Formal Rule of Law backsliding in Hungary and Poland has been well-publicized. Yet this is just the tip of the iceberg of a system of informal power connections that are undermining the Rule of Law and democracy. In this RevDem Rule of Law podcast Oliver Garner discusses this informal power with Edit Zgut-Przybylska.

Edit Zgut is a visiting fellow at the CEU Democracy Institute within the auspices of her re:constitution fellowship. She is also a member of the European Studies Unit at the Polish Academy of Sciences. She teaches at the Foreign Service Institute of the US State Department, and she is the Vice Chair of Amnesty Hungary.

Oliver Garner: In 2021, you wrote a very well received RevDem op-ed on informal power in Hungary and Poland. This is now the topic of your re:constitution fellowship research. Could you explain the idea of informal power to our listeners, and furthermore, have there been any changes in the situation in these countries in the two years since you wrote that piece?

Edit Zgut-Przybylska: Indeed, a lot has been going on since I delivered this piece to you. I wrote this piece in November 2021, and I argued that the Kaczyński and the Orbán regimes are both undermining democracy with informal power. What is striking is that the EU does not constrain them in this process at all.

By informal power, I mean uncodified and informally enforced interactions of governments that create an uneven playing field to their own benefit.  This phenomenon manifests itself through the combined effect of organizational and electoral clientelism, and this informal power helps to control the state and the society for the governments while they are building a system of dependence on the ruling elite.

Most importantly, the informality of the power is very often used by the government in a coercive way to consolidate its control over the state and the society.

The EU itself does not use its legal and political toolkit to address these issues in these countries and this had had a very negative impact on the quality of democracy in Poland and Hungary. The European Commission had still not triggered the conditionality mechanism against Hungary because it did not want to escalate the situation regarding the maintenance of a strategic dialogue with Hungary and Poland regarding the rule of law.

Then the war in Ukraine broke out and Viktor Orbán, Prime Minister of Hungary, won another constitutional majority in elections last April. This was the moment when the Commission changed its previously rather cautious attitude and became a little bit more assertive. So it triggered the conditionality mechanism against Hungary, but not Poland.

Since then, I have started to look at the theoretical, structural, and political contextual features that explain this change of behavior by the Commission and the Council. What I found is that the war itself markedly changed the dynamics within the European Council. The Hungarian government was employing a very pro-Russian foreign policy approach and it was slowing down EU measures to support Ukraine. The Hungarian government was the only EU Member State that still has not ratified the accession to NATO of Sweden. This strategic behavior, like threatening vetoes in the Council, has obviously contributed a lot to Orbáns alienation within the Council.

Poland was a huge contrast. It was at the center of the EU/ NATO strategic response to the war and it was at the forefront of condemning the Kremlin, calling for weapon deliveries to Ukraine and the toughest possible sanctions against Russia.

The Commission probably wanted to trigger the conditionality mechanism against Poland as well, but then they dropped the case after the war broke out because they did not want to antagonize the Polish government which was rather constructive in comparison to the Hungarian government.

But they should have triggered it against Poland too, because of the systemic problems and informal power when it comes to Poland.

There has been a certain deviation from a previously cautious approach towards a more enforcement based approach regarding Hungary, and it indicates a stronger politicization of the EU approaches and responses toward these countries. This is not new at all in the history of the post-Maastricht era of European integration. This kind of politicization has been always rather cyclical, but obviously it has accelerated since Russia invaded Ukraine, and we still do not know if the Commission will insist on substantial compliance by the Hungarian government with regards to the “super-milestones” – they might just let another box ticking exercise take place. I do not want to run ahead of myself to say that the mission is completed and the problem is solved, but there is certainly a change in attitude at this point.

A recurring theme in our podcast recently is how much the war in Ukraine has changed dynamics within the EU. You touched upon your argument that informal power skews the playing field in three main domains: clientelist corruption, media capture, and electoral clientelism. Of these three factors, which do you think is most detrimental to the quality of democracy in a country that is subject to informal power?

I believe that each of these domains has a very negative impact on the quality of democracy and governance. I argue that these three domains are actually mutually reinforcing and complimentary in the context of democratic backsliding.

Clientelist corruption is key for autocratic regimes to control economic power, to keep opponents down, and to maintain the durability of their regimes.

The allies of Viktor Orbán gain a very dominant position when it comes to the media market and most important economic sectors. This kind of informal power eventually turned into a deep state that might stay with us even after the Orbán regime is gone.

That is the one of the most crucial issues here.

