Leonid Nikitinsky: The machine of totalitarianism only looks indestructible [Novaya gazeta]

13 May 2024

by Leonid Nikitinsky

Analysis of the recently adopted law depriving ‘foreign agents’ of the right to stand in elections from the point of view of the ‘machine of modernized totalitarianism’

Source: Novaya gazeta

On 6 May the State Duma passed in second and third readings a bill prohibiting ‘foreign agents’ from taking part in elections for legislative bodies at all levels. And if an ‘agent’ has conspired and broken through, the mandate legally received by them from the voters will be formally cancelled.

In fact, this is a mechanism of retroactive punishment, but the commander of the Duma, Vyacheslav Volodin, called it ‘humane’: current and future deputies who are ‘foreign agents’ will have as much as six months to ‘get out from under foreign influence’ by somehow reaching an agreement with the Russian Ministry of Justice (which is unlikely).

This is the end of representative democracy in modern Russia.

And there would seem to be nothing more to talk about. But this long, 35-year story will become a whole separate chapter in the legal textbooks for future generations of law students and a vivid illustration of how the MMT – ‘Machine of Modernized Totalitarianism’ – worked in Putin’s Russia (we presented this in detail in the magazine Gorby № 5, also published on the website of Novaya gazeta on 24 January).

Analysis in terms of the MMT implies a focus not so much on laws as on practices, and the concept of a ‘machine’ or an ‘assemblage of procedures’ focuses our attention on the heterogeneity, diversity, and often questionable legality of these practices, which are somehow connected to the law, but in which hooks and holes are left in advance.

Two lines of development of legislation at once – on elections and on ‘foreign agents’ – provide the richest material in terms of explaining the practices of unlawfulness.

Let’s start with elections: the Duma is the most important part of the MMT, because the ruling party needs a qualified majority in the legislature for the working of its judicial and law enforcement elements.

In the USSR, the Communist Party did not allow anyone who could question its line to be elected. Now we are back to the same point. But in the elections to the Congress of People’s Deputies of the USSR in March-May 1989, the chances for deputies to appear who had not been nominated from the ruling party, although gradually being restricted, were still preserved at least at the level of regional assemblies.

Most of them were removed from the 4th Duma (2004-2008) by tightening the legislation on political parties and raising the percentage barrier for them – the SPS and Yabloko failed to gain any representation. Deputies elected in single-mandate constituencies joined the parties whose members were elected on party lists. In this way, United Russia gained a constitutional majority and the ability to further change the electoral legislation as it saw fit.

In 2005, a law was passed that eliminated single-mandate districts in Duma elections and a proportional system with a high threshold of votes was adopted. Requirements for parties were tightened and independent election observation was made more difficult. From that moment on, the key role was played not by legislation, but by the ‘wizard Churov’ in the Central Election Commission and those appointed by that commission to head the territorial election commissions. The grassroots polling stations were also brought into line, and there ‘representatives of the public’ were brought in to carry out the roles of ballot stuffing and obstruction of election observation in the most exotic ways, even going so far as physical violence.

From 2005 onwards, electoral legislation was changed by means of individual amendments, but as many as 8 or 10 times a year. This made it so convoluted that the role played by the practices of the Central Election Commission increased significantly, and they always turned out to work in favour of United Russia.

After the Russian Federation lost a case at the European Court of Human Rights in 2011 over denying registration to the PARNAS party, the legislation had to be softened. However, United Russia found a new way of fixing things: spoilers appeared, drawing votes away from opposition parties. The ‘against all’ column on ballot papers was eliminated and so-called ‘steam locomotives’ were legalized – persons who figured first on the lists but who could subsequently transfer their mandates to any fellow party member.

In elections to regional assemblies, the practice of doppelganger candidates emerged (in the elections in St. Petersburg in 2021, in addition to the real one, two temporary Boris Vishnevskys were nominated, both of whom grew beards and moustaches for this purpose).

The most important barrier was the introduction of the requirement for presidential candidates to collect signatures in their support. At first a prohibitive two million signatures were required, then this number was reduced for nominees from registered parties to ‘only’ 100,000. In February 2024, Boris Nadezhdin managed to submit 105,000, but 9,147 of them were rejected by the Central Election Commission. It is unlikely that we will ever know the truth about these signatures: the process by which they were verified by the Central Election Commission, including by ‘handwriting experts’, was completely non-transparent.

