Despite the Polish opposition election victory in the 15 October elections on 27 November President Duda swore in the Law and Justice Party ahead of a confidence vote that the incumbents seem set inevitably to lose. In this latest Rule of Law podcast, Oliver Garner and Daniel Hegedüs discuss the implications of the election for Central and Eastern Europe. Daniel is a German Marshall Fund fellow with expertise in populism and democratic backsliding and the foreign affairs of the Visegrad countries.

Oliver Garner: Why do you think that the Polish opposition were able to succeed in the recent elections where the Hungarian opposition failed in 2022?

Daniel Hegedüs: I think this is an excellent question and it provides us with enough food for thought for the whole podcast. But I will try to narrow it down to the main angles because we can have different avenues for how we approach this question. We see clear differences in electoral mobilization, institutional affairs, and backgrounds that impact the competitiveness of the election. There were also differences in the international reactions, the personal question within the opposition, and divided perceptions in the society.

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I think that the Polish opposition was able to succeed due to the high level of participation. This high level of participation also impacted the traditional rural areas which were seen as the heartlands of the Law and Justice Party. The key question is how was the opposition able to to broaden its base amongst that electorate? One response is that the level of polarization and the hate narrative was too much for a large segment of Polish society. It was much less sophisticated than that cultivated by Fidesz and much more brutal in the forging of enemies.

Polish voters protected their private sphere against the intrusion of hateful politics into their lives.

The second reason is tied to the banning of Ukrainian grain imports and the protection of Polish farmers. Actually, the Polish government made a couple of moves which violated the fundamental interests of this agricultural electoral base. One of the most important parts of this was last year’s animal protection law, which was widely unpopular amongst this sector. So, we can see different convincing arguments for why this time a significant part of the PiS electorate was less convinced this time.

On the institutional components, I think that the most crucial point is the quality of media pluralism in the two countries and the level of political control that incumbent parties were able to exert over the media landscape. Obviously, public broadcasters are more or less on the same level in both countries. They are mouthpieces of the incumbent party and cultivate a level of political discourse that is very primitive and aggressive.

But we see real differences between Hungary and Poland in the extent of media pluralism and the level of quality of reporting in the private media segment.

I think we have to emphasize that television is still a crucial medium and we see very fundamental differences between the primary private television station Poland (TVN) and in Hungary (RTL and ATV). While TVN was always very engaged in addressing all the controversial issues around the government in a very critical way, that is not the case in Hungary. RTL offers a sanitized version of political realities in Hungary and does not attack family members or close associates of the Prime Minister. Meanwhile, it is clearly an anti-immigration media channel which very often clearly uses the vocabulary of the Hungarian regime offering a very strange combination to opposition voters. While they are l watching their main candidates, they are also exposed to the narrative of the Hungarian government.

Hungarian commentators would emphasize that there are different characteristics of the electoral regime. The Polish one offers a higher level of plurality. It is not a super majoritarian system. In the Hungarian electoral system, PiS would have a clear majority, even if not a supermajority.

An under-discussed topic is the nature of international reactions. The United States exerted significant political leverage and pressure over the Polish regime in protection of TVN. Then the Polish government wanted to push out the US ambassador from this private television company.  There were also the reactions of both the United States and the European Union to the planned “Lex Tusk” legislation this year, which could have allowed the regime to disqualify important opposition players from the election.

If we imagine that Lex Tusk had come into force and TVN were under government control, then he outcome of the Poland election could have been significantly different.

  We can compare that with the international reaction to the 2022 Hungarian elections, when the mainstream approach was not to introduce EU sanctions under the budget conditionality regulation in advance to the election. This was done to avoid accusations from the Hungarian government of an intervention into the domestic affairs of the country. I think that the main lesson for all international partners is that it is better to intervene before elections. After the election, there will be a completely new political landscape and the window of opportunity will be gone for a long period of time.

On personality, I am definitely not an analyst who repeatedly uses all opportunities to emphasize the weaknesses of the Hungarian opposition. But it is an objective fact that having a seasoned and successful former Prime Minister and President of the European Council was qualitatively different from the offer of the Hungarian opposition. Fidesz pundits could rightfully point out that the only person with significant government experience was Ferenc Gyurcsány, who was definitely not an attractive offer for a large part of the Hungarian electorate. This question over competence could not be raised by the incumbent side in Poland in a manner that was possible in Hungary.

