal Council formation deliberately vague. The constitution obliquely stated that the Federal Council shall be ‘constituted’, but did not stipulate what process of composition should be used. At the time of the fall 1993 decree, several regional heads of administration wanted to constitute the upper house through an appointment process which they would control (Krestyaninov 1995). Others argued that the Federal Council should consist of themselves— regional heads of administration. Few regional leaders advocated direct elections. Before the October events, Yeltsin had sought to buy off regional elites with promises of control of the Federal Council and with pledges to grant greater sovereignty to regional
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governments, especially republics (Solnick 1996). Just as Yeltsin’s constitution reneged on the latter commitment, his new scheme for constituting the Federal Council betrayed the former promise. Instead of appointment, Yeltsin and Shakhrai, the principal author of this decree, opted for an interim electoral process and issued decree No. 1628 on October 11, 1993 to spell out the rules. The decree compelled regional elites to participate in an electoral process. The Yeltsin Administration selected this formulation for a number of short-term reasons; longterm, calculations about democracy or institutional stability were not first and foremost on their minds.18 Two principal factors guided their decision. First, the Yeltsin team did not want to have half of the upper house in the hands of regional soviet chairpersons. At that time, most regional soviets had opposed Yeltsin’s decision to dissolve the Russian Congress as most of these soviets were controlled by communists. Moreover, Yeltsin ordered regional heads of administration to dissolve regional soviets and hold new elections for these legislative bodies, reorganized and renamed as regional dumas. After new elections, Yeltsin and his allies hoped for more supportive regional legislatures. Consequently, the timing was not right to make the chairs of regional dumas senators as well. Second, Yeltsin and his aides also worried about the possible negative reaction within the democratic camp and the electorate as a whole to the decision to constitute the upper house through a process in which almost half of the new members would be Yeltsin appointees. At the time, most heads of administration had not been elected, but were hand-picked by Boris Yeltsin. Council formation through this non-electoral process would look like a step in the wrong direction regarding democracy at a time when many other anti-democratic actions had just been taken. Campaign managers for Russia’s Choice, the party most closely identified with the Yeltsin government at the time, feared that such a move would hurt their chances in the 1993 elections and might even jeopardize the passage of the constitutional referendum (Bokser 1998). Direct elections looked like the better option. Nonetheless, Yeltsin aides wrote the electoral rules for the Federal Council elections in a way that would appeal to regional executive elites. Rather than two single-mandate districts, each oblast, republic, and krai constituted one electoral district with two mandates. This electoral system helped incumbents avoid defeat as name recognition alone virtually assured a sitting head of administration at least a second place finish. Furthermore, the decree stipulated that candidates needed no less than 2 percent of the total population in the region or 25,000 signatures, whichever was highest, to register for this ballot.19 Given the abbreviated time allotted for registration, this rule kept challengers to local administrators off the ballot.20 In dozens of regions, three candidates made the ballot—two from the local administration and a third unknown candidate allowed to register simply to insure that the electoral results were legitimate (Petrov and McFaul 1998). In contrast to the Duma electoral rules, this electoral decree produced the anticipated results. Of the sixty-six heads of administration that competed in these elections, only eight lost. Strikingly, only a handful of candidates won that were not affiliated with either the old or new regional elite, both of whom came from the former CPSU nomenklatura. With few exceptions, successful candidates were not members of new parties.
46 4.2.
MCFAUL
The Lack of Institutional “Lock-In”
In contrast to the electoral decree for the State Duma, the new design for the Federal Council did not produce a majority within the Council that favored the existing electoral procedure. On the contrary, regional heads of administration and their allies dominated the new Federal Council. Rather than direct elections to the Federal Council again in 1995, this group pushed for direct elections for their regional offices, followed by automatic appointment to this national body. Such a formulation would give them increased local legitimacy and greater autonomy from Yeltsin and Moscow as elected governors would be harder to dismiss than appointed ones (McFaul 1997b). Prominent Federal Council members who were not governors such as Yurii Boldyrev, Yurii Chernechenko, and Yelena Mizulina, resisted this change by asserting that the new procedure was undemocratic, but this group was a small minority within the Council. To change the rules of the game for constituting the Federal Council, regional executives had to bargain with both President Yeltsin and the Duma. After all, the people ratified a new constitution in 1993 which clearly specified the ways in which new laws should be passed. In this bargaining process, regional executive leaders started from a strong position. Regarding the Duma, the majority within the Federal Council offered a trade. If the Duma would ratify their new law on the formation of the Federal Council, they would pass the Duma’s electoral law and not the president’s draft.21 After a long set of negotiations, which included the passage of a Duma draft law which called for the election of the Federal Council again, this bargain prevailed. As for the president, these regional leaders offered their blessing for Yeltsin’s presidential electoral law and support for his re-election bid in return for the president’s support of the new law on Council formation and the president’s acquiescence to direct elections for regional heads of administration (Freeland 1995). This deal also stuck, though Yeltsin’s team insisted that the majority of elections for regional heads of administration occur after the presidential election to insure Moscow’s leverage over regional leaders during the campaign process (Omri Daily Digest, July 28, 1995). In this case, the initial design did not lock in; path dependency had little effect. The decree in the fall of 1993 was radically out of alignment with the balance of power and preferences of actors most effected by the decree. As an interim solution to a crisis situation, these powerful political actors played by the rules of the game outlined in the decree one time, but one time only. Nor did this first iteration realign interests and redistribute power to fit with the new institutional design. Consequently, the interests of the powerful were sufficient to change the rules of the game. The new design more closely reflects the interests of the powerful in this arena of politics and , therefore, is likely to endure.
