When Democrats Govern Undemocratically: The Case of Poland
cnichols@hudson.org
Tue, 02/18/2025 – 10:17

SVG

Commentary

Feb 18, 2025

When Democrats Govern Undemocratically: The Case of Poland

Matthew Boyse

Senior Fellow, Center on Europe and Eurasia

Peter Doran

Adjunct Senior Fellow, Foundation for Defense of Democracies

Matthew Boyse & Peter Doran

Caption
A view of the Presidential Palace and the Prince Jozef Poniatowski Monument in Warsaw, Poland, on October 23, 2023. (Jakub Porzycki/NurPhoto via Getty Images)

Toggle Table of Contents

Contents

Twitter

Facebook

E-mail

Executive Summary

A specter continues to haunt Europe, one that many thought was long resolved: the debate over what constitutes democratic government and acceptable behavior in twenty-first-century democracies. These questions apply to several European Union member states but have been particularly contested with regard to Poland. The debate is nasty and deep as the governing center-left Citizens Coalition (KO)—led by its largest party (Civic Platform [PO]) and Prime Minister Donald Tusk—charges the right of center Law and Justice (PiS) with violating key tenets of democracy, the rule of law (ROL), and media freedom. PiS, led by former Prime Minister Jaroslaw Kaczynski, responds that these charges have been misleading or false and that the current government itself is guilty of excesses on these very issues.

What is this all about, and who is right? Weren’t these questions settled long ago? No, not really. There is more than one valid view on this nexus of issues, both regarding the period Law and Justice governed Poland (2015–23) and since Civic Coalition took office in December 2023. These issues are more complex and nuanced than prevailing narratives about “democrats” and “illiberal, far-right” politicians.

One year after returning to power, the KO-led coalition government continues to argue that its victory in the October 2023 parliamentary elections resolved these debates, indeed that it “saved democracy” by defeating the “far right” Law and Justice. Since then, the KO government has taken strong steps to “restore the rule of law,” “reestablish the constitutional order,“ and reverse other changes PiS made during its terms in office that, it argues, were turning Poland into an autocracy, or authoritarian populist state. The government even goes as far as to float formal delegalization of PiS and compares the current situation with post-Nazi Germany or post-war Yugoslavia. KO charges PiS with continuing to block its noble efforts and perpetuating “illiberalism” via the presidency and judiciary.

The Biden administration, including former United States Ambassador to Poland Mark Brzezinski, the European Commission, as well as most journalists, think tanks, and pundits accepted the KO narrative uncritically and adopted its language.

This debate is valuable because it has flushed into the open important questions that have major political ramifications. For example, how much control does the EU have over how member states organize their societies? Is only the European Commission’s interpretation of “democracy” acceptable, or are variations permitted that stay within certain boundaries? Where and to what extent does EU law have primacy over national law? Where exactly is the line between what the European Union treaties prescribe and member state sovereignty? Can the treaties supersede national constitutions—a question raised not only in Poland, but also in other EU countries? Can a government seek to have media in its country owned by firms from its own country without being accused of being “nationalist”? Does the EU have jurisdiction over member state judiciaries such that it can prescribe exactly how each is organized? How are the European treaties being applied elsewhere across the bloc?

KO has framed this debate according to its interpretation while PiS has a different one. This difference introduced friction into Poland’s relations with the Obama and Biden administrations, both of which held PiS politicians at arm’s length, even as bilateral ties remained strong. It also harmed Poland’s relationship with the EU, as the European Commission, European Court of Justice, and the European Court of Human Rights named and shamed the Szydlo and Morawiecki governments (2015–23) and launched Article 7 proceedings, going so far as to withhold some 137 billion euros from the Covid-related Recovery and Resilience Facility and the Cohesion Fund because of concerns over the judiciary and ROL. This reinforced euro-skepticism in Poland and other EU member states as politicians took notice and some challenged EU interpretations, feeding a reaction—a.k.a. “populism,” “illiberalism,” or worse.

There is not only one valid position on these differences. For example, if PiS attempts to bring media under Polish ownership violate media freedom, does the same not apply to other democracies like Canada and France, which allow no more than 20–25 percent of media to be foreign-owned? Can Warsaw not try to “re-Polonize” media in the country, most of which were sold to foreign firms after 1989 when its economy was unusually weak? If KO accuses PiS of politicizing state media, what are observers to make of the fact that Polish media throughout the post-1989 period were made to reflect the views of the government in power—and do so now under PO as well—on the principle cuius regio, eius telewizja?

If KO argues that it must “restore the constitutional order” because PiS-appointed judges in the Constitutional Tribunal are aligned with its views, would that not also require restoring the rule of law in the United States, where judges have been appointed politically since the early years of the republic? If Polish judges are unfit for office because of their association with a political party, what are we to think about the president of the German Constitutional Court, who was vice chair of the Christian Democratic Union Caucus in the Bundestag until just before his appointment to the court in 2018?

These issues can be very technical, are not widely understood, and bear further examination and debate. Honest answers are key for the future of freedom and democracy in Poland and beyond.

