Institutional Inequality and Democratic Backsliding in Post-Communist Countries

Institutional Inequality and Democratic Backsliding in Post-Communist Countries Florin N. Fesnic Babeş-Bolyai University Cluj & University of Bucharest fesnic@democracycenter.ro I compare the role of some important institutional and societal determinants of democracy in three post-communist countries, Hungary, Romania, and Poland, focusing on the role of political institutions. I argue that the severe democratic backsliding that we witness in Hungary since 2010 is largely an effect of institutional design (I call this institutional inequality - e.g., gerrymandering, overrepresentation of pro-fidesz rural districts, facilitating the vote of pro-fidesz diaspora in neighboring countries, while limiting the right to vote for Hungarian migrants, less inclined to support Fidesz). Nonetheless, this is not just the effect of institutions; it is the interactive effect of institutional inequality and societal factors. For instance, in the last legislative election (2014), the diaspora gave Fidesz the extra seat it needed for a two-thirds majority in the legislature, and then Fidesz used this to further its agenda (including further constitutional revisions). In contrast, Romania s relative democratic stagnation can also be explained as the result of an interaction between political institutions (institutional equality) and more favorable societal conditions (a more active and pro-democratic civil society, including the diaspora, which played an important role on several occasions, including its last presidential election in 2014). Therefore, the contribution of this paper is not merely to offer a list of institutional and societal factors that play an important role in democratization, but also discussing how their interaction can turn either into a vicious circle (Hungary) or a virtuos one (Romania). In the light of this analysis, I also discuss the most recent developments in Poland, where some measures taken by the new conservative government bear a striking similarity with the institutional changes promoted earlier by Orbán s government in Hungary. Prepared for presentation at the 24th World Congress of Political Science (Poznan, Poland) This work was supported by the CNCSIS-UEFISCSU grant PN-II-RU-TE- 2014-4-2851

What makes democracy work? Without being exhaustive, we can consider the role of institutions (e.g., the type of electoral system; whether the regime is parliamentary, presidential, or in-between; or the role of the Constitutional Court), the strength of civil society, or the role of external actors (e.g., in the case of European countries, the influence of the European Union). In this paper I assess the influence of these factors in the evolution of democracy in recent years in three post-communist countries: Hungary, Romania, and Poland. In each of these three cases, we have witnessed attempts from the governing party (in Hungary and, more recently, in Poland), or the governing coalition (in Romania, in the summer of 2012) to alter significantly the institutional structure of the polity, with potential consequences for democracy. In Hungary, the attempt was largely successful; in Romania, less so (at least, for the time being). Finally, in Poland, while it may be too early to assess the end result, we can already see similarities between what PiS is trying to achieve and what Fidesz has done since 2010. The puzzle: Democratic backsliding in Hungary versus democratic floundering in Romania For the most part of the last twenty years, Hungary had a better democratic performance than Romania. Things started to change quite dramatically in the last few years. A decade ago, Hungary s Freedom House scores for political rights (Figure 1) and civil liberties (Figure 2) were significantly better than Romania s; right now, they are slightly worse. Finally, Poland s scores ten years ago were comparable to Hungary s; however, unlike in Hungary, they have stayed relatively steady. Nonetheless, in the light of recent developments, they may be getting worse as well. Figure 1. The evolution of Freedom House Political Rights scores, 2003-2016 Data source: Freedom House

Figure 2. The evolution of Freedom House Civil Liberties scores, 2003-2016 Data source: Freedom House These developments are rather puzzling in the light of what scholars have predicted in the early years after these three countries transition to democracy; their predictions, up until recently, appeared vindicated by Hungary, Romania and Poland s democratic evolutions. For instance, in Linz and Stepan s (1996) typology of post-communist regimes, Hungary and Poland s chances for developing into full-fledged democracy were much better than Romania s. Even though Kitschelt s et al. s (1999) typology of regimes was different, the consequent predictions for prospects of democracy were similar to Linz and Stepan s. Throughout the 1990 s and 2000 s, the evolution of democracy in the three countries appeared to fully vindicate these predictions. However, this is no longer the case. In what follows I offer a discussion of some possible (and plausible, though obviously not exhaustive) factors that may explain why. Solving the puzzle: The role of institutions, civil society, and external factors I argue that institutional, societal, and external factors play an important role in explaining the divergent (and unexpected) democratic trajectories of the three countries in the last few years. Moreover, in some cases the effect of these variables is interactive, reinforcing one another in creating either vicious circles (like in Hungary) or virtuous ones (like in Romania). Finally, the role of random chance should not be underestimated, either a point that I will return to. Table 1 presents the list of variables that will be discussed in the remainder of this paper.