Another clear difference is that, for a large part of the Polish electorate, the perception was widespread that this was a watershed moment and potentially the last time when Poland would have democratic elections.

Against the background, voting for change was essential.

Last, but not least, I think that luck is potentially one of the most important variables in politics. Unfortunately, we cannot measure it, but we also cannot underestimate its importance. Here, the question of timing was essential. In early 2022 Hungarian society was not exposed to levels of record inflation, which has been present since then and is also present in Poland and heavily impacted electoral attitudes towards the government. We have already mentioned the animal protection law which significantly decreased the output legitimacy of the PiS government within important segments of the electorate. Another very crucial point was the previous abortion law, which absolutely alienated PiS from the urban center-right voters. It created an existential question for these voters that, irrespective of who came to power, that party or that political coalition should have a progressive approach to abortion and women rights. This was measured very well by survey companies close to the Polish opposition. I have to admit I belonged to those analysts who contemplated whether it was too radical a step, when the opposition program was announced, to propose a liberalization of abortion rights. But apparently it was well measured and a politically realistic move because I think that significantly contributed to very widespread popular support behind the Civic Platform-led three party coalition.

You mentioned the powerful idea that this may have been regarded as the last chance for a democratic election in Poland as a watershed moment. Both the elections in Poland and Hungary have been described by certain academics as “free but unfair”. What does this mean in practice?

We should go back to some classics when it comes to uneven political playing fields and free but unfair elections. We cannot circumvent Levitsky and Way and the concept of competitive authoritarianism. We should just read this one sentence definition:

“competitive authoritarian regimes are civilian regimes in which formal democratic institutions are widely viewed as the primary means of gaining power, but in which fraud, civil liberty violations, and abuse of the state and media resources so skew the playing field that the regime cannot be labelled democratic anymore.”

This is literally what we have seen increasingly in the 2014, 2018, and 2022 Hungarian elections. The last free and fair elections where Hungarian voters had the opportunity to cast their ballots happened more than 13 years ago back in 2010. The same dynamics have been witnessed also in Poland since 2019. So this was not the first free but unfair election in Poland either. This time we were able to see that this uneven playing field is particularly present in the field of the media, where opposition party representatives and incumbent representatives have uneven access to the public. In the public discourse, there is an overwhelming superiority for the incumbent side when it comes to media coverage. When it comes to direct control over large segments of the media, obviously the public media and TVP comes to mind first. But in that regard the Polish regime very successfully copycatted the Hungarian blueprint, especially when it came to establishing control over a large segment of printed, local, and regional media. The Polish Energy Company, PKN Orlen, bought Polska Press and with it the largest local regional media portfolio in the country.

We can also observe a similarly significant incumbent advantage when it comes to campaign financing through the outsourcing of political and electoral campaigns to the government information campaign. It’s a very widespread practice both in Hungary and and Poland. According to some observers the main reason behind organizing the anti- immigration campaign, beside mobilizing the core electorate of PiS, was to create an absolutely separate campaign fund for the regime which was not limited by party financing and campaign financing rules. Last but not least, we also have to mention the role of state-owned companies and their donations to the individual campaigns of PiS candidates, their donations to the mainstream campaign, and their contribution through other formats to this whole political struggle.

This toolkit is very similar to the methods of the Hungarian government. But I would emphasize and underline that in the case of Hungary there is the use of government organized non-government organizations as campaign tools because, once again, they are not subject to the same rules as political parties during election campaigns. In 2018, Hungarian state owned companies donated large amounts of financial resources to Hungarian NGOs who used those finances both for government campaigns but also to intimidate and attack the public enemies of the government: opposition politicians, NGOs, etc. In that way they very much amplified the government discourse and narrative in the public space. Obviously, we could go beyond those categories and also address the issue of the e electoral regime and the electoral system. But most of the analysts and also the election observers mainly emphasize the importance of media and campaign financing.

To highlight that this is not just the theoretical contemplations of analysts and academics, I would like to quote one phrase from the official OSCE election observation report about the Polish elections, which states that “[t]he 15 October parliamentary elections were competitive, and voters had a wide choice of political alternatives, but the ruling party enjoyed clear advantage through its undue influence over the use of state resources and the public media”. I think that this could be also a definition of a free but unfair election.