Our analysis leads to several conclusions:

Fears about the demise of Polish democracy during 2015–23 have long been exaggerated. The 2023 election outcome would have been very different if the state had become an “autocracy,” was “authoritarian,” or was “captured” as critics asserted. Poland was hardly an autocracy then, and the democracy gene has been alive and well in the vibrant Polish polity throughout the entire post-1989 period. However, since taking office, the KO government has been taking dubious, if not illegal, steps under the guise of “restoring democracy,” many of which bear close resemblance to those of which it accused the PiS government.
Not all the charges leveled against the Szydlo and Morawiecki governments are incorrect, but they are selective and inconsistent and paint with far too broad a brush. There was cronyism, but this has applied to earlier Polish governments, including those PO-led in 2007–15. PiS governments deployed Pegasus spyware, but the Tusk government has so far been unable to prove that it did so without due process, and the surveillance happened in other EU member states. PiS governments did seek to return foreign-owned media to Polish control, but other democracies (e.g., France and Canada) also are “nationalistic” about who owns media companies in their countries. PiS governments did discriminate against TVN, now owned by the US firm Warner Bros. Discovery—but the dispute was resolved via quiet diplomacy. Even staunch PiS critics admit TVP (Telewizja Polska S.A.) under KO leadership has not escaped political interference and is entangled with its politics. Poland’s media landscape is vibrant and dynamic, but its public TV has tended to follow the cuius regio, eius telewizja principle since 1989. PiS governments were hardly alone in how they approached EU-related issues, as observers can now see with KO opposing EU asylum policy. Major institutions like the Venice Commission have sided against PiS on actions that KO asserts violate ROL and also with PiS on other issues. This is not to dismiss these issues, but the narrative that the KO government consists of democrats and PiS of would-be autocrats is simplistic and inaccurate.
To examine the context, complexity, and contradictions in these issues is not whataboutism. The EU was selective in singling out PiS for particular opprobrium and punishment, and has not often pursued similar issues with other member states to the same degree. The Obama and Biden administrations judged PiS governments more harshly because of their more traditional and conservative approach to public policy (e.g., migration and abortion) and insistence on maintaining control over issues where the EU treaties leave some room to member states (e.g., judiciary). It is difficult to avoid the conclusion that critics judge Polish politics by progressive standards and a government’s willingness unquestioningly to implement every EU initiative, including those about which there are valid differences of opinion.
Since taking office in December 2023, the KO-led coalition government has embarked upon a campaign of lawfare and criminalization of political differences, the goal of which is to ensure PiS never again represents a serious challenge to its power. KO has crossed the line with its “iron broom” approach to addressing these issues. The term PM Tusk has coined for this effort—“demokracja walczaca” (militant democracy)—recalls a Solidarity-era anti-communist group headed by former PiS PM Mateusz Morawiecki’s father and justifies using almost any means to go after opponents. Some Polish commentators link the term to the 1930s German concept of streitbare Demokratie used by Karl Loewenstein to describe actions deemed necessary to oppose the Nazi Party, suggesting that members of the current government see PiS as no better than Nazis and that the situation in Poland can be compared to the Nuremberg Trials. Some in KO advocated for “depisizacja,” which recalls the term dekommunizacja, a concept by which all communists would have been removed from their positions and not allowed to take positions of influence had it been carried out after 1989. Still other KO leaders have used the term dezintegracja to mean they would break apart PiS in an effort to neutralize it. KO politicians say publicly that Poland is at a special moment that justifies extraordinary measures to restore the constitutional order. This has led even critics of the government to question whether Tusk will “be an autocrat in order to reform the country.” It has also led to serious and undemocratic abuses of power.
The case of Poland can help us to decide how issues like media freedom, the rule of law, and democratic governance should be understood in the twenty-first century. Framing them simply as “a struggle for democracy” is unsatisfactory given policy and legal disagreements—and a lack of consensus over what the term democracy means in the first place. One camp defines the term essentially as liberal democracy, arguing that only a country that checks all the progressive boxes is really a democracy. The other camp tends to use terms like liberty, ordered liberty, freedom, republic, or democratic sovereignty, reflecting a conservative or traditionalist understanding. Meanwhile, Vladimir Putin’s Russia and Communist China are working overtime to undermine the concept and practice of democracy. This requires more debate to resolve differences between the two interpretations, which may involve accepting variations from the progressive understanding that—if these differences continue—will damage EU member state governments’ relations with voters and will harm the transatlantic relationship.
The decisive Republican victory in the November 2024 US elections and PM Tusk’s long-held critical views of President Donald Trump raise the stakes for the KO-led government on the US-Polish relationship. KO leaders are correct when they say US-Polish relations are and will remain strong, regardless of who is in power in both capitals, but the Trump administration is aware of KO’s clear preference for the Democratic Party and criticism of the president in the latest election cycle. President Andrzej Duda’s outstanding ties with the US president and PiS’s close ties with the Republican Party are a major asset for Polish foreign policy and the bilateral relationship. Further attempts by the KO-led government to try to destroy PiS will be noticed, which could cause it to lose influence in Washington to the detriment of Poland’s national interests and prestige as well as the bilateral relationship. Poland benefits from a strong opposition, and PiS represents a very substantial part of the electorate that buttresses the country’s national security goals and the North Atlantic Treaty Organization at a time of unprecedented challenges to the European security order and intensifying great power competition.