Paul D'Anieri, Understanding Ukrainian Politics: Power, Politics, and Institutional Design, 2007.
9 How Power Politics Trumps Institutional Design
This chapter considers the strategy and tactics, or what we might call the "methodology," of electoral authoritarianism in Ukraine.1 Many of these tactics have already been alluded to in the previous chapters, and an overview was provided in Chapter Three. It is necessary to show that they are not merely disconnected efforts. Rather, the various tactics employed by Kuchma to utilize executive authority to control politics in Ukraine constituted a coherent strategy that became more organized over time. A crucial question in post-Kuchma Ukraine is whether these tactics will be banished to the past or continue to lead to the concentration of power in the executive branch. While some of the sources of electoral authoritarianism were removed during the Orange Revolution, others remain as powerful as ever. The most important change is the redivision of control over the executive branch between the president and prime minister. This change alone makes it considerably less likely that a single person or clique will amass as much power as Kuchma. Whether this new system is conducive to effective governing is another matter.
The Ukrainian executive branch controls three broad categories of resources that serve as levers of political influence: control over law and administrative enforcement, control over large sectors of the economy, and patronage (control over government jobs). To some extent, the first two categories overlap, because one way of controlling the economy is through selective law and administrative enforcement. These three basic resources are highly fungible, meaning that they can be used to influence actors and to pursue goals in a wide variety of spheres. This is most true of selective law and administrative enforcement, which can be used, for example, to ensure the defection of a politician from an opposition party, to close down a troublesome newspaper, or to give crucial business advantages to an ally, who in turn will contribute to reelection efforts.
Democratic institutional design is intended to provide for rule by the governed, the accountability of elected officials, and limited government power. Elections, the separation of powers, and the rule of law are means to these [193] ends. Elections provide for consent by the governed, and also create, through alternation of leaders in power, a check on the abuse of government authority. Other elements of the constitution as well as the separation of powers and the rule of law are intended both to maintain the powerful role of elections and to curb the abuse of power in many other ways. Rules maintaining freedom of the press ensure that government misdeeds are publicized, so that the governed can act on them. Together, these institutions should compel the government to govern in the interests of the people. Even in the most liberal democratic society, these goals are attained only approximately.
The goal of Leonid Kuchma and other Ukrainian elites has been to use various tactics to break these links, in order to remove the checks on their power. Where institutional design creates a separation of powers, they have sought to subject both the judiciary and the legislature to the control of the executive. Where the laws provide for free and fair elections, many of Ukraine's elites have sought to make elections unfair, so that they do not make the government more accountable, and especially so that continuation in power of the ruling group, rather than alternation in power, becomes the norm. They seek to curb freedom of the press to keep the public unknowl-edgeable about the government's misdeeds as well as to win elections.
As Roeder asserts, the central problem for the would-be authoritarian is "control of accountability."2 The single most important goal for Leonid Kuchma and the group of elites around him was to maintain control of the executive branch. Control of the executive branch is central to holding both political and economic power in Ukraine. Because elections are a powerful source of accountability, Kuchma and his supporters strove to control them (rather than abolish them). The goal is to maintain control while presenting an impression of fair elections, from which immense legitimacy is gained both at home and abroad.
Not unique to politicians in Ukraine, these goals are present in most democracies. What varies is how far such attempts go, how they can be countered, and how much success they meet. The key question for every society that aspires to liberal democracy is not simply the design of institutions, but what happens when institutional design is confronted by power politics. In Ukraine, power politics triumphed until December 2004, largely because power was so concentrated. The discussion that follows elaborates exactly how practical power can be legitimized through ostensibly liberal institutions. The conclusion will address the prospects for change in the years ahead.
Selective Law Enforcement
Selective law enforcement refers to the political use of law enforcement activity. Excessive scrutiny of minor violations can severely hamper one's [194] opponents, while ignoring significant violations can empower one's allies. Selective law enforcement is an all-purpose tool for coercing political opponents. It is used to shut down or to intimidate media outlets that create problems for the president. It is also used to coerce business leaders to support the ruling group and to ensure that their employees vote for it. When business owners are also members of parliament, selective law enforcement is a useful way to control their votes.
Selective law enforcement is especially easy in Ukraine's confusing legal environment. The complexity and self-contradictory nature of the Ukrainian tax and legal codes make perfect compliance nearly impossible. The variety of law enforcement bodies and their overlapping jurisdictions further confuse the situation.3 Moreover, government corruption tends to drive firms out of the official economy, which then makes it easier to charge them with violating the law. While international organizations have often sought to persuade the Ukrainian government to reduce the complexity of the tax code and to combat corruption, they fail to recognize that it persists in part because it facilitates the control of firms and votes by the executive branch.
Creating a situation where noncompliance is the norm facilitates selective law enforcement. If everyone is guilty of something, then everyone can reasonably be prosecuted at any time, completely legally, and without it appearing repressive to the public. Survey research conducted by Simon Johnson and his colleagues has shown that government demand for bribes, rather than high tax rates or organized crime, drives Ukrainian business out of the official economy.4 The problem is massive, with 41 percent of economic activity, according to the figures of Johnson and his colleagues, in the "shadow economy," and hence vulnerable to politically motivated persecution.5 Focusing enforcement on those who either oppose or insufficiently support the government can turn the shadow economy into a powerful and widely applicable political lever. Such politically motivated enforcement, by all accounts, did not disappear after the Orange Revolution.
This phenomenon is demonstrated in a conversation secretly recorded in President Kuchma's office. Kuchma is overheard telling Mykola Azarov, the head of the tax inspectorate, to make sure that Azarov has some grounds for prosecuting every business leader within a particular region, and to prosecute those that do not deliver sufficient votes to the referendum campaign in 2000.6 In theory this could be applied to every firm in Ukraine, covering nearly every voter.
Ukraine's Byzantine tax code provides numerous possibilities to accuse enterprises, including media outlets, of having violated the law and underpaid taxes. Most tax offenses are criminal rather than civil offenses, and tax inspectors do not need to take alleged violators to court; rather, they can simply [195] arrest them.7 The tax police have the authority to close any business found to be in noncompliance. Even if the matter could eventually be sorted out in favor of the firm by a court, by that time the firm will likely have gone bankrupt due to the disruption of its business. Fire and health inspections can also lead to the closing of a business. In fact, nearly any government body can conduct inspections of a business to look for violations. Thus, the newspaper Den' was inspected over thirty times in a period of thirty months.8 Such harassment is technically within the existing legal framework, creating the impression that the closure of media outlets amounts to law enforcement rather than political control, and that the outlets affected had it coming to them.