6.
Conclusion
Rational actors design institutions to serve their interests. Sometimes they succeed in this goal and sometimes they fail. Some institutions represent the summation of preferences of those that make them. Other institutions take on life of their own, independent of actors who originally designed them.
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The three cases presented in this article illustrate both kinds of outcomes. Regarding the creation of the Russian presidency, Russian political actors at the time of creation were deeply divided about the necessity of the office. In the Soviet polity as a whole, the most powerful elites opposed the idea. Because of normative constraints, they allowed the office to be created, but believed they could minimize its powers through additional legislation at a later date. The very act of creating the office, however, changed the balance of power within Russia, giving Yeltsin and his allies a new institutional base that was independent from opposition control. Unexpected events such as the August 1991 putsch attempt and the dissolution of the Soviet Union further strengthened the staying power of the presidential institution. When opponents of this institution tried to eliminate the office in the fall of 1993, Yeltsin responded with force. After victory, Yeltsin then wrote into place a new constitution which further strengthened the staying power of a presidential system. The second case—the evolution of the Duma electoral law—also is a story of institutional persistence that went against the grain of the original set of interests and balance of power that created the law in the first place. Yeltsin and his associates penned the 1993 electoral decree that allocated half of the seats to the new parliament to be allocated through proportional representation and half through single-mandate districts. From the president’s perspective, this decree produced unanticipated and unwanted results. He and his associates tried to change the 50–50 mix, but failed. The 1993 decree created a new majority in the Duma which favored the new status quo. Though against the interests of the most powerful in the Russian polity (and first and foremost the president), this new set of rules has survived. In the third case, the original design did not survive. The electoral decree which structured the formation of the Federal Council in 1993 was overturned in 1995. The original design did not create a majority (either within the Federal Council or the polity as a whole) in favor of the new status quo. Consequently, this new institution was more vulnerable. These cases suggest a number of conclusions about institutions, institutional design, and institutional change. First and foremost, the theoretical dichotomy between sociological institutionalism and rational choice institutionalism is a false one. Under certain conditions and in certain kinds of cases, actors cannot create the institutions of their liking; under certain conditions and in certain kinds of cases, they can. Militant adherence to one theoretical approach or the other is unwarranted if one of the aims of these theories is to explain the origins of institutions in the real world. This article has suggested the kinds of conditions under which powerful actors may not be able to design institutions that perfectly reflect their preferences. During times of regime transition, uncertainty is high, and actors cannot make accurate calculations about the future effects of their choices about institutional design. The cases discussed above from the Russian transition demonstrated how actors’ choices about institutions under uncertainty can produce unintended consequences. Sometimes actors can correct their mistakes and alter institutional designs not of their liking. Sometimes they cannot. Whether or not an institutional arrangement sticks depends on the new balance of power and interests that arise after institutional creation. If increasing returns result from the new rules, then path dependency is likely. Institutions that reorganize interests to favor the new status quo produce increasing payoffs to those who adhere to the new order, while at the same raise the costs of creating new institutional
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forms. Institutions that do not create such rearrangements of interests of the powerful are susceptible to change. No institutional design is ever permanently stable. Because Russia is still mid-stream in one of the greatest economic, political, and social transformations in the history of the modern world, we must still be humble and cautious about making any predictions about the long-term viability of any institution.22 And like all institutions everywhere, we will only know if Russia’s new institutions have failed after the fact.23 Even such brilliant institutional designs as the original American Constitution have failed, and allowed for civil war. Rather than make predictions about the long-term viability of any institution, this paper more modestly has attempted to specify the reasons why some institutional designs outlive the original balance of power and preferences that created them, and why other designs do not.
