Do You See What I See?

Once a shining example of post-communist success and European integration, Poland has become for many an illiberal problem child. Since the Law and Justice (PiS) party’s 2015 electoral victory, Poland has recorded the greatest drop of any country in the World Justice Project Rule-of-Law Index. It has fallen from eighteenth to sixty-forth in the World Press Freedom Index and from twenty-seventh to forty-ninth in the Cato Institute’s Human Freedom Index. Freedom House no longer considers it a consolidated democracy, while the European Union is withholding $42 billion in payments from an $857 billion Covid recovery fund. In October, the country’s constitutional court ruled that some EU laws conflict with the Polish constitution, escalating a long-standing dispute with Brussels. The court, which has close ties to PiS, has effectively placed Poland outside of the bloc’s legal system.

Shortly after coming to power, PiS seized control of Telewizja Polska (the public television broadcaster), purged its management, and vested in the Treasury minister the power to hire and fire broadcasting chiefs. Then it withdrew public-sector advertising from independent media and funneled it into state television and radio, which now serve as propaganda organs for its policies.

PiS also introduced changes to the judiciary. It packed the Constitutional Tribunal with party loyalists, purged the common courts of presidents and vice presidents and replaced them with the Justice minister’s candidates, and took over the National Council of the Judiciary through a new procedure that cut short the terms of former members. In addition, the party lowered the retirement ages of Supreme Court judges, forcing twenty-seven out of seventy-three judges either to step down or ask for the president’s approval to continue. It expanded the Supreme Court to 120 judges, and added new chambers filled with appointees of the PiS-subordinated National Council of the Judiciary—including a disciplinary chamber with powers to punish judges, which the European Court of Justice has ordered the Polish government to dissolve. (PiS has refused.)

More recently, the government has sought to “re-Polonize” foreign-owned media outlets. In August the lower house of Parliament passed a bill that would prohibit entities outside the European Economic Area from owning a majority stake in Polish media companies. Though the Polish government maintains that the legislation is meant to protect Poland from foreign propaganda, it is widely seen as targeting the country’s largest broadcaster, TVN, which frequently airs critical coverage of the government and whose owner is the U.S. media conglomerate Discovery, Inc. The Polish Senate, where the opposition has a narrow majority, rejected the bill. But the government has signaled it will try to reverse this result.

What is driving this effort to remake the Polish state? Much commentary portrays these developments as an inexplicable setback for a country once regarded as an exemplar of democratic transformation (or, more tendentiously, as proof of the alleged civilizational underdevelopment of “Eastern Europe”). Such explanations neglect the government’s professed reason for pursuing its agenda: The belief that what happened in 1989 was not a true revolution, and that the subsequent enrichment of former Communists and the failure to pass de-communization laws prevented Poland from becoming a truly democratic polity. Indeed, PiS has justified its overhaul of the judiciary on the grounds that communist-era judges were not dismissed after 1989.

It is true that Poland could have done more to confront its difficult past. Unlike the Czech Republic, for instance, which initially excluded former Communist Party leaders and secret police officers from senior government positions, Poland merely required high-ranking public officials to reveal their links to the Communist security services; only those who made false statements were penalized. Even a South Africa-style truth and reconciliation commission might have helped achieve symbolic closure, but Poland eschewed such measures. (Upon taking office, the country’s first democratically elected prime minister famously announced that his government would draw a “thick line” between the past and the present. Six years later, presidential candidate Aleksander Kwaśniewski ousted Lech Wałęsa by urging his fellow citizens to “choose the future.”) The lack of such closure, combined with the elite-driven nature of Poland’s negotiated transition, created a sense of historical injustice among segments of Polish society, fueling a belief in the illegitimacy of the new political system. In this respect, PiS’s executive aggrandizement is symptomatic of a larger dispute over who has the right to govern in Poland.

Still, this account overlooks nuances and contradictions, such as the intimate involvement of members of the Law and Justice party in the transition process. Both Lech and Jarosław Kaczyński, the party’s founders, participated in the Round Table Talks between the Solidarity movement and the Communist Party leadership. Jarosław even served as the main negotiator in the talks with representatives of the Peasant Party that led to its defection from the Polish United Workers’ Party, paving the way for the Solidarity movement to claim a majority in the elections of 1989.

And while the Supreme Court includes judges who were members of the Communist Party, such judges constitute a small minority. Moreover, the government’s elevation to the Constitutional Tribunal of people like Stanisław Piotrowicz—a state prosecutor who in the 1980s marshaled evidence against opposition activists—raises questions about the degree to which PiS advocates for transitional justice measures on principle, or for purposes of political expediency in its pursuit of power.

The government argues that the judiciary is an unaccountable clique rife with cronyism, while it has a democratic mandate to undertake sweeping reforms. True, the judicial system was far from perfect in its previous incarnation, and many Poles want it reformed. But there is a difference between having an established system about which there is broad consensus, and introducing a raft of changes that come together at every level of government to give the ruling party the ability to appoint members of councils and influence the courts.

The European Court of Justice has fined Poland a record-high one million euros per day for its deviations from European norms. This could galvanize support for PiS, which has framed the penalties as attacks on Polish sovereignty. But it could also hurt the party as voters see EU funds threatened.

Poland’s reforms have also put the United States in a difficult position. Support for democratic values must remain at the forefront of U.S. foreign policy, but talk of withdrawing U.S. forces from the country unless Warsaw reverses course makes no one safer. Instead, it risks raising historical parallels for Poland and fueling a sense of isolation and mistrust, all of which undermines America’s ability to impact the debate over democratic institutions. The Biden administration ought to make plain its concerns over the Polish government’s reforms, while continuing to cooperate on issues where both countries’ interests and values align, such as countering Putin’s aggression.

How to balance U.S. principles with the imperative to defend NATO’s eastern frontier will be a key question facing Washington in its relations with Poland. Greater senior-level bilateral engagement and a more expansive U.S.-Polish agenda on defense could serve as the basis for addressing concerns over democratic governance. Reassuring Poland and other allies in the east that the United States stands ready to stop Russian expansionism would be a good first step.

Chels Michta recently earned her doctorate from the University of Cambridge, where she wrote her dissertation on political realignments in post-communist Poland.