21 December 2011

Hungarian GOP-Clones Downgrade Their Democracy To U.S. Level

Paul Krugman has devoted several blog posts and a newspaper column in the New York Times to the political situation in Hungary.

Hard economic times have diminished popular support for democracy among the people of former Warsaw Pact member countries in Central and Eastern Europe (citing this Transition Report prepared by the European Bank for Reconstruction and Development.

In Hungary, where the electoral system made it possible for the center-right Fidesz party, which got 53% of the popular vote in the spring of 2010, allowing it to command 68% of the seats in parliament, making it possible for it to amend the constitution at will, a power that Fidesz has used liberally despite not having campaigned on a platform of radical constitutional reform.

The Fidesz Reform Compared To The American Democratic Standard

Many of the Fidesz reforms take "best democratic practices" provisions of the Hungarian constitution and legal system and replace them with less democratic American style practices, or in some cases, with provisions of the kind that are widely popular among U.S. Republicans, but have been thwarted, at least at the national level, politically or by the U.S. Supreme Court's interpretations of the U.S. Constitution. Here are some highlights from a guest post at Krugman's blog:

* Fidesz stripped the Constitutional Court of many of the powers it previously held (e.g. the power to review the constitutionality of laws in the abstract), leaving the Hungarian system of judicial review more anemic than the European norm and very similar to that of the United States where constitutional claims are subject to standing requirements that are particularly narrow in matters of public finance and must work there way through the court system rather than starting at the top. Fidesz also expanded the number of judges on the Constitutional Court and packed it with judges favorable to it.

* In another move to pack the judiciary, many sitting judges were forced out of office and will be replaced de facto life appointees hired by a new official appointed by their party:

The government lowered the retirement age for judges from 70 to 62, giving judges only a few months to adjust to their new futures. More than 200 judges will be forced to retire from the bench starting on January 1, including most of the court presidents who assign cases and manage the daily workings of courts. The new law on the judiciary requires that the Supreme Court president have at least five years of Hungarian judicial experience. The current president of the Supreme Court is disqualified because his 17 years of experience as a judge on the European Court of Human Rights do not count. Therefore, he must leave office on January 1 also. The law on the judiciary also creates a new National Judicial Office with a single person at the helm who has the power to replace the retiring judges and to name future judges.

This too has parallels to U.S. practice, which while it does not permit the removal of sitting judges from office, does allow for sudden expansions of the judicial ranks to allow the party in power to pack the courts.

* The same National Judicial Office which was given the power to appoint judges was also given "the power to move any sitting judge to a different court," and starting in 2012, "both the public prosecutor and the head of this new National Judicial Office to choose which judge will hear each case."

This step, in principle is unprecedented, in U.S. practice, although, in reality, choice of venue decisions made by prosecutors, intimate familiarity with how the process of assigning judges works, and the option of dismissing a case without prejudice if they don't like the judge and then refiling it gives prosecutors something closer to this ability in practice than is commonly acknowledged.

* Under the old political norms, "the five-member Election Commission to be politically diverse and for the government of the day to consult the opposition before nominating candidates." Now, the incumbents on that commission lose their offices following each new election, the winning party or coalition can (and in the case of Fidesz, has) appointed their own partisans to all of the seats on the Commission.

Thus, Hungary has retreated from the European norm of having non-partisan electoral administration to the American norm of having elections run by whatever partisan elected official prevailed in the last election. In the U.S. that official is typically called the Secretary of State at the state level and the County Clerk at the local level. There is no significant national level election administration in the United States.

* In a move that is classic in American politics, but unfamiliar to Europeans, Fidesz has gerrymandered the electoral districts in their favor; "using the new district boundaries [in the last three elections] . . . Fidesz would have won all three elections, including the two they actually lost."

* Fidesz has appointed partisan minded loyalists to posts in charge of "human rights, data protection and minority affairs", the "public prosecutor, the state audit office and, most recently, the Central Bank."

It is classic, American style, spoils to the victor political appointment politics.

* Content based media regulation has been instituted.

New "media laws created a new media board – staffed only by Fidesz party loyalists with a chair who is appointed by the Prime Minister to a nine-year term. This board can review all public and private media for their compliance with a nebulous standard of political “balance” and has the power to bankrupt any news organization with large fines. It is not surprising that the media have become self-censoring."

Basically, every media outlet in Hungary is now legally required to behave like Fox News. This is something that conservative Republicans in the U.S. can only dream of having, under constitutional law protections of the First Amendment freedom of the press that liberals and conservatives alike have upheld in the U.S.

* The party has enshrined conservative Christian social policy on abortion and gay rights and the status of the country as a Christian nation in the Constitution, despite the fact that only 21% of the population is religious, and limited official recognition of minority religions. Under the new constitution:

The fetus is protected from the moment of conception. Marriage is only legal if between a man and a woman. The constitution “recognize(s) the role of Christianity in preserving nationhood” and holds that “the family and the nation constitute the principal framework of our coexistence.” . . . a new law on the status of religion cut the number of state-recognized churches to only fourteen, deregistering 348 other churches.