Selective Law Enforcement and Control of Media
A good example of selective law enforcement as a means to control media is the enforcement of broadcasting licenses. During the 2002 parliamentary election campaign, the government blocked transmission of some regional television outlets because their licenses were expired. However, in some cases the licenses had been expired for two years, with no enforcement. In other cases, broadcasters continued to operate without licenses with no interference. Whether stations operating with expired licenses were shut down appeared to be linked to the editorial line they took.9
Another method, effective especially against the press, is the libel suit. Ukrainian libel laws put the burden of proof on the news source to prove the truth of its reporting, rather than on the plaintiff to prove libel. As a result, the printing of any serious allegations without absolute proof can be dangerous, even though, in many respects, that is a key role of the press in a liberal society. Libel judgments can easily bankrupt a news outlet, and, as with tax laws, judgments are often enforced immediately, such that even if an appeal is successful, it is often too late to do any good. For example, in 1998, the popular newspaper Vseukrainske vedomosti was bankrupted by a $1.75 million libel suit by the Dynamo Kyiv football club, which was controlled by supporters of Kuchma. Kyivskie vedomosti was sued by the interior minister, Yuri Kravchenko, and found liable for $2.5 million in damages, although that award was later overturned.10 There are numerous other examples of similar efforts.
In practice, such tactics need to be employed only occasionally to be largely successful. A few prominent examples serve to warn every other media outlet what can happen to them if their coverage is damaging to the executive branch. These warnings lead to self-censorship, which is exactly what the government wants. The extensive use of these tactics led the Committee to Protect Journalists to name Leonid Kuchma to its list of top ten enemies of a [196] free press in 1999 and 2001. In its 2002 Worldwide Press Freedom Index, Ukraine ranked 112 out of 139 countries in terms of government interference with the news.
Selective Law Enforcement and Control of Parliament
The same leverage can be applied against members of parliament. Particularly in the center of the political spectrum that is crucial to control of the parliament, a large number of the deputies have important business interests (this does not appear to have changed with the shift to proportional representation [PR] in 2006). While parliamentarians themselves have immunity from prosecution (something Kuchma sought to do away with), their businesses are not immune to arbitrary inspections and closures. The executive therefore has a powerful lever over businesspeople in parliament. It can confer some degree of de facto immunity from law enforcement, as well as access to choice government contracts. Therefore, some businessmen seek seats in parliament primarily because of the executive's desire to control deputies: they seek to trade their votes in parliament for favorable treatment for their businesses.
The bribery of deputies is an even more direct method of controlling parliament. Because this is clearly illegal, it tends not to be well documented, but it is so widespread and the anecdotal evidence is so varied that there is little doubt that it is a frequent occurrence. In Kyiv, those close to the parliament can recite the "going rate" for various "services," from voting on a particular bill to switching parliamentary factions. Because the executive branch and the oligarchic parties that support it have access to so much money, they are more capable of using bribery. Moreover, because the executive controls law enforcement, its bribes are sure to remain beyond official investigation. In 2000, former president Leonid Kravchuk, at that time a member of the pro-presidential Social Democratic Party of Ukraine (United) (SDPU[o]), said, "if someone is for sale, they will buy him. Here everything occurs in this manner—voting and transfers."11
The executive's ability to decisively sway votes in the parliament was demonstrated after the 2002 parliamentary election. Following the elections, Our Ukraine won a plurality of seats and looked well positioned to form a majority, and to name the new speaker. For several weeks, neither the opposition nor the pro-presidential forces could muster enough votes to achieve a majority. Eventually, Volodymyr Lytvyn, former head of the presidential administration and a member of the pro-presidential SDPU(o) was proposed. Opposition leaders confidently stated that they had enough votes to block Lytvyn's election. But on the day of the voting, just enough deputies [197] defected from opposition parties to give Lytvyn 226 votes—the bare minimum needed to win a majority. Seven deputies had defected from Our Ukraine, and smaller numbers from other opposition parties. Press reports indicated that for this vote, deputies were being offered $250,000 to defect, while opposition politicians asserted that the price was $500,000.12 Of the seven deputies who defected from Our Ukraine, six were millionaire businessmen who reported being told either to defect or be bankrupted. The seventh was the prominent politician Volodymyr Shcherban, former head of the Sumy Oblast administration, who said simply: "I didn't come here to fight with the powers."13 One of the few parliamentarians who has spoken on the record about bribery states that "if it is not a matter of big money, then money can be brought, as it used to [be], in photocopier boxes, according to the well-known Russian model. If the amounts are big, then probably they are transferred from one foreign account (usually offshore) to another."14
Some of these defectors were not bribed or coerced, but, it appears, ran as "stealth" candidates, gaining spots on the Our Ukraine list while intending to defect later. The incentive for the deputies to do so was twofold: they may have been able to obtain a higher spot on the Our Ukraine list than on another list, and they may have been handsomely rewarded for their efforts.
Casfrpoor parties are especially vulnerable to such efforts, because their need for campaign funds creates a temptation to give high spots on their list to significant contributors, in effect using their party list as a fund-raiser. Viktor Suslov, a member of parliament, reported in 2002 that leading businessmen wanting a seat in parliament were paying between $300,000 and $1 million for a high spot on a party list.
If you analyze the composition of the so-called safe section in any election bloc in Ukraine, you will see that where the coalition's rating is fairly high, then the businessmen appear if not in the top five, then in the top ten, and that's a fact. It's easy to pick them out: the people who have their places on the party lists never showed an interest in politics, never worked for any party. Their appearance can be explained by only one thing: the payment of that million dollars.15
These problems, which may be even more prominent with the shift to the full PR system, point to the need to develop stronger parties, either with reliable independent bases for funding or with access to public funding. They also point to the importance of the adoption of the imperative mandate, which will at least restrain the ability of elected deputies to change parliamentary faction repeatedly and at no cost. [198]
Control of Media
Control of the media was a major means by which Kuchma's group sought to avoid accountability and control elections. Above, we showed how selective law enforcement was used to eliminate unfavorable coverage of Kuchma and his supporters. However, a broader ranger of tools supplemented selective law enforcement.
Intimidation of Individual Journalists
In addition to pressure on media organizations, efforts have also been aimed directly at individual journalists. Kuchma himself was deeply implicated in the most notorious case, that of the journalist Heorhiy Gongadze, who was murdered in 2000. To summarize, Gongadze was a relatively obscure journalist, writing for a Web site (to which very few Ukrainians had access) known for its investigative reporting and its criticism of the government. After his murder, tape recordings made in Kuchma's office, and later authenticated by the U.S. Federal Bureau of Investigation, showed Kuchma ordering his interior minister to do something about Gongadze. Even if this does not absolutely prove Kuchma's involvement,16 it shows his strong interest in repressing journalists who criticize his rule.
Among the many mysteries of the Gongadze affair is why Kuchma should have been concerned about this particular journalist. While Gongadze's criticism of Kuchma was trenchant, it had almost no audience. The decision to go after him seemed to contradict the broader strategy of leaving alone smaller outlets of criticism that have little influence on the mass public. Indeed, the existence of these small critical organizations, such as the newspaper Dzerkalo tyzhnya (with a circulation of just 48,00017), allows the government to claim that Ukraine has a free press. Thus, a government official in information policy pointed to Dzerkalo to prove to the author that critical newspapers were allowed to operate in Ukraine, and that accusations of government control of the press were overblown.18
Secret Bulletins (Temniki)
In 2002, the government's influence over media was sufficiently strong that the presidential administration began dictating content to news outlets, through secret bulletins (temniki).19 The temnik was an eight- to ten-page daily bulletin sent from the administration of the president to major news outlets, indicating which stories were to receive prominent coverage that day, and what slant was to be given them. The temniki gave very precise instructions about [199] news coverage, leaving little room for interpretation. Editors were clearly under pressure to conform, lest they be subject to the measures described above, or simply fired.
