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Straying from the Herd

Straying from the Herd

When it comes to Poland and Hungary, the EU will have to determine how far it should go in deciding who can belong.

Dalibor Roháč

The European Union has an authoritarianism problem. The Hungarian Civic Alliance (Fidesz) and the Law and Justice party (PiS), since acceding to power in Hungary in 2010 and Poland in 2015, respectively, have attacked their countries’ courts, independent media, and civil society, all while fomenting EU-wide culture wars. Escalating the ongoing conflict with European institutions and Western European capitals, the two governments are now blocking the EU’s €1.8 trillion budget and the recovery package that responds to the economic fallout of the COVID-19 pandemic.

The root of the problem is simple: While the EU is extremely demanding of its prospective members, to the point that it seems unlikely the organization will see another enlargement in the coming decade, it lacks the tools to discipline its existing members. Moreover, because the bloc’s decision-making requires unanimity in many areas, it is all too easy for rogue states to hold the rest of the EU hostage.

It does not have to be this way. But to mount an effective response, the EU would have to be clear-eyed about the true nature of the Hungarian and Polish challenge. The issue is not that the two governments take pleasure in offending liberal and progressive sensibilities, but simply the entrenchment of their power up to a point where elections become meaningless. More importantly, hitting Fidesz and PiS where it hurts—namely, in their pocketbooks—would require breaking some of the EU’s most cherished taboos.

Shortly after its landslide victory in Hungary’s 2010 election, Fidesz, led by Prime Minister Viktor Orbán, adopted a new constitution, or Fundamental Law, drafted by a small group within the party and adopted on partisan lines. It limited the review of new laws by the Constitutional Court and facilitated the firing of the country’s most senior judges, including 20 percent of the judges of the Supreme Court and more than half of the presidents of all of the country’s appeals courts. Fidesz moved to pack the Constitutional Court, gerrymandered Hungary’s electoral map to its own advantage, and raided the offices of “unfriendly” NGOs before labeling them as foreign agents.

Poland’s PiS, because its mandate was weaker, has not been able to go quite as far. Still, Polish populists succeeded in turning public broadcasting into a tool of state propaganda, and, worryingly, in politicizing Poland’s judiciary by giving the Justice Ministry the power to force out lower court judges. A new, politicized disciplinary body is now authorized to keep judges in check, including judges of the Supreme Court. Dismissals of judges in retaliation for rulings deemed too “political” have become commonplace.

In response to these attacks by Hungary and Poland on the rule of law, the European Commission and the European Parliament have initiated a so-called Article 7 procedure against the two countries, a formal mechanism that is designed to stop democratic backsliding and is known as the “nuclear option.” Yet this process can lead to sanctions only by unanimous agreement of member countries, including Poland (in the case of the proceedings against Hungary) and Hungary (in the case of the procedure against Poland).

In other words, if it just follows the book without getting creative and ruthless, the EU is helpless.

Hungarian and Polish governments have sought to reframe their conflict with European institutions as a question not of democracy and the rule of law but of a cultural and ideological struggle over Europe’s “traditional values” and Christian roots. Fidesz and PiS have adamantly opposed immigration and identified homosexuality and “LGBT ideology” as prime enemies. Beginning in 2019, numerous local authorities in Poland have declared themselves “LGBT ideology-free zones,” banning pride marches and similar events. In May, Hungary banned legal gender changes, stipulating that only “sex at birth” can be entered into the civil registry.

The Hungarian government also lashed out recently against publishers of a children’s book featuring gay characters, calling it “homosexual propaganda.” And in October, Poland’s Constitutional Tribunal ruled that abortion in cases involving severe fetal impairment was unconstitutional, ending one of the few exceptions to the country’s extremely restrictive abortion legislation.

Critics of the Hungarian and Polish governments have unwittingly contributed to the conflation between the rule of law and a progressive agenda. For example, Judith Sargentini, a Dutch Green member of the European Parliament, criticized Orbán’s government in her 2018 report on the state of the rule of law in Hungary for leaving sexual orientation and gender identity out of the country’s constitutional ban on discrimination. In July 2020, members of the European Parliament expressed concerns about a long list of acts by Poland’s government: the “de facto criminalization of sexual education, as well as hate speech, public discrimination, violence against women, domestic violence and intolerant behavior against minorities and other vulnerable groups, including LGBTI persons, and the drastic limitation, coming close to de facto banning, of abortion and limiting access to emergency contraceptive pills.”