In other words, the new Hungarian constitution pretty much matches the American Republican party platform on religious and social issues.

* Supermajority requirements that Fidesz has put in the constitution make it hard for their policies to be undone if the lose control of parliament.

The new constitution makes huge swaths of public policy changeable only by a two-thirds vote of any subsequent parliament. From here on, all tax and fiscal policy must be decided by a two-thirds supermajority. Even the precise boundaries of electoral districts cannot be changed by simple majority vote, but only by a two-third supermajority. If a new government gets a mere majority, policies instituted during the Fidesz government cannot be changed.

In other words, the Hungarian center-right party has created the equivalent of the filibuster powers of the minority in the U.S. Senate.

* They have given key political appointees long terms that could outlast their removal from office, subject only to impeachments by two-thirds majorities, much as the U.S. does for posts like the FBI director and the Federal Reserve:

The new constitutional order extends the terms of office for the public prosecutor (9 years), the head of the state audit office (12 years), the head of the national judicial office (9 years), the head of the media board (9 years), the head of the budget council (6 years) and more.

* They have based the GOP pipe dream of a balanced budget amendment with an institutional means of being enforced: "a national budget council with the power to veto any future budget that adds to the national debt, which any foreseeable budget will do. The members of the budget council have been chosen by this government for terms of 6 or 12 years and can only be replaced if two-thirds of the parliament can agree on new candidates when their terms are over. Another part of the constitution requires the parliament to pass a budget by March 31 of each year. If the parliament fails to do so, the president of the country can dissolve the parliament and call new elections."

Of course, in states like Colorado, similar substantive rules exist, although the institutional means of implementing those rules is a bit different, and most U.S. states have some form of balanced budget requirement often enforceable via a line item veto.

* The door has been opened to banning certain extremist political parties on theories similar to the McCarthy era anti-communist laws in the United States:

Under laws that preceded Fidesz’s election last year, political parties that are anti-constitutional may be banned. Some have suggested that Fidesz could eliminate [the Neo-Fascist] Jobbik [party] in this way.

It will also probably be made easier to prosecute communist era officials, and suppress the communist party, in a way that arguably and most troublingly opens the door to punitive sanctions of the main center-left opposition party arising from the Communist era regime:

According to a proposed constitutional amendment, the crimes of the former communist party will be listed in the constitution and the statute of limitations for prosecuting crimes committed during the communist period will be lifted. The former communist party is branded a criminal organization and the current opposition Socialist Party is designated as their legal successor. It is still unclear, legally speaking, what this amendment means. But it is probably not good for the major opposition party.


Opposition forces are not totally without a remedy.

Hungary is a party to a number of European treaties including the human rights regime of the Council of Europe which has the power to mandate Bill of Rights like protections for citizens of member nations, and these kinds of treaty obligations are not as easily ignored in Europe, where taking treaties seriously is a practical necessity, as it is in the United States where our legal system and constitution as interpreted are notoriously hostile to any form of international law, even when it is party to an international treaty.

Popular support in Hungary for the Fidesz party has also plummeted from a peak of more than 40% around the time of the last election to less than 20% now, although these voters now largely sit in the ranks of the "undecided" or "unaffiliated" rather than having cast their support to any of the other pre-existing major parties. And, in Hungary's electoral system, a drop in the popular vote for the Fidesz party would have a disproportionate effect on the number of parliamentary seats they win in the next election and could easily reduce the Fidesz party to less than a third of the seats in parliament if their unpopularity was sustained. The Fidesz party did not campaign on major entrenching constitutional reforms (and probably was surprised itself to get the majorities necessary to enact them).

Normally, securing two-thirds majority support for just about any kind of political change is extremely hard, but if Hungarian voters forcefully reject the direction Fidesz is taking Hungary's political system in the next election, it wouldn't be surprising if all of the other political parties in parliament could form a coalition united around promptly undoing some or all of the entrenching reformed enacted by Fidesz, which are a life or death threat to all of the other political parties in the country.

The kind of tactics Fidesz has engaged in parallel the anti-union overreaching that Republicans in Wisconsin engaged in when they took control there following the 2010 elections that produced a string of state legislator recall efforts, some successful, although not enough to immediately deprive Republicans of control of that state, and an effort to recall the Republican Governor with an unprecedented level of grass roots support(petitions will be submitted January 17, 2012 and there is a decent chance that they will have a sufficient number of signatures by then). Also, while the trend evidenced by the Fidesz reforms in Hungary are troubling and anti-democratic,I'm less inclined towards a "sky is falling" take on how they might work out in practice, because so many of those reforms represent an adoption of long standing U.S. political practice. They look so horrible mostly because the status quo in Hungary is so good. The reforms overwhelmingly adopt the most flawed components of the American political system, and some proposals that would have made the American political system even worse if adopted, but it isn't impossible to run a somewhat functional democracy on this basis. Also, while these reforms do appear to be entrenching many solidly conservative Fidesz officials in office, it doesn't appear to be the case that the appointees have flaws are any worse than being particularly partisan and conservative. The officials are not being entrenched with absolute control forever, a la the Ayatolla's theocrats in Iran, and do not appear to adhere to ideologies that are fundamentally at odds with the basic concept of multi-party democratic capitalism. These appear to be politically conservative reformers, not true revolutionaries or anti-democratic religious extremists or Nazis.