This is the first sentence of this election monitoring report: free but unfair elections are where the ruling party enjoys a clear advantage over its competitors through undue influence over the use of state resources.

I think that’s a very clear definition for our listeners. Considering the implications for the European level, do you believe that the Polish opposition victory means that the Council and the European Council will now proceed with a vote under Article 7 TEU to determine whether there is a clear risk of breach of EU values in Hungary?

I think that one of the most basic rules for political analysts is not to engage in predictions!

The answer to this question depends on the strategic considerations of Prime Minister Tusk and whether, for some reason, he seeks a showdown or a confrontation with the Hungarian Prime Minister for some reason that will be part of his political agenda or not.

My very big prediction is that Tusk will seek some level of pragmatic cooperation with Orbán and his regime in Hungary for very rational, strategic reasons: to secure the EU funding and financial aid for Ukraine at the end of the year or the beginning of next year.

I think that everyone who is invested in the support of Ukraine knows that European stakeholders should start to look beyond 2024 and be prepared for the event that Donald Trump might return to the White House. That will have obviously have far reaching consequences for the military and financial support that Ukraine may receive from early 2025. It also means that both the European Union and Member States individually should step up their efforts. In that regard, I think that even the responsible strategic approach from the next Polish Prime Minister is to try to mitigate Hungarian potential vetoes. Obviously a very wide confrontation with Orbán does not necessarily serve that strategic purpose. However, if the Hungarian regime continue to block different levels of European aid to Ukraine, be it military aid from the European defence facility or the general agreement about the raising of the EU budget and the 60 billion euro financial aid, then obviously that will also alter the strategic considerations of key European players. I am sure that will also impact the strategic considerations of Donald Tusk.

There is also another side of the story: how will Donald Tusk perceive a confrontation with Orbán in the context of his domestic crusade to restrengthen the Rule of Law, liberal constitutionalism. and pluralist democracy in Poland. If his approach will be primarily domestic focused, and his perception will be that everything beyond that is a strategic over-extension and he cannot afford to spend resources on a confrontation with Orbán at the European level, then obviously the focus will be domestic and an escalation at the European level is less likely.

If, however, Tusk see these two challenges as being two sides of the same coin, and if he thinks that he can also benefit at the domestic level from certain successes in fighting illiberal and authoritarian drivers at the level of the European Union then obviously an escalation is more likely here.

I would like to emphasize that this will be a very important venue of advocacy for civil society and for international partners in the months to come. So, I don’t think that it’s already a closed question. On the contrary I am convinced that the Polish perceptions and the future Polish government’s politics can be influenced and shaped.

Ultimately, politicians are also human beings. So, it’s also a question of what sort of legacy would Donald Tusk like to leave behind. Is triggering the downfall of Prime Minister Orbán his ambition to be part of his ultimate political legacy? I think that there a lot of very objective strategic considerations which will decide how Poland will behave on the European stage vis á vis Hungary. But I think that, in some form, even the previous personal relationship and future personal legacy related lens of Donald Tusk will also play some role in that regard.

Of course, the elections in Poland were not the only elections we’ve seen in Central and Eastern Europe over the autumn. Elections in Slovakia have led to Robert Fico being appointed as Slovakia’s Prime Minister again. There are already reports that he may be looking to implement certain plays from the illiberal playbook that we have seen in Hungary and Poland. What do you think could be done to ensure that Slovakia does not go down the same path of Rule of Law backsliding?

This is a very crucial question. Based on the announcements of Prime Minister Fico I think that we can expect some strikes on the Slovakian civil society but also on the representatives of Slovakian independent media.My answer does not go into the direction of institutional responses – I have been following the authoritarianization of Hungary and the EU reactions on for 13 years and objectively institutions matter.But I think that the basic political perception and approach of key stakeholders is even more strategic and important. That approach determines the political will and the readiness either to use the available toolkit, the way in which the toolkit is used, and also the investment in the future in developing further items to address or combat authoritarian developments.

My advice affects the basic level of the political approach.