There can be little doubt about the influence of such measures. According to monitoring conducted by the Organization for Security and Co-operation in Europe (OSCE) during the 2002 parliamentary election campaign, coverage of United Ukraine averaged 21 percent of the attention given to parties, while the Bloc of Yulia Tymoshenko received just 3 percent. Moreover, United Ukraine coverage was overwhelmingly positive, and the Tymoshenko Bloc's coverage negative.20 Similarly, "in the six weeks preceding the election, Mr. Lytvyn and Mr. Kinakh received more than seven hours of coverage on UT-1 prime time news and current affairs programs. By comparison, during the same period, Mr. Yushchenko received a total of 14 minutes despite the bloc's leading position in most opinion polls."21 As several of the temniki demonstrate, the presidential administration sought to have Tymoshenko herself disappear from the news. When a criminal case against Kuchma was opened by a Kyiv judge in October 2002, five of the six main stations ignored the story altogether in their main evening newscasts, while ICTV carried the item fifth in its evening news show.22 The goal of this policy is to have the best of both worlds: the press appeared to be free, and would thus be trusted by the public. At the" same time, the content of media coverage was tightly controlled by the government.
As in the Gongadze case, however, rather than producing a more docile press, the measure induced a backlash among irate reporters. A number of prominent news anchors, such as Yevhen Hlibovitsky of TV 1+1, resigned their positions, while the journalists of the UNIAN news agency held a press conference to publicize and protest the new attempt at government control. As an effort to increase the legitimacy of the regime, the temniki probably backfired. In the 2004 presidential elections, control of the press failed the Kuchma/Yanukovych team in two ways. First, the overall credibility of the press was undermined, so that its biased reporting was largely ineffective. Second, at the decisive moment in the contest for power, many major media outlets refused to continue biased coverage, announced that they had been under government control, and provided extensive coverage of the opposition movement.
Ownership of Media Outlets
Ukrainian television, where over 75 percent of Ukrainians get their news,23 was largely owned by Kuchma's government and his supporters. While Ukraine has a vast number of small and largely irrelevant local television [200] and radio stations, there are six national television stations. Of these, one (UT-1) is owned by the state. Three others (Novyy Kanal, STB, and ICTV) were controlled financially by Kuchma's son-in-law, Viktor Pinchuk, who also controlled the country's largest daily newspaper, Fakty i komentarii. Leading figures in the pro-presidential SDPU(o) party, including Oleksandr Zinchenko, controlled the other two, Inter and Studio 1 + 1.24 Zinchenko's defection from the pro-presidential camp helped undermine this monopoly during the Orange Revolution.
In addition to a general environment of bias and censorship, access to media during election campaigns was highly variable, though the situation improved dramatically during the Orange Revolution (see below). At the regional and local levels, many parliamentary candidates found it very difficult to gain access to media.25
However, control of the media could not reliably achieve the results Kuchma and his colleagues sought, in large part because the Ukrainian public is widely skeptical of the news media. Because there is little recent tradition of a truly free and activist press in Ukraine, Ukrainians do not assume that they should believe everything they read or hear. After decades (or even centuries) of total state media control, a short period of press freedom in the | 1990s has not been enough to undermine public skepticism.
Patronage
Shaping opinion through control of the media is an indirect means of influencing voting behavior. Patronage is much more direct. In Ukraine, the largest source of patronage is government jobs, but state control over university places, pensions, and the quality of life for soldiers, prisoners, and hospital patients is also important. The basic technique of patronage is to exchange jobs for votes. If people vote for the incumbent, they either receive a job, or keep the one they have. This has been a widespread phenomenon worldwide.
In order for patronage to work at the individual level, it is necessary for those in power to know how each individual employee votes, or at least to create the impression that they do. This should not be possible in a system where ballots are supposed to be secret. To individuals who are concerned about losing their jobs, however, absolute certainty that one's vote is known is not required to influence behavior. Some amount of doubt that the ballot is secret may be all that is needed to influence many votes.
Patronage is most powerful in state institutions: the army, hospitals, and ] prisons. In the army, in the 2002 parliamentary elections, soldiers in some units simply were not allowed to vote secretly: officers checked their ballots before they were deposited. Similarly, in some prisons, inmates were [201] required to place their ballots in the boxes in such a way that prison officials could observe the voting. Presumably, prisoners who did not vote as instructed would be mistreated. Similar behavior was observed in hospitals.26
For the vast majority of state employees, or those, such as students, who depend on state services, more indirect means are used to gather votes. Instead of issuing threats and determining votes at the individual level, the tactic is carried out at the precinct level. Because of the small size of precincts, many are dominated by a single institution, such as a factory, university, hospital, or school. It is therefore possible to estimate from the precinct-level returns how people in large institutions voted. Retribution can then be carried out at the group level. In one example reported to me by a voter, children at a school in Dnipropetrovsk Oblast were sent home to tell their parents that their teacher would lose her job if the parents voted against the government in the 2000 constitutional referendum. Because school populations are regionally defined, it is easy to see how the parents in a particular school voted. Those who did not vote as they were told would not be punished individually; the school to which they sent their children would be punished.
This ability to monitor voting and to punish at the level of precincts and their dominant government institutions had a particularly powerful effect in the single-member districts in parliamentary elections.27 In a closely contested district, the ability to decisively manipulate one or two precincts out of the whole district can control the outcome and change a seat in the parliament without ever showing anything abnormal in the district-level votes that are so widely reported. All an observer would see at the district level is a close race, of perhaps 51 percent to 49 percent. One particularly clear case in 2002 occurred in District 108, where the United Ukraine candidate won by 1,695 votes. In three precincts within that district, each of which consisted of a prison, there was a 100 percent vote for the United Ukraine candidate, totaling 4,341 votes.28
It is not coincidental, therefore, that United Ukraine performed better in the SMD portion of the 2002 parliamentary elections than in the PR portion: in the PR portion, votes collected in this way are aggregated at the national level and have a proportionate effect on results. At the district level, however, this kind of vote influence has highly disproportionate effects. This, in turn, explains why Kuchma repeatedly vetoed changes in the 2002 parliamentary election law that would have reduced the number of seats selected in single-member districts. The results were significant, because even a small shift in the distribution of seats could tip control of parliament. With the shift to a full PR system, this road to vote manipulation will become much less powerful. [202]
Equally important to the use of patronage is the "machine" aspect of it, the way in which it is systematically organized so that voting in local precincts can be controlled from the top of the executive branch. Such control is facilitated by the organizational structure of the Ukrainian state, which is organized on a unitary (rather than federal) basis, and is hierarchically arranged, just as was the system of Soviets. The executive branch in Kyiv controls all of the ministries, as well as the armed forces. It also appoints the heads of the oblast administrations, who in turn appoint lower level officials, and so on.