Regarding Poland, what I teased out throughout my research is that the PiS government is using state jobs as political leverage, and state administrative jobs to maintain power. They redistributed these state administrative and state company positions among their friends and relatives to keep the ruling camp together, which is very fragmented. The coalition is very fragile and the more fragile it gets, the more they need to reach out to these tools in order to glue it together.

I think the key difference between Poland and Hungary is that the private property is unsecured and conditional in very many cases in Hungary. What really matters is the nature of the relationship between the given oligarch or business representative and the Prime Minister. So, there is a lot of economic coercion in the system and private property might be expropriated whenever there is a change within the relationships of power, i.e., between the clients and the chief patron. I have not really witnessed such obviously prominent economic and policy coercion in Poland so far.

Media capture is obviously one of the most prominent tools with which autocrats are tilting the playing field everywhere. To gain control over the independent media, to boost their own support and undermine the opposition is the linchpin of any kind of autocratic regime.

How is this related to clientelist corruption? In Hungary, this is done by the same clientelist network of the ruling elite. The business allies of Prime Minister Orbán bought one media company after another and donated them deliberately to a centralized foundation, so that they serve the propaganda interests of the ruling elite. The Polish government has been doing something a little bit different. They have incentivized state companies like PKN Orlen to buy media on the local level. As the political director of Viktor Orbán once said: whoever controls the media of a country controls the mindset of the country and the country itself.

And the final act is to keep the elections running. This is the third element – the electoral clientelism. These elections, certainly in Hungary, are systematically biased for many reasons. One obvious reason is that the government has tilted the playing field so badly with media capture that the opposition has a lot less opportunity to compete for votes, to gain prominence, and to disseminate their messages. There is a 24/ 7 smear campaign against the opposition. The government is trying to fully undermine their legitimacy and discourage the undecided voters from supporting them.

Overall, the electoral side of clientelism is not just about this because the representatives of the governments also employ economic and policy coercion towards the most deprived voters, like the Roma people, for instance. This also creates a dependency structure to maintain societal support for the ruling elite, and these vulnerable groups are willing to support Fidesz for incentives such as the public workfare program, which is a great opportunity for them to have any kind of job. It is a super important instrument for the government because the state employs Roma people, and then the ruling elite can use it as a political leverage against them: in order to stay in the program, they have to prove that they support the ruling elite.

This kind of electoral, economic, and policy coercion is not that prominent in Poland. There are other type of problems, but if you put the organizational and the electoral side of clientelism together, this is like a black box. It is a very complex phenomenon, and legal scholars often struggle to conceptualize and address it because it has more complex informal underpinnings than the formal rule of law violations, which are often very obvious and outright, such as how the judiciary overhaul happened in Poland. We can backtrack and reconstruct this process legally, step by step, to determine how and when they violated their own constitution. This happened a little bit differently in Hungary, because very often it was not about the outright violation of the national constitution itself, but about flying beneath the radar to do this informally. I think this has had a very decisive impact on the approach of the European Union as well.

It is very interesting to hear how these three domains are mutually reinforcing, and I think you have presented that argument very powerfully. As we have been discussing, your research focuses on Hungary and Poland, and it is also interesting to hear about the differences in these domains between the two countries. But do you see examples of these phenomena of clientelist corruption, media capture, and electoral clientelism which could pose a threat also in consolidated democracies within the EU?

This kind of informal power is more prominent in Central and Eastern Europe due to many things, such as the post-communist heritage, but also the post-transitional heritage, i.e., what happened after the fall of communism. But if you speak about the broader problem of the informal distortion of democracy, and not necessarily informal power, then this is not a region specific. It is something which manifests itself differently in different countries, and also in established democracies.

For example, in Austria, party patronage, nepotism, and corruption have been traditionally very prominent, and the traditional left-wing and right-wing ruling elites together created a so-called Proporz system for dividing patronage. They traditionally divided jobs at the level of public administration, both on the local and the national level or, for instance, in the educational system and state-owned industrial sectors, for the very practical purpose of avoiding political fragmentation. So this was a long-term survival strategy. The patronage system that they created became very efficient for channeling mass party clientelism in terms of surveillance and mobilization. So, local party leaders of the two big blocs can, with the help of this Proporz system, keep their clients in check to maintain power.

We also know that media capture is not just a Polish or Hungarian phenomena. It is prominent elsewhere in the West too, for example, in the the way news media is becoming controlled by vested interests that are networked with politics or the political elite in Malta, Greece, and Spain.

This kind of non-democratic informality in general, not necessarily just informal power, varies across the region, and I believe it is really worth doing a large-scale cross-regional comparison.

The literature should put a lot more emphasis on this because right now it does not tell us much about these kinds of problems outside of Central and Eastern Europe.