Notes 1. This is a stark generalization. Most comparativists working within a historical institutionalist approach do leave room for actors. See, for instance, the case studies in Steinmo, Thelen and Longstreth 1992. 2. In contrast to the standard economic accounts of institutions as resolutions to coordination problems, Moe has referred to these situations as the “politics of structural choice.” See Moe 1990, and Moe and Caldwell 1994. 3. Although this dichotomy is found in the literature, it is probably more accurate to claim that all institutions have varying degrees of efficiency and distributional functions and that some institutions are more efficient while others are more distributional. 4. Because of this newness and uncertainty, others have argued that institutions cannot be treated as exogenous variables. See (Kitschelt 1992:9). 5. Rational choice theories have made their greatest contributions regarding situations with highly stable institutional settings. See Shepsle 1979 and Bates and Weingast 1996. 6. Compare, for instance, the years of deliberation that have gone into every institutional innovation within the European Union to the weeks that designers of institutions had to work with before the creation of the Commonwealth of Independent States. 7. In many ways, this institutional choice is the most fundamental of all, yet is still poorly understood by political scientists. See Moe and Caldwell 1994. 8. Shabad 1995; Konstantinov 1995; Frye 1997. People’s Deputy Anatolii Shabad, a Jew, was deeply offended by the kinds of conversations he overheard during the deliberations on this declaration but saw this alliance as a tactical necessity. In contrast, Russian nationalist Ilya Konstantinov recalls that he voted for Yeltsin and sovereignty, but then deeply regretted his votes. 9. In fact, the referendum created real problems within the Russian reformist movement. Radical, anti-imperialists such as Yurii Afanasiev, Galina Staravoitova, and Lev Ponomarev pushed to vote “no.” On the other hand, statists such as Nikolai Travkin, Viktor Aksiuchits and Mikhail Astafiev argued that Russia’s reformist forces could not vote against the preservation of the union. A third position of boycott was not tenable because Democratic Russia wanted voters to go to the polls to vote “yes” on the added question about creation of a Russian presidency. 10. It must be remembered that the presidential referendum questions needed a majority of all voters , and not just a majority of those voters that voted, in order to pass. 11. Their first draft, published on June 5, 1993, did not specify which kind of system. Rather, it outlined four possible different systems including majoritarian, proportional representation, and mixed. I am indebted to Victor Balala for providing this draft and all subsequent drafts to me. Balala also provided me with several interviews during the spring and summer of 1993 in which he explained the debates surrounding this legislation. Much of the next several paragraphs is informed by these interviews. 12. Balala’s exclusion was for political reasons as his faction, Smena, had become increasingly critical of the president by this time.
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13. In other words, Sheinis’ new 50–50 draft was a structure-induced equilibrium. Sheinis’ team rightly estimated that some deputies from single-mandate districts would be affiliated with parties that wanted to maintain PR, thus insuring that a majority in the Duma would support the preservation of the Sheinis formulation. See Shepsle and Weingast 1981. 14. In an interview with the author (Sheinis 1997), Sheinis believed that the law was rewritten by Aleksandr Kotenkov, head of the GPU at the time a strong proponent of the single-mandate system, but he has never been able to confirm this. Nikolai Ryabov, the head of the Central Election Commission also supported the one-third PR formula. 15. In a pre-election manual written for international electoral observers, this author made this same claim at the time. Early polls suggested the Russia’s Choice might win as high as forty percent of the popular vote. See NDI Pre-Election Report 1993. 16. In the previous month, a joint commission of the Federation Council and the Duma proposed a “compromise” bill that actually raised the numbers of single-mandate seats to 330, but this was soundly defeated by the Duma in April. 17. The new electoral law written by Sheinis retains the 50–50 formulation but adds a number of restrictions to provide greater separation between candidates running on party lists and those running in SMD. (See “Federal’nyi zakon: O vyborakh deputatov Gosydarstvennoi Dumy Federal’nogo Sobraniya Rossiiskoi Federatsii,” October 24, 1997. In the fall of 1997, the first reading of this law passed. At the time of this writing, the new legislation had not become law. On presidential objection to this new law, see the interview with presidential head of administration, Mikhail Komissar, in Russkii Telegraf, February 7, 1998. 18. It must be remembered that for Yeltsin, the ratification of the new constitution was most important during this volatile period in Russian politics. 19. Article21 of “Polozhenie o vyborakh deputatov Soveta Federatsii Federal’nogo Sobraniya Rossiiskoi Federatsii,” (Decree No. 1626), October 11, 1993, reprinted in “Vybory” No. 2, Postfactum, (October 19,25, 1993), p. 5. 20. At the same time that Yeltsin dissolved the Russian Congress of People’s Deputies, dozens of local soviets were also disbanded. As the chair of these local legislatures was usually the leading opposition figure as well, these dissolutions robbed these potential challengers to local executive authorities of organizational and institutional resources to conduct a campaign only weeks before the 1993 vote. 21. Viktor Sheinis, the principal author of the 50–50 mixed electoral decree and law for the State Duma, was also one of the most vocal opponents of Federal Council formation rather than election. Eventually, the majority in the Duma outweighed his minority resistance to the new Federal Council law. 22. The recent shift in the balance of power in Russia after the summer 1998 financial crisis will offer a nice test of institutional persistence regarding the Duma electoral law and the presidency. The direct political consequence of this economic crisis has been a shift in power away from the president and to both the Duma and regional leaders. As a result of the shift in power away from the president and to the Duma, Communist deputies in the Duma have revived their campaign to amend the constitution to limit the powers of the presidency. As a result of the shift in power away from the president and to regional leaders, governors have pushed to eliminate proportional representation from the Duma electoral law. At the time of this writing, however, neither the presidency nor the electoral law had been undermined. 23. This is a general problem of institutional analyses. For many theorists, this is the very reason why political science should be concerned with equilibria analysis and not attempt to theorize about disequilibria. In recognizing this problem, Riker called political science the “dismal science” (Riker 1980).
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