Table 1. Institutional, societal, and external determinants of democracy Hungary Romania Poland Institutions Constitutional Court +? Electoral system +? Society Civil society 0 + (+) Diaspora + ( ) Foreign influence TAN s party affiliation (GAL/TAN) + ( ) The meaning of the signs is intuitive: a plus ( + ) sign denotes a positive impact of that variable on democracy, while a negative ( ) denotes the opposite. A zero ( 0 ) denotes little/no impact, a question mark (? ) indicates that it is too early to tell what the impact is/will be in the near future, while parentheses ( () ) indicate ambiguity. Constitutional Court A powerful Constitutional Court has the potential to play a significant role in democratic consolidation. We do, in fact, have recent examples, some positive (as in Romania), others negative (as in Hungary). Thus, it is no wonder that powerful political players, especially those with a rather questionable commitment toward democracy (Fidesz in Hungary, PiS in Poland, or the former Social-Liberal Union, dominated by the PSD, in Romania) are trying, or have tried, to influence its work. In Romania, the Constitutional Court has played an important role, in recent years, in preventing the abuses of the governmental majority. Some significant examples in this respect are offered by the USL (Social-Liberal Union) s unsuccessful attempt, in Spring 2012, to change the electoral law from proportional representation to a purely majoritarian system the Constitutional Court found the new law unconstitutional. This was followed soon (Summer 2012) by the USL s attempt impeach the former president Băsescu using rather shaky legal justifications. Even though the opinion of the Court on these justifications was not binding (it did not consider that the president had breached the constitution), it ruled, nonetheless, that the 50% turnout for the referendum was necessary this was a legal provision that the USL tried to circumvent (Pop-Elecheş 2013; 2014). In Hungary, where the constitution is easier to amend than in Romania, the Constitutional Court was designed as a very powerful and respected institution in order to guard the constitutional order. Things changed dramatically after 2010: the constitution was altered repeatedly and dramatically, a process that was paralleled by a significant decrease in the role of the Constitutional Court, which was also packed with Orbán loyalists (Fukuyama 2012; Scheppele 2014). What we have witnessed in recent months bears striking similarities with the Hungarian scenario: the new PiS majority refused to appoint five constitutional judges designated by the previous government, and then enacting legislation to curb the powers and influence of the Court, leading to an unprecedented warning from the EU executive that such measures endanger the rule of law (Ranking & Duval Smith 2016).

The electoral system Most scholars of electoral systems consider that proportional representation systems are better for democracy: PR electoral systems are more democratic than majoritarian systems (Norris 2008: 130). This is even more so the case in emerging democracies; according to Birch (2005: 281), [majoritarian] electoral systems often do not provide viable mechanisms for the consolidation of democracy. Moreover, Birch s research (2008) also indicates that the use of majoritarian electoral systems encourage electoral malpractice. In all three countries, parties or electoral coalitions with dubious democratic credentials have attempted to change the electoral system in a majoritarian direction. In Poland, the switch from party list PR to SMD plurality elections was, and still is, one of the key components of the right-wing Kukiz 15 s program, although the measure was also supported in the last by the liberals (PO) and, more recently (in 2015) by then-incumbent president Bronisław Komorowski, representative of the PO. The change was widely supported by the Polish electorate in a referendum held last fall (about 79% in favor), but turnout (less than 8%) was well below the necessary 50%+1 legal threshold (Mussel 2015; Szczerbiak 2015). In Romania, the Socialist-Liberal USL changed the electoral law in 2012, from a peculiar form of SMD-based PR to SMD plurality, but the new electoral law was struck by the Constitutional Court which considered it to be unconstitutional (Romanian Constitutional Court 2012). In Hungary, Fidesz was more successful. It used a combination of gerrymandering, malapportionment, and shifting the balance between party list PR seats and SMD plurality seats in favor of the latter to give Fidesz a greater advantage. The success of these changes to the electoral law is revealed in Figure 3, which shows a comparison of seats-to-votes ratios in 2014 and 2010 (see Mudde (2014) for a nice in-depth analysis of the electoral reform in Hungary and its consequences). Figure 3. Seats-to-votes ratios in Hungarian parliamentary elections: 2010 v. 2014 Data sources: Hungarian National Election Office, <http://valasztas.hu/en/parval2010/index.html; http://valasztas.hu//en/ogyv2014/index.html>, accessed July 18, 2016.