In order to collect votes, therefore, all that the central authorities have to do is assign each minister or regional head a quota of votes to deliver. They then leave that individual to figure out how to provide them. That person then issues quotas to those at the next level down, and so on:
The system of influence on the electorate is very simple—the highest executive power gives directives to those below as to how many votes they should ensure. You can't give less, otherwise you'll have to face the consequences. Then, it's just a technical side of the affair—the meeting of local authorities, then the meeting of the authorities with their staff, then necessary explanations. In general, these questions are not the problem of the state authorities, who simply need the results.29How many votes can the executive branch garner this way? It is hard to determine for certain, for two reasons. First, obtaining exact figures concerning the number of government employees is difficult. Second, we cannot assume that 100 percent efficiency is possible.30 It likely varies across category, with those most dependent or vulnerable most likely to vote for the authorities. That lack of precision should not obscure a more important point: the number of votes subject to patronage is enormous compared with what would be necessary to fight a reasonably closely contested election. An estimate of the number of votes subject to government control through patronage is presented in Table 9.1.
This list does not include hospital patients, policemen, or firemen, for which statistics are not available. When this total is compared with the roughly 29 million votes cast in the "third" round of the 2004 presidential election, we can see that over 8 percent of the vote is subject to direct manipulation through patronage mechanisms.
Following the first round of the 1999 presidential elections, Ukraine's ambassador to the United States, Anton Buteyko, was dismissed because a plurality of the votes collected at the embassy were for Yevhen Marchuk rather than Kuchma.31 Similarly, two oblast heads, who were not as effective [203] in bringing in the vote as Kuchma had hoped, were dismissed. Kuchma's approach to the problem was voiced during the 1998 parliamentary elections: "Those who do not pull the carriage—we should thank them and look for new people."32 His ally at that time, Anatoliy Matvienko of the People's Democratic Party, lamented that 60 percent of the bureaucracy was "uncontrolled" and he advocated "partizing" the bureaucracy.33
Table 9.1
Number of People Subject to Direct Voting Pressure from the State Teachers 546,600a Armed forces 304,000b Medical personnel 224,000c Prison population 218,800d Central ministries 226,985e Municipal employees 77,442e Tax administration 44,820e Customs administration 16,438e Interior troops (police) 800,000f Total 2,459,085 Notes:
a Ukrainian Ministry of Education and Science, www.education.gov.ua. Figure is for 2001.
b United Nations Development Programme, http://hdr.undp.org/reports/global/2002/en/ indicator/ctyJLUKR.html. Figure is for 2000.
c Ukrainian Statistical Committee, www.ukrstat.gov.ua/. Figure is for 2002.
d Ombudsman of Ukraine, www.ombudsman.kiev.ua. Figure is for 2000. A similar figure (220,000) is reported by the U.S. State Department, "Country Reports on Human Rights Practices, Ukraine," March 31, 2003, 7.
e Ukrainian Statistical Committee, personal communication, July 2003. Figure is for 2003.
f Taras Kuzio, "The Organization of Ukraine's Forces," Jane's Intelligence Review, June 1, 1996, 254.
Voting Fraud
Outright voting fraud was less widely used in Ukraine than other tactics until the 2004 presidential elections, when it became widespread.34 In Ukraine it is relatively difficult to simply falsify election returns because the provisions for giving opposition candidates access to monitoring polling stations and vote counting are relatively stringent and are generally enforced. Therefore, fraud is carried on through multiple voting and other similar schemes. There were reports in 2002 of voters, especially soldiers, being bussed from one district to another in order to vote en masse.35 In districts with close races, [204] this could easily tip the balance. In the same election, a large number of unsecured ballots were discovered in District 99 in Kirovohrad Oblast, indicating an organized scheme for large-scale fraud. The OSCE concluded that "[t]he printing of ballots was not sufficiently transparent. No official documents were made available on the process of printing, storage, transfer and delivery of the ballots."36 More broadly, the OSCE reported that almost 12 percent of polling stations received at least 10 percent more ballots than there were registered voters in their precincts, in contravention of rules stating that no more than 3 percent extra ballots can be issued. In over 4 percent of precincts, there were at least 25 percent more ballots than registered voters.37 A large number of surplus ballots obviously facilitates fraud.
There were other cases of outright voting fraud prior to 2004, most notably in the 2000 referendum. Some of the reported results were so lopsided that they lacked credibility, and indeed were reminiscent of votes either in the Soviet Union or in present-day Turkmenistan. Zakarpatskia Oblast in western Ukraine reported 97.93 percent voter turnout, and "yes" votes on all four questions in the 95 percent range.38 Kuchma vetoed a law that would strengthen enforcement of election regulations.39 In the 1999 presidential elections and again in 2004, therefore, there was considerable controversy over the staffing of electoral commissions.40 There were also substantial allegations of fraud, and in fact Kuchma's returns exceeded those predicted by exit polling.41
In 2004, of course, all of these problems vastly increased. Elaborating the wide variety of schemes influencing voters, implementing fraud, and then falsifying the returns would require a lengthy separate study.42 However, despite that extensive manipulation, the tactics failed. This requires an explanation, which will be provided at the end of this chapter.
Controlling of the Judiciary
The Ukrainian legal system provides little protection against the tactics of power politics. In a "rule of law" society, many of the abuses of power described above would likely be prevented by appeal to the courts. For example, an order to close a newspaper due to some tax infraction would be delayed by a court until the case could be heard, rather than being implemented immediately. Moreover, if such a case were baseless or politically motivated, it would probably be thrown out. In Ukraine, the judiciary provides very few barriers to executive efforts to use "administrative resources," and provides very little recourse to those who suffer them.
The sources of these deficiencies are debated, with some explanations focusing on institutional factors, such as the lack of institutional separation [205] of the judiciary from the executive branch, while others cite normative factors, including the lack of a tradition or a strong norm of judicial independence. Whatever the causes, the fact of the executive branch's considerable influence over the judiciary is not in doubt. This section explores some of the institutional sources for that influence, as well as the manifestations.
In the Soviet system, in which government was not divided into branches, there was no notion of a distinct judicial branch. The idea that the courts exist in part to check abuse of power by the government is therefore foreign to post-Soviet Ukraine, and while there have been some signs of change, it is occurring slowly at best. Both institutionally and politically, Soviet courts were expected to help the government (and party) achieve their goals, not to interfere with them. As emphasized in Chapter Four, the evolutionary change from Soviet to post-Soviet rule has meant that no fundamental break has been made. While the 1996 constitution states the intention of an independent judiciary, little of the organization and legislation concerning the judiciary, not to mention the funding, make this a reality in practice.
Under Kuchma, Ukraine's courts were not only pro-government in an institutional sense, but they tended to be pro-Kuchma in a partisan sense. It seems, therefore, that more than just a lack of independence was at work; rather, the courts actively participated in the execution of electoral authoritarianism. While they were not at the center of its practice on a daily basis, they played a crucial role by lending legal legitimacy to many of the actions ensuring that politics were skewed in the executive's favor.
In contrast to many countries, the executive branch in Ukraine has almost sole control over appointments to and dismissals from the judiciary. Some appointments are made within the judiciary itself, but the legislative branch has no influence other than the right to appoint six of the eighteen judges on the Constitutional Court. In addition to being responsible for creating courts, the president is responsible for determining the number of judges in them, and naming administrators of courts, who have considerable power over personnel decisions.43
The Constitution provides for an independent judiciary; however, in practice the judiciary was subject to considerable political interference from the executive branch and also suffered from corruption and inefficiency. The courts were funded through the Ministry of Justice, which controlled the organizational support of the courts, including staffing matters, training for judges, logistics and procurement, and statistical and information support.44In essence, then, the judiciary is not an independent branch, but rather an appendage of the Ministry of Justice, which, under Kuchma, was tightly [206] controlled by the president. As a result, the old Soviet practice of telephone calls from political leaders to judges telling them how to rule on cases continued.
