November 10, 2020

Throughout the autumn, the European Union has been engaged in a standoff with its two most antagonistic members, Hungary and Poland. At stake was whether the EU would finally take meaningful action against these pioneers of “illiberal democracy”, to use the infamous phrase of Hungarian Prime Minister Viktor Orbán. As of last week — and despite appearances to the contrary — it seems the Hungarian and Polish regimes have postponed the reckoning once more.

Last week, representatives of the European Parliament triumphantly announced a new disciplinary mechanism which, they claimed, would enable Brussels to withhold funds from states that violate liberal democratic standards. According to MEP Petri Sarvamaa, it meant the end of “a painful phase [in] the recent history of the European Union”, in which “the basic values of democracy” had been “threatened and undermined”.

No names were named, of course, but they did not need to be. Tensions between the EU and the recalcitrant regimes on its eastern periphery, Hungary under Orbán’s Fidesz and Poland under the Law and Justice Party, have been mounting for years. Those governments’ erosion of judicial independence and media freedom, as well as concerns over corruption, education, and minority rights, have resulted in a series of formal investigations and legal actions. And that is not to mention the constant rhetorical fusillades between EU officials and Budapest and Warsaw.

The new disciplinary mechanism is being presented as the means to finally bring Hungary and Poland to heel, but it is no such thing. Though not exactly toothless, it is unlikely to pose a serious threat to the illiberal pretenders in the east. Breaches of “rule of law” standards will only be sanctioned if they affect EU funds — so the measures are effectively limited to budget oversight. Moreover, enforcing the sanctions will require a weighted majority of member states in the European Council, giving Hungary or Poland ample room to assemble a blocking coalition.

In fact, what we have here is another sticking plaster so characteristic of the complex and unwieldy structures of European supranational democracy. The political dynamics of this system, heavily reliant on horse-trading and compromise, have allowed Hungary and Poland to outmanoeuvre their opponents.

The real purpose of the disciplinary measures is to ensure the timely passage of next EU budget, and in particular, a €750 billion coronavirus relief fund. That package will, for the first time, see member states issuing collective debt backed by their taxpayers, and therefore has totemic significance for the future of the Union. It is a real indication that fiscal integration might be possible in the EU — a step long regarded as crucial to the survival of Europe’s federal ambitions, and one that shows its ability to respond effectively to a major crisis.

But this achievement has almost been derailed by a showdown with Hungary and Poland. Liberal northern states such as Finland, Sweden and the Netherlands, together with the European Parliament, insisted that financial support should be conditional on upholding EU values and transparency standards. But since the relief fund requires unanimous approval, Hungary or Poland can simply veto the whole initiative, which is exactly what they have been threatening to do.

In other words, the EU landed itself with a choice between upholding its liberal commitments and securing its future as a viable political and economic project. The relatively weak disciplinary mechanism shows that European leaders are opting for the latter, as they inevitably would. It is a compromise that allows the defenders of democratic values to save face, while essentially letting Hungary and Poland off the hook. (Of course this doesn’t rule out the possibility that the Hungarian and Polish governments will continue making a fuss anyway.)

Liberals who place their hopes in the European project may despair at this, but these dilemmas are part and parcel of binding different regions and cultures in a democratic system. Such undertakings need strict constitutional procedures to hold them together, but those same procedures create opportunities to game the system, especially as demands in one area can be tied with cooperation in another.

As he announced the new rule of law agreement, Sarvamaa pointed to Donald Trump’s threat to win the presidential election via the Supreme Court as evidence of the need to uphold democratic standards. In truth, what is happening in Europe bears a closer resemblance to America in the 1930s, when F.D. Roosevelt was forced to make concessions to the Southern states to deliver his New Deal agenda.

That too was a high-stakes attempt at federal consolidation and economic repair, with the Great Depression at its height and democracy floundering around the world. As the political historian Ira Katznelson has noted, Roosevelt only succeeded by making “necessary but often costly illiberal alliances” — in particular, alliances with Southern Democratic legislators who held an effective veto in Congress. The result was that New Deal programs either avoided or actively upheld white supremacy in the Jim Crow South. (Key welfare programs, for instance, were designed to exclude some two-thirds of African American employees in the Southern states).

According to civil rights campaigner Walter White, Roosevelt himself explained his silence on a 1934 bill to combat the lynching of African Americans as follows: “I’ve got to get legislation passed by Congress to save America… If I come out for the anti-lynching bill, they [the Southern Democrats] will block every bill I ask Congress to pass to keep America from collapsing. I just can’t take that risk.”

This is not to suggest any moral equivalence between the Europe’s “illiberal democracies” and the Deep South of the 1930s. But the Hungarian and Polish governments do resemble the experienced Southern politicians of the New Deal era in their ability to manoeuvre within a federal framework, achieving an autonomy that belies their economic dependency. They have learned to play by the letter of the rules as well as to subvert them.

Orbán, for instance, has frequently insisted that his critics make a formal legal case against him, whereupon he has managed to reduce sanctions to mere technicalities. He has skilfully leveraged the arithmetic of the European Parliament to keep Fidesz within the orbit of the mainstream European People’s Party group. In September, the Hungarian and Polish governments even announced plans to establish their own institute of comparative legal studies, aiming to expose the EU’s “double standards.”

And now, with their votes required to pass the crucial relief fund, the regimes in Budapest and Warsaw are taking advantage of exceptionally high stakes much as their Southern analogues in the 1930s did. They have, in recent months, become increasingly defiant in their rejection of European liberalism. In September, Orbán published a searing essay in which he hailed a growing “rebellion against liberal intellectual oppression” in the western world. The recent anti-abortion ruling by the Polish high court is likewise a sign of that state’s determination to uphold Catholic values and a robust national identity.

Looking forward, however, it seems clear this situation cannot continue forever. Much has been made of Joe Biden’s hostility to the Hungarian and Polish regimes, and with his election victory, we may see the US attaching its own conditions to investment in Eastern Europe. But Biden cannot question the EU’s standards too much, since he has made the latter out to be America’s key liberal partner. The real issue is that if richer EU states are really going to accept the financial burdens of further integration, they will not tolerate deviant nations wielding outsized influence on key policy areas.

Of course such reforms would require an overhaul of the voting system, which means treaty change. This raises a potential irony: could the intransigence of Hungary and Poland ultimately spur on Europe’s next big constitutional step — one that will see their leverage taken away? Maybe. For the time being, the EU is unlikely to rein in the illiberal experiments within its borders.