Fidesz wants to tip the odds in its favor for the short and medium term future and substantively bound the scope of the political discussion to ideologies that they deem acceptable, but they are basically chasing a shot at becoming a dominant party with decades of continous rule in the traditional of Japan's LDP or Mexico's PRI or FDR's Democratic party, rather than a fully authoritarian regime.

The fact that Fidesz has pulled this off, however, has troubling historical echos from Weimar Germany. Hungary's pre-reform constitution, like that of Weimar Germany, was a model of constitutional democracy. Hungary voters, like those of Weimar Germany, influenced by hard economic times, put the parliamentaries who are carrying out these reforms to the political system into office in free and fair elections and according to the legal process set forth in the validly adopted constitution, not by virtue of military force. But, ultimately Weimar Germany reached a point of no return that undid that democratic regime that it embodied and there is good reason to fear that history could repeat itself in Hungary.

In particular, the fear is that if the Fidesz reforms continue apace, and that neither European human rights institutions nor sharp voter backlash against Fidesz are quite strong enough to prevent the reforms from going to far for too long, that Hungary could reach a tipping point and take the few extra steps on the trendline it has already embarked upon towards a true right wing authoritarian regime.

If the reforms made so far by Fidesz are at least prevented from going any further and interpreted in ways that mute the worst slippery slope concerns they engender by enough Fidesz appointees who care enough about the overall welfare of a democratic state in Hungary to restrain their raw capacity to exercise political power at least somewhat, Hungary could settle into being a seriously flawed, but genuine democracy like the United States in due time.

But, if Fidesz can push much farther beyond the brink that it has already approached, and its appointees in key political positions aren't sufficiently fair minded in their exercise of the power that the reformed constitutional arrangements give them, the potential for Hungary to slip into becoming a conservative one party authoritarian state that ends up being a sort of mirror image of the one party Communist regime it was for several decades of the 20th century is very real and is deeply troubling for the future of Europe as a whole. And, without the kind of long standing democratic norms and political culture that the United States had in place for about a century in its capacity as a group of semi-autonomous British colonies, even before it established its current constitution in 1789, Hungary's odds of overcoming its current crisis of democratic government are not nearly high enough that we can be comfortable that it will all work out.

The United States and some European international institutions have expressed concern about the political developments in Hungary. Realistically, there isn't much that the United States can do about it, however, other than to express concern. As this post explains, most of the changes that Fidesz has put in place brings Hungary closer to the norms of the American system of government, and most of those that aren't a part of American politics have been regularly sought by one of the two main political parties in the United States, so the U.S. can't bring much moral authority to the situation at this point. European institutions have far more leverage in the situation, but in the end, it is hard to impose democracy on a public that isn't willing to use, at least, the formal legal and political rights that they have to preserve their democracy.

A preference for a Western European style democratic political system is not like a desire for food, water, clothing or shelter. It is a learned preference that has a lot of individual and collective utility if it is widely shared, but when you have an electorate who spent their formative years without that system, the public commitment to that system will not be as deep. People naturally gravitate towards thinking of what they know as what is just and right, and what most of the people of Hungary know is life under a one party authoritarian regime. People can change their preferences and new generations can develop preferences different from those of their predecessors. But, only time will tell if the Western European democratic political culture has taken hold firmly enough in the people of Hungary for its initially state of art democratic constitution to successfully facilitate permanent democratic government in Hungary in the face of economic hardship and shallow public commitment to it.

The optimist in me give some credence to the idea that the optimal level of democracy to produce a stable functional democratic system is the bare minimum necessary to earn the name democratic at all, and that beyond that additional democratic refinements add little benefit and may even be counterproductive. Hence, a system of democratic elections sufficiently great to make electoral politics more attractive than a military insurgency annd to make those who govern cognizant of the wishes of the governed is good enough, and extra bells and whistles, like initiative processes, proportional representation, and campaign finance reforms may do more harm, by making the process more complex, than they add in terms of the quality of the democratic process given that the bare minimum standards have been met.

The pessimist in me says that things are going from bad to worse in Hungary, and that is would be a crime to stand by and do nothing if there was anything we could do to prevent the current anti-democratic trend there from going too far. Perhaps that is why I am writing this post. But, I'm hard pressed to see anything that can be done, at least by Americans, that isn't already being done, or any room for a lasting solution that doesn't predominantly come from the Hungarians and perhaps institutions with which they have treaty relationships and obligations.

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