2020, when the amendments to the Constitution were submitted to a ‘national vote’ under the pretext of quarantine, saw the testing of residential, multi-day and electronic voting. The quarantine seems to be over, but these innovations, which made independent oversight of the counting of votes virtually impossible, remain. All of them are in fact essentially procedures designed to enable the use of official resources by means of the election commissions.

A more detailed analysis of the changes in election legislation can be found in an article by Arkady Liubarev, designated a ‘foreign agent’ in the Russian Federation, on the website of the Golos Movement for the Protection of Voters’ Rights, also designated a ‘foreign agent’.

Here we have come to the second line of those procedures we are interested in: the development of legislation on ‘foreign agents’. The concept of ‘foreign agent’ appeared in 2012 in the form of amendments to the law ‘On Non-Profit Organizations’. Initially, it was stated (including repeatedly by the president) that the status of ‘agents’ does not infringe on their rights, but only obliges them to report on the receipt of foreign funding if they are engaged in ‘political activity’.

Contrary to these statements and the Constitutional Court’s ruling No. 10-P of 8 April 2014, ‘foreign agents’ have been consistently prohibited from, inter alia: holding public office, being a member of election commissions and participating in election campaigns; engaging in work requiring a clearance for classified information; participating in anti-corruption and environmental evaluations; organizing public events; engaging in educational activities; participating in public procurement; receiving state financial and other support; and, from March 2024, receiving income from advertising and using the simplified system for making tax returns, and other things.

According to the Civil Code of the Russian Federation (Article 1005), an ‘agent’ is a person who performs work in favour of another specific person (principal). The term ‘foreign agent’ is used in the legislation not as a legal term, but as an ideological one. This innovation, through an ambiguous use of language, attaches a kind of label – a stigma – to the status of being listed in the registry held by the Ministry of Justice. Restrictions on ‘foreign agents’ essentially give the form of law to discriminatory practices that are unconstitutional (see the ruling of the Constitutional Court): everyone who receives or expects to receive something from the state must avoid ‘foreign agents’ like the devil.

In the logic of MMT, the classical pyramid of law and law enforcement is inverted. Its main element becomes not the legislative authority, but police bodies in the broad sense of that word (all those who administer permits and prohibitions). Legislators only serve the requirements that arise out of the practice of this repressive part of the machine, while the courts endow them with the formal signs of legality.

The Central Election Commission always looms behind the procedures dealing with elections, just as the Ministry of Justice is in charge of discrimination against ‘foreign agents’ in the same police regime. Contrary to its own official explanations, ‘political activity’ here means virtually any public activity, and foreign funding means any penny, including that received indirectly through Russian structures. However, after the adoption on 14 July 2022 of the law ‘On oversight of the activities of persons under foreign influence,’ there is no longer any need to prove financing: the vagueness of ‘influence’ is measureless.

Why did they need to adopt (by smuggling it into a bill that was about something quite different in the first reading) a law depriving ‘foreign agents’ of the right to take part in elections? Why not, after all, let at least a number of opposition-minded deputies into regional legislative assemblies, and even into the Duma, – something that would make no difference to the authorities – for the sake of decency? What could they do there that would be so terrible?

We attribute the characterization of the MMT as a ‘modernized’ machine to the fact that, while ensuring the suppression of dissidents mainly through repression, it also functions as media. It is a means of mass communication that broadcasts ‘unity,’ and no dissenting voices can be allowed to be heard – they simply have the microphone cut off.

MMT is all made up of a patchwork of individual fixes. Laws and amendments to laws are adopted ad hoc every time in order to plug a specific hole. For example, the law that we have been analysing was a reaction to a clever prank by a number of ‘foreign agents’ who threatened from abroad to run for the Moscow City Duma in the September elections out of pure political mischief.

Practices of the kinds we have been discussing are destructive of institutions. In each case, to ensure the introduction of unlawful practices, an appeal is made to the imagination of the perpetrators, intended to create not legal obligations but obligations based on ‘mutual understandings.’ As a result, the machine of totalitarianism only looks indestructible – it can crumble at the least puff of the political wind.

Translated by Simon Cosgrove