I think that it will be important with Slovakia, especially based on the lessons learned with Hungary and Poland, to show red flags and draw red lines – not in the Manfred Weberian sense but in the primary meaning of the concept – as early and as clearly as possible.

The main goal here is always to influence the cost-benefit calculations of domestic elites that are prone to authoritarian and illiberal power. If, in a very objective and consequential way, it is made clear at the beginning that there will be a tit for tat, that there will be a cost for every single non-democratic move, then this is the way that you can influence the cost benefit calculations and the political behavior of the actors.

My second key piece of advice would be that if any future Slovakian legislation related to key institutional components of the political system, be it the electoral system, the media, civil liberties, civic activism, and the operational environment for NGOs is controversial then that should be approached and interpreted as being in bad faith. I think that this does not impact the basic European principles of mutual trust and honest cooperation. To the contrary, it’s really a lesson learned over a decade of illiberal political dynamics. Robert Fico is not a carte blanche for his European partners as a Slovakian Prime Minister. We know where his policies led Slovakia in 2018. We know that, together with Malta, Slovakia is the other EU country where investigative journalists have been killed. Obviously, in several respects, Slovakian democracy has been performing better, even under Fico, than Hungary and Poland. But these were not his merits – they were the merits of the Slovakian political system and especially the very proportional electoral system which always guarantees a high level of proportionality in the country. But in areas where his government has had widespread influence his track record is really negative. This includes the investigation and prosecution of political corruption, the intimidation of journalists, and creating shrinking spaces for independent media and civil society.

I think that his future step steps should be interpreted by his international partners against this background. Slovakia already has some experience with international sanctions, not within the European Union, but in the US-Slovakian bilateral relationship. We shouldn’t forget that Marian Kočner, the person potentially responsible for the murder of the journalist Ján Kuciak, was put on a global Magnitsky list. The former Slovakian Prosecutor General Maroš Žilinka was also put on the sanction list and is not able to enter the United States. As illiberal populist governments always have some anti-American and anti-transatlantic trends, tensions in the transatlantic relations of the country can be very easily predicted.

The United States can play a key role here in shaping the cost-benefit calculations of the Slovakian regime and in establishing the red lines whereby if anything happens in the legislative field that seriously infringes the rights of civil society organizations and limits political pluralism in the country, it can result in further Slovakian individuals being put on the Magnitsky list, thus cutting them off from the international financial system.

Hopefully that sort of messaging can help keep Slovakia on the more or less liberal democratic path for the next four years to come.

You touched in an earlier answer upon what the impact of the Ukrainian issue could have for Polish and Hungarian relations after the Polish election. Do you think that the opposition victory will change anything else in the dynamics of EU-Russian- Ukrainian foreign relations?

I think that the primary impact will be that that Poland’s Ukrainian policy will be business as usual again, because we have seen a significant deviation from that. Certain Polish analysts would question that conclusion. But if we consider the Polish ban on the import of Ukrainian grain, and if we consider the statement of the Polish Prime Minister Mateusz Morawiecki about the stopping of military aid, a US diplomat with whom I had a discussion told me that she hasn’t seen that level of gas-lighting in international politics for a while. Huge energies were invested in explaining why the words of the Polish Prime Minister do not mean what they literally mean without either raising the opportunity that it was either a very significant communication failure by the Prime Minister or they know they were signalling some change in the in the Polish approach.

In a nutshell, I think that uncertainties in the future approach to Poland are now ruled out.

Hopefully Poland will return back to that quality of strategic thinking in the field of foreign policy which is absolutely unique in a Central and Eastern European comparison. No other country has that level of strategic tradition. Even Czechia’s tradition of foreign policy has been challenged more by key representatives of the Czech State and Czech foreign policy. The real question in the case of Poland is how far can this renewed engagement influence the European approach in the years to come?

I know that my analysis will not necessarily be popular in Central and Eastern Europe, but I think that the new Polish Prime Minister Donald Tusk will have to conduct potentially more convincing work among its regional allies in the future to keep financial and military support to Ukraine than in the case of the former usual suspects who were not so committed in this support like Germany or France.