A few examples illustrate the politicized nature of the judiciary (this discussion leaves out the related problem of corruption in the courts). In July 2001, Ihor Aleksandrov, director of a television station in Donetsk, was murdered, presumably for his reports on corruption in the local administration. The police charged Yuri Verediuk, a homeless person, with the murder; he was alleged to have confessed, and was convicted. However, the Donetsk Oblast Court of Appeals found the conviction wanting, and overturned it, warning that Verediuk's life could be at risk. He died shortly thereafter. The Supreme Court overturned the Appeals Court's dismissal of the conviction, and sent the case back to the Procuracy for a new investigation. That the Court of Appeals overturned the original conviction indicates that, at least in some cases, judges were willing to act independently when something appeared rotten. But even in those cases, they can be overruled by higher-level judges that are more loyal to the authorities.
In 2001, politicization of the courts was demonstrated in the Kuchma administration's efforts to have opposition leader Yulia Tymoshenko imprisoned. After Tymoshenko was arrested, a Kyiv district court judge, Mykola Znayemko, ordered her released from custody pending trial. He further infuriated Kuchma by giving the wife and mother of Heorhiy Gongadze the status of "victims of crime." Kuchma simply dismissed him, citing inefficiency in forwarding case files.45 In late 2002, after the U.S. government found the recordings made in Kuchma's office to be authentic, a Kyiv judge opened a criminal investigation against Kuchma, but it was quickly quashed by the Supreme Court. The Supreme Judicial Council subsequently recommended the dismissal of the investigating judge.46
How are judges controlled? First, even the most important judges in the country, those of the Constitutional Court, do not serve life terms. Instead, they serve nine-year terms. Even those who are not appointed by the president have powerful incentives to go along with his wishes, because if they wish to get good jobs after leaving the court, they will almost certainly require the cooperation of the executive branch, where almost all such appointments lie. The poor pay of judges also makes them subject to all kinds of blandishments, from outright bribes to better apartments. Because most judgeships are controlled by the executive (and most judges can be dismissed by the president or someone appointed by him) there is little de facto basis for judicial independence.
A related problem is that judicial rulings that go against the wishes of the executive are simply not carried out. While courts can issue rulings, these [207] must be enforced by the executive branch (the Ministry of Justice). In liberal democracies there is both a normative commitment to enforcing judicial rulings, and a fear that further action will be brought against officials who refuse to enforce such rulings. This does not occur uniformly in Ukraine, especially when political interests are at stake.47 Similarly, on several occasions the prosecutor general has dismissed requests from opposition parties to investigate wrongdoing by public officials.
The Limits of Administrative Resources
This analysis of the resources available to the executive branch in Ukraine and the tactics used to convert those resources into legitimate authority confirms that the Ukrainian president had the potential to decisively sway key parts of the democratic process. The result is that what is designed on paper as a finely balanced and fair set of laws and procedures became fundamentally unbalanced and unfair. Leonid Kuchma augmented the resources available to the executive, and honed the techniques for applying them. Many of these same resources will be available to Kuchma's successors, though they will be divided between the prime minister and the president.
While our primary conclusion based on the data presented in this chapter focuses on the power available to the president, the second conclusion must focus on the limits to that power. Kuchma's power over elections was significant, but not total. His ability to control a certain percentage of the vote meant that any close race would go in favor of the president. This is what we saw in the 2002 parliamentary elections, when United Ukraine made up in individual constituencies what it lost in the PR portion of the ballot. However, while the tactics used to win votes could reliably shift close elections in Kuchma's favor, it is much more difficult to use such methods to overcome a very large deficit in popular sentiment. This is the lesson of the PR portion of the 2002 parliamentary elections, where despite the massive advantages of funding, press coverage, and vote manipulation in favor of United Ukraine and the SDPU(o), those parties finished well behind the opposition Our Ukraine and Communist blocs. In that respect, the 2002 parliamentary elections demonstrated the vulnerabilities that brought down Kuchma's group in 2004.
The Failure of Power Politics in the 2004 Presidential Elections
Given all the power accumulated in the executive branch, how did Kuchma fail to install his chosen successor, Viktor Yanukovych, in 2004?48 This [208] section provides a brief explanation, focusing on four factors. First, by picking an extremely unpopular candidate, the Kuchma team went beyond the limits of what could be achieved using previous tactics. Second, the opposition became much more united than it had been during previous confrontations. Third, Ukrainian civil society, assumed by many to be nonexistent, asserted itself in favor of democracy. Fourth and perhaps most crucial, key elements of the elite, including some on whom Kuchma and Yanukovych were depending, defected from the "party of power," facilitating the protests that came to be known as the Orange Revolution. Thus, Kuchma failed not because he was constrained by institutions, but because, in the end, he was confronted by superior power.
The Unpopularity of Yanukovych
Kuchma's strategy relied on skewing vote counts, but still required collecting enough votes to win. This became even more difficult with the nomination of Viktor Yanukovych as the candidate to replace Kuchma. The Kuchma administration was widely perceived in society to be corrupt, and was therefore very unpopular by 2004. The more specific problem was the candidate selected to represent Kuchma's group in the election, Viktor Yanukovych. Yanukovych was the sitting prime minister and former governor of Donetsk Oblast in eastern Ukraine. He managed to alienate both elites and masses. Many elites mistrusted him because he and the "Donetsk clan" from which he came appeared to want to seize as much as they could get their hands on, rather than splitting the spoils with others.
Many citizens loathed him because they viewed him as criminal and authoritarian. It was widely known that Yanukovych had two criminal convictions from the 1970s, and he occasionally used rather crude prison slang in public speeches. Many believed that electing him would move the country much closer to full authoritarianism. But many, especially in Ukraine's populous east, found Yushchenko equally unacceptable. Many observers of Ukrainian politics agree that, had a different candidate been selected (such as National Bank chairman Serhiy Tyhypko), he could have fairly and legitimately defeated Viktor Yushchenko.
It is therefore a mystery why Kuchma chose Yanukovych as the heir apparent. One factor may have been the power of the "Donetsk clan," which had succeeded more than any other regional clan in gathering votes for the pro-presidential United Ukraine bloc in 2002. It also appears that Kuchma's team believed that popularity could be manufactured through their control of the press and that voting fraud would do the rest. Neither Yanukovych nor the main strategists of his team understood that the system was still partly [209] democratic. Instead, they behaved as if they were already in an authoritarian system in which people would simply vote for whom they were told to vote.
The Unification of the Opposition
Until 2004 the various Ukrainian opposition groups (right, center, and left) were never quite able to unite against Kuchma (as discussed in Chapter Five). In the run-up to the 2004 election, this changed decisively. The rightist forces of Yushchenko allied with the socialists of Moroz and the populist leftists of Tymoshenko behind a single shared goal: to get rid of Kuchma's group. This represented a drastic change from the situation even two years earlier. As recently as 2002, Yushchenko had entertained the idea of taking Our Ukraine into a coalition with Kuchma's United Ukraine to form a parliamentary majority. In 2004, only the Communist Party of Ukraine, among major opposition to Kuchma, was unwilling to unite with the others.
