Lenin similarly ignored the CEC in choosing replacements for the commissars who had resigned from the cabinet: these he handpicked on November 8–11 after casual consultation with associates but without asking the CEC’s approval.
He still faced the critical issue of the legislative authority of the CEC, its right to approve or veto government decrees.
In the first two weeks of the new regime, Chairman Kamenev had managed to insulate the Sovnarkom from the CEC by convoking it on short notice and failing to provide it beforehand with an agenda. During this brief interlude, the Sovnarkom legislated without bothering to obtain the CEC’s approval. Indeed, government procedures at the time were so lax that some Bolsheviks who were not even members of the cabinet issued decrees on their own initiative without informing the Sovnarkom, let alone the Soviet Executive. Two such decrees brought about a constitutional crisis. The first was the Decree on the Press, issued on October 27, the initial day of new government. It bore the signature of Lenin, although it had been drafted by Lunacharskii, almost certainly with Lenin’s encouragement and approval.† This remarkable document asserted that the “counterrevolutionary press”—a term which it did not define, but which obviously applied to all papers that did not acknowledge the legitimacy of the October coup—was causing harm, for which reason “temporary and emergency measures had to be taken to stop the torrent of filth and slander.” Newspapers that agitated against the new authority were to be closed. “As soon as the new order has been firmly established,” the decree went on, “all administrative measures affecting the press will be lifted [and] the press will be granted full freedom …”
The country had grown accustomed since February 1917 to violence against newspapers and printing plants. First, the “reactionary” press was attacked and closed; later, in July, the same fate befell Bolshevik organs. Once in power, the Bolsheviks expanded and formalized such practices. On October 26, the Military-Revolutionary Committee carried out pogroms of the oppositional press. It closed the uncompromisingly anti-Bolshevik Nashe obschee delo and arrested Vladimir Burtsev, its editor. It also suppressed the Menshevik Den’ the Kadet Rech’ the right-wing Novoe vremia, and the right-of-center Birzhevye vedomosti. The printing plants of Den’ and Rech’ were confiscated and turned over to Bolshevik journalists.32 Most of the suppressed dailies promptly reappeared under different names.
The Decree on the Press went much further: if enforced, it would have eliminated in Russia the independent press whose origins went back to the reign of Catherine II. The outrage was universal. In Moscow, the Bolshevik controlled Military-Revolutionary Committee went so far as to overrule it, declaring on November 21 that the emergency was over and the press once again could enjoy full freedom of expression.33 In the CEC, the Bolshevik Iurii Larin denounced the decree and called for its revocation.34 On November 26, 1917, the Union of Writers issued a one-time newspaper, Gazeta-Protest, in which some of Russia’s leading writers expressed anger at this unprecedented attempt to stifle freedom of expression. Vladimir Korolenko wrote that as he read Lenin’s ukaz “blood rushed to his face from shame and indignation”:
Who, by what right, has deprived me, as reader and member of the [Poltava] community, of the opportunity to learn what is happening in the capital city during these tragic moments? And who presumes to prevent me, as a writer, of the opportunity to express freely to my fellow citizens my views on these events without the censor’s imprimatur?35
Anticipating that this and similar measures, especially those concerning the economy, would arouse strong opposition in the Congress of Soviets and the CEC, the Bolsheviks issued yet another law bearing on the question of relations between government and soviets. Called “Concerning the Procedure for the Ratification and Promulgation of Laws,” the decree claimed for the Sovnarkom the right to act in a legislative capacity: the CEC’s power was limited to ratifying or abrogating decrees after they had gone into effect. This document, which completely subverted the conditions under which the Congress of Soviets only a few days before had authorized the Bolsheviks to form a government, bore Lenin’s signature. But it is claimed in the recollections of Iurii Larin, a Menshevik who in September had gone over to Lenin and become his most influential economic adviser, that it was he who had drafted and issued it on his own authority without Lenin’s knowledge: Lenin is said to have learned of this law only when he read it in the official Gazette.36
The Larin-Lenin decree claimed to have validity only until the convocation of the Constituent Assembly. It declared that until then laws would be drafted and promulgated by the Provisional Government of Workers and Peasants (Sovnarkom). The Central Executive Committee retained the right to “suspend, change, or annul” such laws retroactively.* With this decree, the Bolsheviks claimed the right to legislate by the equivalent of Article 87 of the Fundamental Laws of 1906.
This simplified procedure, which rid the government of parliamentary “obstructionism,” would have warmed the heart of Goremykin and any other conservative bureaucrat of the old regime, but it was not what the socialists had expected of the “Soviet” Government. The CEC followed these developments with growing alarm; it protested the Sovnarkom’s infringement of its authority through uncontrolled “bossing” (khoziaistvovanie) and the promulgation of decrees in the CEC’s name but without its approval.37
The issue came to a head at a meeting of November 4 which decided the fate of “soviet democracy.” Lenin and Trotsky were invited to explain themselves, much as before the Revolution Imperial ministers had been subject to Duma “interpellations” about the legality of their actions. The Left SRs wanted to know why the government was repeatedly violating the will of the Second Congress of Soviets, which had made the government responsible to the Central Executive Committee. They insisted that the government cease ruling by decree.38
Lenin regarded this as “bourgeois formalism.” He had long believed that the Communist regime had to combine both legislative and executive powers.39 As was his wont when confronted with questions he could not or would not answer, he immediately went on the offensive, filling the air with countercharges. The Soviet Government could not be bound by “formalities.” Kerensky’s inactivity had proven fatal. Those who questioned his actions were “apologists of parliamentary obstructionism.” Bolshevik power rested on the “confidence of the broad masses.”40 None of this explained why he was violating the terms under which he had assumed office a mere week before. Trotsky gave a slightly more substantive response. The Soviet parliament (meaning the Congress of Soviets and its Central Executive Committee), unlike the “bourgeois” one, had no antagonistic classes and therefore no need for the “conventional parliamentary machinery.” The implication of the argument was that where there were no class differences there could be no differences of opinion: from which it followed that differences of opinion signified ipso facto “counterrevolution.” The government and the “masses,” Trotsky went on, were linked not by formal institutions and procedures but by a “vital and direct bond.” Anticipating Mussolini, who would use analogous arguments to justify fascist practices, he said: “It may be true that our decrees are not smooth … but the right of vital creativity transcends formal perfection.”41