We have seen a strategic pivot in the case of the French President Emmanuel Macron when it comes to Ukraine, even including the potential EU membership for the country. We have seen blossom in recent weeks the unilateral renewal and commitment of the German Federal government to the continuation of intense military support to Ukraine, while we have seen in parallel the suspension of military aid on the part of Slovakia. I think that we will see the Hungarian government digging in and blocking everything related to that question.

We can’t predict and foresee what sort of changes the election of Donald Trump might trigger in the political scene, especially if in the aftermath of the European parliamentary election pro-Russian and Ukrainian-skeptic the conservative radical right is strengthened on the European stage. But I think that in 2024 the main focus of a renewed Polish commitment should be convincing and rallying regional allies again for a committed and and strong support to Kyiv.

You provided some robust ideas for how the EUs could address potential Slovakian backsliding. For our final question, what more holistic reform would you propose at a future EU treaty amendment to address the root cause of iliberal backsliding once and for all?

I will try to avoid a straightforward answer. I am convinced that an EU reform is unavoidable for any EU enlargement.

I think that everyone who really would like to see Ukraine, the Western Balkan countries, Moldova, and potentially also Georgia as members of the European Union within the next 10 to 15 years in a responsible way also cannot avoid the question of addressing EU reform. Notwithstanding this, I am politically very skeptical about whether an EU reform is feasible within the next three years in any way.

Without the treaty reform, I think that all of these suggestions for a revamp of the EU’s institutional toolkit to protect democracy and fundamental rights in the Member States is not pointless but would be really within the sphere of academic thinking.

Making some policy considerations I would very much be in favor of suspending the voting rights of the Hungarian regime in the European Union under Article 7(2) TEU. That would solve a couple of problems, for example, including the question of providing financial aid to Ukraine. But it will not solve the question of EU treaty reform because the ratification procedure is different from voting in the Council. We could discuss that with EU lawyers in a different format, but I don’t think that the Member States’ sovereign right in the ratification procedure would also be suspended by Article 7. A lot of ideas were already floated with regard to a reform: for example, lowering the threshold of the Article 7 procedure. Also there has been the proposal for the expansion of the conditionality mechanism to allow  financial sanctions and the suspension of EU cohesion transfers, even in the case of Rule of Law violations which do not have a direct impact on the EU’s financial interests.

All of these things were already written and repeated several times. I would make some some suggestions that are a bit more controversial. Although I am a political scientist and not a lawyer, they are much more legal in nature. There are two interrelated points. First, the Charter of Fundamental Rights of the European Union today is only binding for Member States when they implement EU law. That is the famous Article 51 of the charter. That Article should be eliminated once and for all.

The Charter of Fundamental Rights of the European Union should be legally binding for all EU member states irrespective of whether they are implementing European or national law.

Under the Charter citizens should be able to sue Member State if their rights are violated.

The second point very much builds on the first one.

The jurisdiction of the Court of Justice of the European Union should be significantly extended. The CJEU today is not an appeal court. I think that it should be made an appeal court like the European Court on Human Rights in Strasbourg.

It wouldn’t be a duplication because of the legal norms that they use. The European Convention on Human Rights and Fundamental Freedoms and the totality of EU law are significantly different. But if, after exhausting all of the national legal remedies, all EU citizens had the right to appeal to the Court of Justice of the European Union obviously that would be a significant step in the direction of legal federalism. But that would establish a sort of European Constitutional Court in the sense that it is accessible for every EU citizen. I think that would be a very significant contribution to the protection of human rights, liberal constitutionalism, and pluralist democracy within the European Union.

Although I do not think that that these reforms may come anytime soon, and especially if an EU reform were proposed to take place in parallel to the enlargement process because the opposition to EU reform is huge with arguments of national sovereignty. We know how the European Union works: the most obvious deal to buy the political support of the Member State is that, if they agree to all of the institutional requirements, the number of seats in the European Parliament, the number of Commissioners in the College, the new voting mechanisms in the Council, and the raising of unanimity requirement in EU foreign affairs and so on might be the lack of a revamp of the toolkit when it comes to protection of Rule of Law and democracy in the Member States. I hope I am wrong, but we definitely will be able to see in the next couple of years how this EU reform, protection of democracy, and enlargement will take place. This is the most important, most strategic, and most crucial political triangle that the European Union has to face in the next decade. The transcript has been edited for length and clarity.