Because Yushchenko was so obviously the best choice to lead the anti-Kuchma forces into the election, other potential candidates, including Tymoshenko and Moroz, supported him rather than running against him. The result was an alliance that was cemented in early 2004 and remained intact through the election. This contrasted with 1999, when the early anti-Kuchma coalition fragmented. The 2004 coalition was not without strain, in particular, because many among Yushchenko's core supporters were very leery of an alliance with Tymoshenko. But in contrast to past episodes, objections were put aside.
The results were clear to see. Yushchenko's alliance had a well-organized effort to contest the election at three distinct stages. First, there was a campaign to win over voters and turn them out on election day. The range of parties involved in the alliance meant that different parties could work with segments of voters and regions where they were most able to succeed. Had either Moroz or Tymoshenko sought the presidency and deprived Yushchenko of their organizational support, he may well have lost the election.
Second, the opposition jointly prepared a massive effort to monitor the election vote tabulation. This effort would make fraud harder to practice and easier to discover, and led to much of the evidence that convinced the Supreme Court to overturn the election result.
Third, the opposition prepared well in advance to put protestors into the streets in the event the election was stolen. The protests were not spontaneous. Because the intention to steal the election was so obvious, the opposition had plenty of time to prepare. Most remarkable about this effort was the ability of a wide range of groups to delegate tasks among themselves and coordinate their implementation effectively. [210]
The Emergence of Civil Society
Prior to November 2004, most people within and outside Ukraine believed that Ukraine had very little "civil society." Clearly, Kuchma and Yanukovych believed that they could steal the election and that no one would care very much. Coverage of the campaign on Ukraine's television stations was so thoroughly one-sided that even unsophisticated voters were able to see that it was manipulated. Apparently, the goal was to create a sense of inevitability that would promote acquiescence.
This election demonstrated not only that large numbers of Ukrainians were willing to become politically active, but also that they had considerable organizational capacity.49 Organizing, training, and deploying, first, election monitors, and later, protestors, required considerable logistical capacity. There was also an impressive capability for spontaneous action: only a week before the first round, the idea of silently showing one's support for Yushchenko by wearing orange began to spread, and by the second round (three weeks later), orange ribbons, scarves, and banners were ubiquitous, showing that opposition to Yanukovych was widespread. Kuchma's control over the media could not do anything to counter the message sent by all this orange. Once organized forces got the protests started, hundreds of thousands of citizens quickly joined in.
Division Among the Elites
The role of the elites in the success of the Orange Revolution has been underemphasized, given the stirring images of citizens in the streets of Kyiv.50 However, from the very beginning of the crisis, key segments of the elite eased the job of protest organizers, both by what they did and what they did not do. First, there were no efforts to block access to central Kyiv. This contrasts substantially with successful efforts to foil protests during the "Ukraine Without Kuchma" campaign in 2001. In that case, state authorities used several means to squelch these protests, while almost always avoiding direct coercive repression. These means included blocking access to central Kyiv, and into Kyiv from other parts of the country. Additional means not used then, but presumably available in 2004, would have included shutting down the cell phone networks and the Internet, on which the protestors relied so heavily to coordinate their activity. Just weeks before the protests, the ability to shut off central Kyiv was demonstrated clearly during the parade celebrating the sixtieth anniversary of the liberation of Ukraine in World War II. That the level of repression declined to nearly zero in 2004 indicates that decisions were made to allow the protests to grow. [211]
Second, unmistakable signals were sent to potential protestors that the protests would be allowed, that they would not be repressed, and that they would succeed. The most important such signal may have been the announcement, immediately after the second round of the elections, that the Kyiv City Council rejected the legitimacy of the announced results. Kyiv's mayor, Oleksandr Omelchenko, had appeared previously to support Yanukovych. His defection sent clear signals that some of the elite would support protests, and more important, that Kyiv would be "open for protest." Later, high-ranking figures in the Security Service of Ukraine (SBU) appeared on the stage at the Maidan Nezalezhnosti (Independence Square), encouraging the protestors.
As the crisis proceeded, the elite did not merely divide; rather, most of it defected to Yushchenko, so that Yanukovych was isolated. On November 29, Yanukovych's campaign manager, Serhiy Tyhypko resigned. Moreover, he admitted that large-scale election fraud had taken place.51 Like many others, Tyhypko was trying to cut his losses in a post-Kuchma Ukraine. On the same day, President Kuchma himself announced support for a rerun of the second round of the election, destroying what remained of Yanukovych's position.52
The positions of the various armed forces (the military, the Security Service of Ukraine, and the Interior Ministry) were more ambiguous, but generally served to encourage protests as well. Rumors of an imminent crackdown arose repeatedly, but never materialized. The army was neutral, but this neutrality clearly played into the hands of the opposition, as it seemed to guarantee that the army would not suppress the demonstrations. Most significantly, the SBU seemed to encourage the protestors, and to ensure them that they would be safe.
The Limits of "Political Technology"
In both the Russian and Ukrainian presidential elections, much attention has focused on what has been labeled "political technology," and to the "political technologists" who implement such methods.53 In many respects, this technology is not new. Controlling media, extorting financial support from businesspeople, using the government payroll to gain votes, and controlling the counting of votes are all time-honored methods of machine politics.
The lesson of this election, for both political scientists and politicians in the region, is that such tactics are neither omnipotent nor foolproof. The Ukrainian "party of power," along with some outside analysts, tended to overestimate the effectiveness of machine politics and "political technology." The tools of machine politics can no doubt influence votes, though the exact influence is unclear and will obviously vary from case to case. In a close election, which will tip by a small percentage of the votes, such methods can be [212] decisive if they are available much more extensively to one side than to the other, as is the case throughout the former Soviet Union, where control of the state apparatus conveys huge advantages.
However, such tactics cannot by themselves create a winner out of just anyone. This seems to have been the misconception driving the Ukrainian party of power. They apparently assumed that their huge advantages in "political technology" would automatically deliver them the election. They may have been encouraged in this belief by the ease of Vladimir Putin's victory in Russia in 2003, where such tactics were employed extensively. The crucial difference, which appears to have gone unnoticed, is that Putin had immense personal popularity and almost certainly would have won the election even if it had been fair. In other words, "political technology," while widely applied in Russia, was probably irrelevant to the result of the election.
The problem for Yanukovych was that he had to make up a much bigger gap than machine politics and political technology could overcome. Had the party of power selected a more popular candidate, they could likely have swung the 5-10 percent of the vote needed to change the outcome of the election without resorting to outright and obvious fraud and intimidation. Picking such an unpopular candidate made the gap too big to cover, such that they had to move from "machine politics" to outright falsification, indicating a move toward full authoritarianism.
When one is required to actually falsify the voting, it becomes easier to undermine the legitimacy of the results. Both alternate vote counts and exit polls can provide evidence that the election was stolen. The widespread perception among Ukrainians that the election was fixed was the result of an abundance of clear evidence to that effect. Without such evidence of fraud, it is unlikely that postelection events would have developed as they did.