I organized a cross-regional workshop on this topic in March called“Informality, electoral and organizational clientelism in the East and the West of Europe”. We organized this with my colleague Melani Barlai at Andrássy University, and CEU Democracy Institute was a co-organizer. I think it was super important and I was very excited to explore further these issues with colleagues from Poland, Czechia, Germany, Spain, Austria, and Georgia. I think it was a very useful and successful exercise and I am very much looking forward to continuing this work and to do the kind of comparison that you have asked about.

As you mentioned in your first answer, a key part of your research is the changing role of the European Union in confrontation with informal power. Much of the discussion of the EU’s role has focused on its formal tools, such as Article 7 of the Treaty on European Union and the rule of law budget conditionality regulation. Do you feel that the EU has done enough in terms of informal mechanisms to address the informal nature of the power that is being used for abusive purposes in these states?

Unfortunately not. I am super enthusiastic about Europeanization and EU integration in general, but I am pretty critical on this point. There are really no easy answers because, as I said, the phenomena of informal power is really like a black box.

Hungary and Poland benefit from the modus operandi of European integration, which is super legalistic, very formalized, and focuses on formal problems.

In order to prevent democratic and rule of law backsliding, and this specific informal angle of the problem, the EU should have employed a much more holistic and cross-cutting approach to combat the problems in these countries through three main steps: prevention, immediate legal actions, and efficient suspension of EU funds on time and not 10 years after the problem was detected.

Instead, the EU has tried to maintain a strategic dialogue in the case of Hungary for a decade. The institutions came up with new ideas and doctrinal innovations about how to fix these problems. At the beginning I also argued that this was a problem with the toolkit, but then I eventually joined those who were concerned that this is not the right approach because the EU already does have a rich toolkit and it just needs to be used to address the problems instead of coming up with brainstorming sessions all over again.

I agree that now we see some more assertiveness in the system, like the conditionality mechanism addressing systemic corruption in Hungary. But I think it is still very crucial that the Commission is still on the fence when it comes to informal media capture, and I am struggling to understand this. This media capture is happening under the watch of the EU institutions and I think we can safely say that the Commission is absolutely aware of what was going on in Hungary and Poland in this regard. These governments weaponized state aid and reallocated most public funds to pro-government media, while totally abandoning media which is independent from the ruling elite. This was happening in an institutional environment which was deteriorating for a very long time, and where the media authorities were completely captured. These bodies are assisting this kind of process overall and the EU did not make a legal or political move, like in the case of Hungary, for a decade.

There was only one infringement case regarding a license issue of the Klubrádió in Hungary and it was launched 10 years after the radio station got into trouble. This is shocking. The EU really should have launched the infringement a long time ago because Brussels has clear competences with regards to competition law and state aid. These are two fields which are obviously being violated not only by the Hungarian government, but also by the Polish government because of how they are informally capturing the media and weaponizing state advertisements. If the EU had launched such an infringement action a long time ago, then most probably the Hungarian media market would look markedly different today.

The other recurring problem is that when the EU measures the democratic functionality of state authorities, we get ourselves into a trap. We have many EU regulations that are monitoring media freedom, such as the Audiovisual Media Services Directive, which should regulate the functioning of the media authority bodies in the Member States. The problem is that this directive mostly focuses, again, on the formal requirements of bodies such as media authorities. For example, they must have an autonomous budget, they must function in a certain way, they should not recall their Member States based on political issues, and so on and so forth.

So, these are the formal requirements, which are actually on paper, fulfilled by most of the Member States, including Hungary and Poland. We can tick the boxes that mean that, formally, there is no issue. But, in practice, these national authorities are absolutely functioning in a biased way. If you look at the tendering of radio frequencies and how the media acquisitions are awarded in Hungary, the media council always favors pro-government players.

Instead of looking at what these bodies look like and how they function, we need to see what they are doing. It is like a beauty contest – we see that the bodies are functioning fine, but we do not look at what they are delivering. I think that this is highly problematic. In Poland, the media authorities most of the time penalize the independent television stations and they have to pay huge fines, but they never address the issues of the public television, which is technically a propaganda channel to undermine the opposition. Media freedom or capture of the media cannot be examined on the basis of the Audiovisual Media Services Directive which is, by the way, completely implemented by the national government, so it is part of national legislation.

I think that this problem dates back to the accession period of the Central and Eastern European Member States to the European Union.

Despite the goodwill of the EU, it has always pushed the candidates states to adopt democratic and market economy reforms on an industrial scale in a very top-down fashion, and the emphasis was always on ticking the boxes and not on the de facto enforcement or practical implementation of these laws.