Those are plausible criticisms. But cultural conflicts divide not just Poland and Hungary but most Western societies and are much easier to resolve at home than in Brussels. In fact, there are indications that the constant doubling down on the culture wars may not be the political winner that the two parties are hoping for. The recent blanket abortion ban by Poland’s top court generated a backlash so strong that PiS is backtracking. Fidesz’ crusade against homosexuality, in turn, got a distinctly new flavor after one of its chief ideologues was caught at a gay orgy, violating Belgium’s lockdown rules. Yet, bringing such cleavages to the fore internationally provides Budapest and Warsaw with an easy way to deflect more straightforward critiques about the state of democracy and the rule of law—or corruption and patronage.

There is no doubt that an inflow of financial assistance from Brussels, comprising a dominant part of public investment in “new” member states, has been key to the consolidation of regimes that look less and less like democracies. EU funds have been critical to the personal success of politically connected Hungarian “entrepreneurs” like István Tiborcz, Orbán’s son-in-law, or Lőrinc Mészáros, the mayor of Orbán’s home village of Felcsút. Mészáros and his wife, worth $1.2 billion, own over one hundred companies that have been extraordinarily successful in winning government contracts. Some 83 percent of the earnings of these companies come from EU funds distributed by the Hungarian government. When Mészáros was once asked what accounted for his success, he answered, “God, luck, and Viktor Orbán.”

The proposal to boost the EU’s budget for 2021–27 and add a new financial package to accelerate the post-pandemic recovery, funded in part by EU bonds, has been controversial, especially in “frugal” EU countries that see themselves as net contributors to the EU’s coffers. It was partly in recognition of these tensions that the European Commission proposed a mechanism to protect the EU’s resources in situations in which the rule of law, including the integrity of the courts or auditing institutions, is visibly undermined. In fact, the new mechanism has already been approved by European leaders, in part because approval required only a qualified majority of member states. In a recent survey, 77 percent of Europeans, including 72 percent of both Poles and Hungarians, agreed with the move. Unfortunately, Hungary and Poland are threatening in retaliation for it to derail the budget and recovery package, whose approval requires unanimity.

Many people are urging the EU to call Poland’s and Hungary’s bluff, and rightly so. The two post-communist nations are, per capita, among the largest recipients of EU funds. Notwithstanding the Euroskeptic rhetoric by Mr. Orbán and Polish Prime Minister Mateusz Morawiecki, turning off the spigot is the last thing they want.

Yet playing a tough game with Hungary and Poland would involve violating perhaps the most significant of the EU’s founding myths: the pursuit of an “ever-closer union.” It would require the twenty-five remaining member states (or some smaller subgroup) to move ahead with the recovery plan as their own initiative, outside of the scope of European treaties, leaving Poland and Hungary behind.

Such a move would not be without precedent. The European Stability Mechanism, the emergency financing program for Eurozone countries in financial distress, was created in 2012 by an intergovernmental treaty among Eurozone members, thereby excluding EU countries outside of the common European currency. Yet such a decision would nonetheless be seen as a failure of the dominant assumption that the European project is a one-way ticket to a European federal state.

Given that the European People’s Party, the EU’s largest family of parties, has not found the strength to expel Fidesz from its ranks despite periodic warnings, it is far more likely that the coming days will see a lowest-common-denominator compromise. It will be hailed as a breakthrough and a triumph of European unity. Substantively, however, such a compromise is bound to leave Hungary’s and Poland’s authoritarianism unchecked. Worse yet, it will encourage the two governments—and, prospectively, other governments across Europe—to build authoritarian fiefdoms at European taxpayers’ expense, the long-term prospects for the European project be damned.

Dalibor Rohac is a contributing editor of American Purpose and a resident scholar at the American Enterprise Institute.