The transparent role of Russia in supporting "political technologies" in Ukraine probably also backfired. In the opinion of Russian analyst Sergei Karaganov:
We... had the right to prefer one of the candidates. But we made almost all of the imaginable mistakes. Our campaigning took the form of a brazen commercial operation, which was bound to irritate even Russia's supporters in Ukraine. Moreover, political specialists managed to involve in their games even the top Russia leaders, who took a stand and hence weakened their long-term ability to influence the situation in Ukraine.54In sum, we need to recognize the limitations of "political technologies." That they can tip a close election is obvious. They can skew a certain percentage of the vote without leaving enough clear evidence to undermine the legitimacy of the elections. Kuchma, still fairly popular, was able to use [213] "political technologies" in this way in 1999. But they cannot make an unpopular candidate popular, and they are not a replacement for political skill, which was rarely discussed in the Ukrainian election, but was perhaps the deciding factor. The ineptitude with which Kuchma and Yanukovych exploited their considerable advantages is remarkable.
Machine Politics After the Orange Revolution
If Kuchma was able to consolidate his power and maintain it through what we have called "machine politics" and "political technologies," what potential is there to do this in post-Kuchma Ukraine? We can identify two concrete changes that will reduce the president's ability to use these tactics in the future. At the same time, we must emphasize that considerable potential for these tactics remains.
Division of Powers
The constitutional changes adopted in 2004 divide control over the executive branch between the prime minister and the president. This will make it difficult for either of them to amass the sort of power that Kuchma had. The prime minister, through his/her power to appoint most ministers, will have much of the patronage power and power of selective enforcement of regulations that Kuchma had. However, the president will retain control of the so-called power ministries, and therefore will retain some ability to use selective law enforcement. The president and prime minister will thus be able to check each other. The bad news (as already discussed in Chapter Six) is that this is a recipe for conflict and stalemate. The good news is that this division of power impedes renewed authoritarianism. We may see a situation, sometime in the future, when the prime minister uses one set of bureaucracies to pursue political advantage against a president who is using another set of bureaucracies for the same purpose.
Freedom of Media
A central strategy of Kuchma (and of other authoritarian leaders in the former Soviet Union) was to control the media. A major accomplishment of the Orange Revolution was the rejection by the media of governmental control. Once again, Ukraine has a range of privately owned media, representing various political interests. It will be very hard for any aspiring autocrat to reassemble the control over the media that Kuchma had. Ukrainian society and elites are likely to be more vigilant in the future, having seen how this [214] process works. A good example of changed attitudes was visible in mid-2005, when Ukrainian media focused attention on the expensive lifestyle of Yushchenko's son Andriy.55 When Viktor Yushchenko reacted angrily to such reports, he was widely criticized for attacking the media. Moreover, with media control having become much more decentralized since late 2004, it is not clear that anyone will be able to put it back together again.
The Remaining Potential for Machine Politics
Despite the changes for the better, much potential remains for "machine politics" and "political technology." The absence of an effective civil service system means that using government jobs and resources to coerce voters can continue. In the fall of 2005, there were already credible accusations that such pressure was being applied in the run-up to the 2006 parliamentary elections.56 Similarly, the fact that regional governors are still appointed by the president rather than elected concentrates nationwide patronage power in the hands of the president, instead of dividing it among governors. If "administrative resources" played an important role in determining the 2004 presidential vote, it is not encouraging that the 2006 vote turned out almost identically.
Moreover, while control over the bureaucracies is divided, there is no barrier to the continued use of selective law enforcement and regulation for political purposes. Less than a year after the Orange Revolution, Yushchenko appeared to be using his power to refrain from prosecuting those with whom he had made political deals, while Prime Minister Tymoshenko and several others among Yushchenko's team were accused of using their control of the government to pursue various commercial interests.
In sum, we should not expect that the Orange Revolution will change the rough-and-tumble nature of Ukrainian politics, or that it will suddenly usher in honesty in government. "Power politics" will continue to trump institutional design in many cases. However, as theorists of international relations stress, power politics is very different when power is balanced among competing forces rather than concentrated in one actor's hands. Thus, the most significant effect of the Orange Revolution is that it has fragmented de facto political power in the country, both within government institutions and within society. While the tactics of machine politics will continue to be used, they are much less likely to be controlled by a single political force. This will make the concentration of power obtained by Kuchma much harder to achieve. This is not a recipe for clean politics, but it might be a recipe for less authoritarianism.
Notes 1. Some of the research in this chapter was originally put forward in Paul D'Anieri, "Machine Politics in Ukraine," paper presented at the annual convention of the American Association for the Advancement of Slavic Studies, Toronto, November 21,2003, and subsequently, in abbreviated form, in D' Anieri, 'The Last Hurrah: The 2004 Ukrainian Presidential Elections and the Limits of Machine Politics," Communist and Post-Communist Societies 38 (2005): 231^9.
2. Philip G. Roeder, "Varieties of Post-Soviet Authoritarian Regimes," Post-Soviet Affairs 10 (1994): 65-69.
3. See Bohdan Harasymiw, "Policing, Democratization and Political Leadership in Postcommunist Ukraine," Canadian Journal of Political Science 36, no. 2 (June 2003): 327-28.
4. Simon Johnson, Daniel Kaufmann, John McMillan, and Christopher Woodruff, "Why Do Firms Hide? Bribes and Unofficial Activity After Communism," EBRD (European Bank for Reconstruction and Development) Working Paper, no. 42 (October 1999).
5. Johnson et al., "Why Do Firms Hide," 2.
6. "New Tape Translation of Kuchma Allegedly Ordering Falsification of Presidential Election Returns," Kyiv Post, February 13, 2001, p. 1.
7. Blue Ribbon Commission for Ukraine, "Proposals for the President: A New Wave of Reform," 2005, 51; available at www.carnegieendowment.org/files/ BRCReportl21204Eng2.pdf.
8. Human Rights Watch, "Negotiating the News: Informal Censorship of Ukrainian Television," March 2003, http://www.hrw.org/reports/2003/ukraine0303/ Ukraine0303.pdf, 9. Accessed June 30,2005.
9. Organization for Security and Co-operation in Europe/Office for Democratic Institutions and Human Rights (OSCE/ODIHR), "Final Report, Ukraine Parliamentary Elections," March 31, 2002,15; available at www.osce.org/odihr/documents/re-ports/election_reports/ua/ua_pe_march2002_efr.php.
10. Human Rights Watch, "Negotiating the News," 11.
11. Den', September 21, 2000, 3.
12. The $250,000 figure is cited in "Administrativnyi resurs v deistvii: spikerom Verkhovnoi Rady izbran stavlennik Kuchmy," Pravda.ru, May 29,2002; available at http://pravda.ru/kuchma/2002/05/29/41906.html. Accessed June 15, 2004. The $500,000 figure was asserted by Our Ukraine deputy Yuriy Orobets'. See '"Nasha Urkaina' proty 'Mihratsii' deputativ," Courier.com.ua, December 12, 2002, www.courier.com.ua. Accessed December 20, 2002.