I think that this is a very bad approach, which is traditional with the EU and we see the same kind of approach regarding the Western Balkans as they are trying to accede. The issue with Kosovo is obviously recurring and reflecting these kinds of problems. I think that a lot more attention should be paid to the implementation and proper enforcement of the market and rule of law related reforms instead of this box-ticking mentality. Otherwise, we are just going to reproduce the same structural problems all over again.

That is a very stark warning for future accessions, including potentially Ukraine as it now has candidate status. On that topic of Ukraine, we have arguably seen Hungary try to maintain its pivot role between Russia and the West, despite Russia’s invasion. Are these examples of how informal power structures such as clientelism with Russia have influenced the state’s geopolitical position on the war, and also therefore caused a rift with its illiberal partner Poland?

Yes, it did. The informal power exercise by Viktor Orbán very nicely fits the geopolitical strategy of the “Eastern Opening” and the policy of the government towards Asia in general. They announced this Eastern Opening a decade ago to strengthen economic ties with Russia, China, and many other Asian countries. The main purpose was eventually to expand the business opportunities for the clientelist network of the Hungarian Prime Minister. This eventually became a very important instrument for the Fidesz government to explore the markets where the cronies of the Prime Minister could expand their business opportunities in a non-transparent way.

They did this under the radar of any kind of EU regulations or constraints from anything or anyone.

Hungary engaged with these financial institutions from Asia to run their business operations under the radar of the EU. For instance, they opened trade houses in Russia, which were hugely exposed to systemic corruption, and provided a lot of rent seeking opportunities for the political and economic allies of Viktor Orbán.

This did not just happen in a vacuum, but it was embedded in a strongly Eurosceptic narrative.

The government fueled these sentiments towards the West, promoting the notion that it is trying to colonize Central and Eastern Europe, and that although Hungary would like to stay within EU, it is highly problematic because the imperialist West is willing to exploit the country economically and politically. Later on this reasoning was accompanied by the position that Hungary has to counterbalance its trade relations and be less dependent on the imperial West. The government would also constantly say, when the tensions with Brussels were increasing, that if Hungary is not going to receive the EU money, then they would go to get it from Asia.

Again, this shows that the Prime Minister was trying to puff himself up on the domestic level by claiming that Hungary are global players that can go elsewhere, and that the country is important enough that even China is willing to sit down with the government and it is going to be the bridge to China.

At the same time, this is really not working because Hungary is still totally dependent on the EU, and trading with other Central and Eastern European countries. But, in a nutshell, I think that this is the direct linkage between the informal power that is centered around Viktor Orbán and the country’s geopolitical strategy. This strategy is completely domestically defined when it comes to opening up towards Asia for financial power and political reasons.

So, how did this impact the overall isolation of Hungary and the break with Poland? I think that, especially since Russia’s invasion in the Ukraine, the Orbán government wanted to rebuild its position in Europe by exploiting these social frustrations across the whole continent about economic problems, high inflation, energy prices and so on. This is why Orbán tried to consolidate political forces with those governments or actors who would also advocate for agreement with Russia under this banner of ‘let’s make peace’.

This obviously did not work out because Hungary’s government was completely isolated in the Council and Hungary’s relations with almost all EU countries in the region have totally cooled down.

I think one of the most prominent examples [of Hungary’s isolation] was last December when the ultimate allies of the Fidesz government, Italy and Poland, voted in favor of suspending EU funds to Hungary. This was really a turning point and indicative of how isolated and weak the Hungarian Prime Minister is in the Council.

He cannot influence things other than by using the veto power as a revolver tactic, and the more you veto, the weaker you are. It shows that you are not capable of building coalitions around problem solving and pushing policy envelopes. At the moment, I think that Hungary could only strengthen ties outside of the EU, like with Serbia, which is traditionally close to Moscow. This is the most indicative factor of how much Hungary has got itself into trouble.

To conclude our conversation, I thought we could reflect on elections, both past and future. Do you believe that informal power, and particularly electoral clientelism, had an effect in Viktor Orbán’s victory in the 2022 Hungarian elections, and could it have a similar effect in the elections in Poland this year? Crucially, how can this be counteracted?

It surely did have an impact. Maybe I did not put enough emphasis on the electoral side of the clientelist component, but this is really something through which governments can keep not only the economic clientelist network in check, but also the society. I mentioned the Roma issue in Hungary with regard to structural dependency, and how the government are trying to keep them in check, so I think that how it works on a systemic level is quite obvious.

This instrumental exploitation of informal power created conditions in which it is extremely difficult to remove the government from power during electoral procedures.

