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Contemporary commentary on central and eastern Europe tends to come down with a heavy hand. In his recent snapshot, “Poland’s Constitutional Crisis,” Daniel Kelemen explains the conflict between Poland’s ruling Law and Justice (PiS) party and the country’s Constitutional Tribunal by way of analogy with Hungary. As Kelemen writes, “the PiS is determined to defeat the Constitutional Tribunal because it is a major impediment to [PiS leader Jaroslawl] Kaczynski’s plan to introduce a populist electoral autocracy in Poland along the lines of [Prime Minister] Viktor Orban’s in Hungary.” This is a common comparison. But it is also mistaken. It conceals essential differences between the countries and leads to faulty conclusions, such as Kelemen’s recommendation that the EU should invoke Article Seven of the Treaty on the European Union, thereby threatening to suspend Poland’s rights as an EU member. Such ill-advised steps, however, could plunge the EU into an even deeper crisis of legitimacy.
The governing party of Hungary, Fidesz, does indeed have certain ideological affinities with the PiS. Both are conservative nationalist parties, whose leaders, Orban and Kaczynski, have met twice since the PiS came to power in late 2015. Economically, Fidesz and the PiS both embrace a version of nationalism that combines support for redistrubitive social policies with skepticism toward international corporations. Both parties are also opposed to immigration, and, especially in Hungary, this has been used to mobilize radical nationalist sentiment, although opposition to the pro-migration policies of Germany and Sweden is not unique to Hungary or Poland. Both parties, moreover, have focused on constitutional change in their respective countries. And there is, as Kelemen rightly points out, an ongoing constitutional crisis in Poland, which raises questions there about a concentration of power not dissimilar to those raised by the developments in Hungary.
Yet Hungary’s conservative turn under Orban has been considerably more populist and authoritarian than the one in Poland under the PiS. For instance, in 2010, when Orban had a large enough parliamentary majority to change the Hungarian constitution, he passed limitations on freedom of speech, public and private media, and changed the electoral law to favor large parties such as Fidesz. One of the key new constitutional provisions was the Fourth Amendment, which undermined the independence of the judiciary, brought universities under greater governmental control, categorized homelessness as a crime, and damaged human rights in general. Nothing comparable has happened in Poland, where there is a free, private, and largely international media (with the exception of the state media, which has always been up for grabs after elections), and there are no serious limitations on civil liberties. Even Poland’s new counterterrorism law, sometimes held up as an assault on civil liberties, is well within the European mainstream, and many of its new security measures, including the obligation to register prepaid SIM cards, have been practiced by countries such as Germany for years.
In Hungary, many of the worst changes can be traced to Fidesz’s cooperation with the openly anti-Semitic and neo-fascist Jobbik party, which is now the third-largest in Hungary, winning over 20 percent of the popular vote in 2014. Although Jobbik has never formally entered government, Fidesz has adopted many of Jobbik’s ideas and policies while collaborating with individual Jobbik politicians, despite the fact that Fidesz has had no tactical need to do so. In Poland, no political force similar to Jobbik exists. Orban, moreover, has not only heavily meddled with his country’s constitution (unlike the PiS, which has used ordinary laws for its controversial reforms), but has openly used the term “illiberal state,” modeled on Putin’s Russia or Erdogan’s Turkey, to positively describe his political ideal.
The contrast between the countries is evident in their treatment of the press. In Freedom House’s Freedom of the Press 2016 report, Hungary’s press is considered only “partly free,” and according to their 2015 country report, “defamation remains a criminal offense [in Hungary], and both defamation and related charges—for example, breach of good repute and hooliganism—are regularly brought against journalists and other writers.” This is not the case in Poland, where Freedom House considers the press “free,” journalists work unimpeded, and private and state media compete with one another. The leading television channel in Poland is TVN24, which is highly critical of the government, followed by the state information channel TVP Info.
Orban has been able to limit independent press outlets to a narrow spectrum of the Hungarian media constellation, and has successfully silenced critical voices, which have been unable to present the public with alternatives to the radical nationalism of Orban and his allies. The Hungarian government has also used a new advertising tax to influence coverage in privately owned media, especially television stations. In 2011, Daniel Papp, co-founder of Jobbik, was installed as editor-in-chief of public television news, and in 2014, he was put in charge of all public media news content. The results have been apparent in the lead-up to Hungary’s October 2nd referendum on EU refugee sharing, in which the government has distributed posters featuring crude xenophobic and anti-immigrant propaganda. In Poland, state media has certainly become more conservative and PiS-friendly, but this is common after changes in government, and private media has retained its independence.
Orban has been able to limit independent press outlets to a narrow spectrum of the Hungarian media constellation, and has successfully silenced critical voices, which have been unable to present the public with alternatives to the radical nationalism of Orban and his allies.
Two further differences stand in the way of an authoritarian slide in Poland. First, Orban’s close relationship with Russian President Vladimir Putin can, for historical reasons, not be replicated in Poland. Hungary is, and will remain, the key troublemaker when it comes to EU policy toward Moscow. Orban is inspired by the Russian political concept of “sovereign democracy”—a form of managed democracy with limited social and political pluralism—and enjoys playing the EU against Russia and vice versa. Warsaw, by contrast, has long felt geopolitically threatened by Russia, and will not consider leaning toward Moscow as an alternative to the EU. In fact, despite the ongoing tensions between the European Commission and the PiS government, no Polish political actors are suggesting Poland should leave the EU—this at a time when the United Kingdom has already voted to leave, and populist parties in Denmark, Finland, France, and Sweden are all demanding exit referenda.
Second, Orban has successfully tamed Hungarian civil society, whereas Poland’s vibrant civil society is actively constraining the PiS from concentrating power. The Committee for the Defense of Democracy (KOD) movement, which has been organizing rallies against the PiS government since December 2015, has been able to consistently gather more than 100,000 attendees at weekend protests, and after eight months of symbolic resistance is not out of breath yet. In general, Polish society is culturally anarchistic, and traditionally distrustful of any government. This culture functions as a bulwark against authoritarian tendencies. Orban’s recent invectives against Hungarian–American billionaire George Soros, whom he accused of fostering “chaos” in Hungary by sponsoring NGOs, were largely undisputed within Hungary itself. But in Poland, such blunt accusations would be impossible without provoking furious reactions against the government.
Since the PiS has come to power, there have certainly been problematic developments in Poland, particularly surrounding the ongoing dispute over the Constitutional Tribunal. But it is misleading to suggest that Orban’s Hungary and Kaczynski’s Poland are following the same grand design.
This brings us to the question of policy. Kelemen suggests that the EU should invoke Article Seven in order to initiate a disciplinary proceeding against Poland for violating the rule of law, in part because it failed to do so with Hungary. But overcompensating for the decision not to censure Orban will not solve Poland’s constitutional troubles, and it might damage the EU even further. Many of the measures already initated against the Polish government, such as the formulation of strict deadlines for Poland to implement the European Commission’s policy recommendations, have little legal basis in the EU Treaties. A rule of law probe, therefore, could end in a lawsuit against the commission at the European Court of Justice, with good chances of the Polish government winning it. In this case, the attempt to weaken the rightist PiS government would actually strengthen it. Worse, overreach from the commission could have serious consequences for EU legitimacy, at a time when the union has already been weakened by the Brexit referendum and the rise of euroskeptic populism across the continent.