13. "Administrativnyi resurs v deistvii."
14. Segodnya, March 27, 2002,1.
15. Ibid.
16. In a case laden with intrigue, some have speculated that after Kuchma was recorded making remarks about Gongadze, those who made the tapes and were seeking to embarrass Kuchma had Gongadze killed in order to implicate Kuchma and drive him from office. This is implausible, but not impossible, and it is certainly not the most implausible theory concerning the release of the tapes, the origins of which have never been satisfactorily accounted for.
17. Human Rights Watch, "Negotiating the News," 10.
18. Interview with a director of a Department of Information Policy, Kyiv, May 5, 2003. Tellingly, the official asked not to be identified by name, even though his remarks were in no way critical of the Kuchma government.
19. The use of temniki is analyzed at length in Human Rights Watch, "Negotiating the News." This report is quite thorough and contains several examples of temniki in an appendix.
20. OSCE/ODIHR, "Final Report, Ukraine Parliamentary Elections," 15.
21. Ibid., 15-16.
22. Human Rights Watch, "Negotiating the News," 17-18.
23. OSCE/ODIHR, "Final Report, Ukraine Parliamentary Elections," 14.
24. Human Rights Watch, "Negotiating the News," 9.
25. OSCE/ODIHR, "Final Report, Ukraine Parliamentary Elections," 3.
26.1 am grateful to Taras Kuzio and Erik Herron for sharing their experiences as election monitors.
27. This argument is developed and supported with considerable statistical analysis in Erik S. Herron and Paul E. Johnson, "Fraud Before the 'Revolution': Special Precincts in Ukraine's 2002 Parliamentary Election," in The 2004 Presidential Poll in Ukraine: A Case Study in Local and International Election Observation, ed. Ingmar Bredies, Andreas Umland, and Valentin Yakushik (Stuttgart: Ibidem-Verlag, forthcoming).
28. These figures are from Herron and Johnson, '"Fraud Before the 'Revolution'"
29. Artem Storozhenko, "From Old to New Administrative Resource. Only with Peculiarities of 2002," PART.ORG.UA-Political Network Edition, November 20,2002; available at http://part.org.ua/eng/print.php?art=29718943, Accessed January 14,2003. See also the interview with Volodymyr Lupatsiy and Oleksandr Chernenko, "Deja Vue [sic] or We Have Already Seen This," PART.ORG.UA-Political Network Edition, November 23,2002; available at http://part.org.ua/eng/print.php?art=29978792. Accessed January 14, 2003.
30. The problem of enforcing patronage is discussed in Vassyl Yurchyshyn, "Investment Future of Regions Will Depend on Administrative Resource's Functioning," PART.ORG.UA-Political Network Edition, October 12, 2001; available at http:// part.org.ua/eng/print.php?art=31447215; and Ukrainian Center for Independent Political Research (UCIPR), "Political Season's Blocking Sublimation," Research Update 7, no. 30/231 (July 23,2001): 2-3.
31. Votes at the embassy include not only those by embassy staff, but by Ukrainians resident in the United States who voted at the embassy. It means that more than a few votes are at stake, but still not enough to sway the election. It also means that Buteyko was punished not for the direct disloyalty of him or his staff, but rather for the general failure to collect votes as dictated by the "machine."
32. Ukraina moloda, April 11,1998, quoted in UCIPR, "Political Season's Blocking Sublimation," 2.
33. Ukraina Moloda, April 3,1998, quoted in UCIPR, "Political Season's Blocking Sublimation," 2. By "partizing" the bureaucracy, Matvienko meant unifying the bureaucracy with the party so that the bureaucracy could do the work of the party.
34. Fraud in the 2004 election is covered in extensive detail in Andrew Wilson, Ukraine's Orange Revolution (New Haven, CT: Yale University Press, 2005).
35. OSCE/ODIHR, "Final Report, Ukraine Parliamentary Elections," 18.
36. Ibid., 9.
37. Ibid., 19.
38. Ukraine Today, April 17,2000.
39. OSCE/ODIHR, "Final Report," 8.
40. See Yulia Tishchenko, Vybory-99: Yak i koho my obyraly (Kyiv: UNDTsP, 2000), especially ch. 9,10, and 16.
41. See Steven Wagner and Elehie Skoczylas, "The 1999 Ukrainian Presidential Vote: A QEV Analytics Exit Poll Report," Figures 1 and 2, http://qev.com/ reports.international.ukraine99exitpollgraphs.htm., accessed June 20,2000.
42. See Wilson, Ukraine's Orange Revolution. Fraud and misconduct in 2004 were catalogued in "Ukraine Presidential Election: 31 October, 21 October and 26 December 2004 OSCE/ODIHR Election Observation Mission Final Report," May 11,2005. For a series of reports of these various tactics, see the press releases of the Committee of Voters of Ukraine, www.cvu.org.ua/?menu=pres&po=election&topic_el= pres&lang=eng&date_end=&date_beg=&id=478, accessed March 20,2005.
43. 'Table of Some Provisions of the Law of Ukraine 'About the Judicial Organization,'" www.judges.org.ua/eng/sud-ukr.htm, accessed September 10,2005.
44. U.S. State Department, "Country Reports on Human Rights Practices, Ukraine," 8.
45. Ibid., 9.
46. Human Rights Watch, "Negotiating the News," 7-8.
47. U.S. State Department, "Country Reports on Human Rights Practices, Ukraine," 8.
48. This section is adapted from a lengthier analysis in Paul D'Anieri, "The Last Hurrah."
49. On the role of youth organizations in the Orange Revolution, see Taras Kuzio, "Civil Society, Youth and Societal Mobilization in Democratic Revolutions: Serbia, Georgia, and Ukraine." Communist and Post-Communist Studies 39, 3 (Forthcoming 2006).
50. The role of elites in the Orange Revolution is explored in more detail in Paul D'Anieri, "Explaining the Success and Failure of Post-Communist Revolutions," paper presented at the annual convention of the Association for the Study of Nationalities, Columbia University, New York, March 23,2006. In the popular media, the role of elites was stressed by C.J. Chivers, "How Top Spies in Ukraine Changed the Nation's Path," New York Times, January 17,2005,1. Chivers's view is critiqued by Taras Kuzio, "Did Ukraine's Security Services Really Prevent Bloodshed during the Orange Revolution?" Eurasia Daily Monitor, January 24, 2005, at http:// www.taraskuzio.net/elections2004/revolution_sbu.pdf, accessed July 10,2006.
51. Interfax, November 29,2004; BBC Monitoring International Reports, November 29, 2004.
52. Financial Times, November 30, 2004, 6.
53. See Andrew Wilson, Virtual Politics: Faking Democracy in the Post-Soviet World (New Haven, CT: Yale University Press, 2005).
54. Sergei Karaganov, "Lessons of the Ukrainian Crisis," RIA Novosti, November 25, 2004. http://en.rian.ru/analysis/20041125/39774197.html, accessed January 10, 2005.
55. Ukrayinska Pravda, July 19, 2005. http://www2.pravda.com.ua/archive_day/ 20050719, accessed July 26,2005.
56. This statement is based on interviews with Ukrainian government employees in Lawrence, Kansas, and in Kyiv in September and October 2005.