In Poland, this situation is a little bit different because the government weakened the rule of law and checks and balances, which eventually made the state very vulnerable to clientelist corruption as well. So there is a lot of informal engineering in Poland too, starting with the nature of power itself. That informal power is centered around the person who is indeed not de jure the leader of Poland, Jarosław Kaczyński, who does not have any formal position. He is pulling the strings from the background and, in Poland, the most problematic angle of this informal power is the organizational side of clientelism. Party patronage and nepotism are key here. There is a mass allocation of public administrative and public sector jobs and these are the tools Kaczyński uses to try and keep things together. A distinguishing feature is that he is personally not accumulating wealth through this process, in contrast to Orbán.

In Poland there is also an increasing coercive factor when it comes to clientelist corruption because PiS is intimidating different members of the parliament and business representatives to support the government using this kind of leverage. This is happening in a very fragmented coalition structure: there are different competing power blocs which makes it a lot more difficult to maintain the durability of the regime. Rule of law and democratic backsliding and clientelist corruption are mutually reinforcing. The more fragile the system is, the more you need to reallocate power.

No one talks about it, but Poland also has a problem with its public procurement system. It has the highest rate of so-called single applicant tenders in the EU which means that the system could eventually somehow be rigged. Also, during the COVID pandemic, the government also started to abuse local funds and EU funds on the local level, which is also not being discussed. I think there are a lot of issues with Poland that show that it is not like the case of Hungary.

In the case of Hungary, everything is happening on the radar of the EU because they know and they see it but they just do not really want to deal with it right now. The ultimate negative impact for the integrity of the elections in Poland is, again, the capture of the media and how it has been butchered because of what has happened informally with the help of state companies. I think that how this clientelist media ownership has also started to gain significance in Poland is huge.

The key figure head is Daniel Obajtek, who bought the local media Polska Press. This is the way that the government got access to 17 million readers in the Polish countryside, and it was Jarosław Kaczyński himself who chose the new editor-in-chief for this media outlet. This is an absolutely politically loyal appointee called Dorota Kania. They established new platforms and, since her takeover, the content of Polska Press has become significantly more government-friendly than it was before.

Obajtek is indicative of this phenomenon. He is a former mayor of Pcim, and he converted his political capital into economic capital. He is a rising star of Jarosław Kaczyński, and he very quickly became the executive chairman of PKN Orlen. He has been accused of corruption, mismanaging company funds, and illegally mismanaging companies from the back seat. When he was a mayor, he misused a lot of public funds but, thanks to the captured public prosecutor system, the investigation into these issues was called off. This is the link back to the deterioration of the institutions and the rule of law, and how dysfunctional this has become, because no one is actually checking these issues.

The other informal problem with regard to electoral integrity is that these actors are also weaponizing state aid to boost the media that is praising PiS. They are boosting these outlets with the help of the state companies, and public funds are channeled through advertisements and partnership sponsored contracts to these outlets.

For instance, I think one of the most telling numbers when it comes to television is that 92% of all the advertising expenditure of state-owned companies was given to two government friendly television stations: TVP, which is the public TV, and Polsat, and 53% overall went to the public broadcaster itself.

No one is actually considering the market position of these media outlets and which one is better, so this is really not based on competition at all. This allocation of funds is based on political loyalty and those who are critical towards the government, like Gazeta Wyborcza and TVN are totally ignored and they are hunted by the media authority. This is heavily tilting the playing field.

In previous electoral campaigns we have seen that these media outlets were completely trying to undermine the legitimacy of the opposition. They were running 24/7 campaigns against the leaders of the opposition, Donald Tusk and Rafał Trzaskowski, and I think that the EU should pay a lot more attention to not only the media side of the problem, but also to the clientelist corruption. The EU has keep trying to tease out the judiciary overhaul because this is the casus belli and ground zero of how they started this procedure to address rule of law backsliding. But I think that the problems with informal power should also be on the radar of the Commission.

The EU needs to link the institutional deterioration of the rule of law to this arbitrary use of power and the weaponization of state aid in the media because this eventually has a negative impact on electoral integrity as well.

Arbitrary use of power in general for private political gains is something which is ultimately undermining the liberal pillars of democracy itself. I am thinking about freedom of speech, media freedom, which is strictly linked to the protection of private property, and the constitutional restriction on executive power, among other issues. If these variables are being emptied of substance, any system would lose self-protection and rule of law and democracy would become just a charade, which I think is pretty much the case in these two countries now.

This transcript has been edited for length and clarity.

In collaboration with Lorena Drakula.