Civil society Traditionally, Romanian civil society was not very strong, even judged by lenient, postcommunist standards. Nonetheless, scholars do note [the] encouraging development [of a] growing civic mobilization in traditionally more apathetic countries like [ ] Romania (Pop- Eleches 2013). To give just a couple (but notable) examples, in the Fall of 2013 we witnessed massive, weeks- (even months-) long public mobilization against the controversial mining project at Roşia Montană; then, more recently (November 2014), between the first and the second round of the last presidential election, we saw massive public protests across Romania as a result of the poor organization of the vote in diaspora. Last, but certainly not least, Prime Minister Victor Ponta was forced to resign last November as a result of another round of protests. This is in stark contrast to Hungary, where civil society is under assault by the government see, for example, the raids against the Norway Grants (Norway Mission 2014), or the discriminatory Church Law (CERF 2013). Clearly, though, Poland provides the best example of a strong civil society among the three cases as illustrated, most recently, by the emergence of the Committee for the Defence of Democracy (Komitet Obrony Demokracji - KOD). Nonetheless, it is unclear what its impact will be, at least in the short run. Diaspora Diaspora and its role in democratization offers another good example of the contrast between Hungary and Romania, not just in terms of the diaspora itself, but also with respect to the interaction of its effect with the effect of other variables, such as institutional/electoral design (the impact of this variable on Polish democracy is yet again less clear). The Romanian diaspora (concentrated in Western Europe) is significantly more liberal than the domestic citizenry. Overall, the Hungarian diaspora is significantly less liberal than the home population, although there is an important caveat here, the distinction between the historical Hungarian diaspora (concentrated in places like Transylvania and Eastern Slovakia) and the new diaspora (students, new working migrants) mostly in Western Europe. The latter group (less numerous) probably resemble the Romanian diaspora more than the historical Hungarian diaspora. Viktor Orban and his acolytes were fully aware of this, and the electoral legislation was skillfully adopted, facilitating distant (postal) voting for the historical diaspora (non-citizens), while making it more difficult for Hungarian citizens residing abroad (Figures 4 and 5). Figure 6 (where the domestic vote in the last parliamentary election is contrasted with just the Polish diaspora vote in the US) gives suggestive evidence that the Polish diaspora is more similar to the Hungarian, rather than the Romanian, diaspora).

Figure 4. Domestic versus diaspora vote in Romania: Second round of the 2014 presidential election, November 16, 2016 Data source: Romanian Central Electoral Bureau, Rezultate finale 16 noiembrie ( Final Results, November 16 ), <http://www.bec2014.ro/rezultate-finale-2-noiembrie-2014/>; accessed July 18, 2016. Figure 5. Domestic versus diaspora vote in Hungary: Parliamentary election, 2014 (party list vote) Data source: Hungarian Electoral Bureau, <http://www.valasztas.hu/dyn/pv14/szavossz/hu/orszlist.html>; Accessed July 18, 2016.

Figure 6. Domestic versus diaspora* vote in Poland: Parliamentary election, October 25, 2015 Data source: Radio Poland, PiS sees resounding success among Polish diaspora in US, <http://thenews.pl/1/10/artykul/226335,pis-sees-resounding-success-among-polish-diaspora-in-us>; Accessed July 18, 2016. Foreign influence ( party affiliation ) All three countries are members of the EU. Therefore, the variable EU influence appears to be a constant (i.e., a non-variable). Nonetheless, Sedelmeier (2014) offers an intriguing take on this issue: namely, it is not just membership of a country per se that matters; what truly matters is the nominal membership of the major illiberal bloc in that country, and its relationship with the GAL/TAN position with its ideological patrons at the European level. More specifically, this means that the Conservative Viktor Orbán and Fidesz were less constrained in their actions in comparison with Victor Ponta and PSD (and, arguably, the Polish PiS was, at least until recently, even less constrained than Fidesz). That is to say, European Socialists (and European Liberals), such as the German or French Socialists, are more GAL (Green/Alternative/Libertarian) than European Conservatives (such as the German CDU or the French UMP), and arguably even more so in comparison to the British Conservatives. Consequently, the Romanian illiberals (the PSD) paid a higher political cost than the Fidesz or the PiS when for similar political actions. Tentative conclusions This paper offers some tentative considerations about a few variables which, in my view, can be considered as explaining, in large part, the surprising divergent democratic trajectories that three post-communist polities (Hungary, Romania, and Poland) had in the last few years. My claim is that it is not just the impact of individual variables, such as the impact of electoral system, or the role of the Constitutional Court, that should be considered. Equally important it is the interaction between these variables. For example, the changes in the Hungarian

electoral law (the diaspora vote) law gave Fidesz an extra seat in the parliamentary 2014 election; this extra seat was exactly the one seat Fidesz needed to get a two-thirds majority in the legislature in order to enact further constitutional changes. It is also important to consider the role of idiosyncratic factors, which may nonetheless go a long way in explaining why polities go along a liberal or illiberal path. In Poland, one such factor may be the decision of the Socialists to run, in last parliamentary election, as a member of a coalition, rather than an individual party. The United Left coalition received 7.6 percent of the vote, well above the five percent threshold for political parties, but less than the eight percent threshold for political coalitions. Most likely, had the Socialists run as a party, they would have still got more than five percent; if that were the case, the PiS would not have got an absolute majority, and the fate of Polish democracy might have been different.

Bibliography Fukuyama, Francis. 2012 (January 23). Do Institutions Really Matter? The American Interest, <http://www.the-american-interest.com/2012/01/23/do-institutions-reallymatter/>. Fukuyama, Francis. 2012 (February 6). What s Wrong with Hungary? The American Interest, <http://www.the-american-interest.com/2012/02/06/whats-wrong-with-hungary/>. Kitschelt, Herbert, Zdenka Mansfeldova, Radoslaw Markowski, and Gabor Toka. 1999. Post- Communist Party Systems: Competition, Representation, and Inter-Party Cooperation. Cambridge University Press. Linz, Juan J., and Alfred Stepan. 1996. Problems of Democratic Transition and Consolidation: Southern Europe, South America and Post-Communist Europe. Johns Hopkins. Mudde, Cas. The 2014 Hungarian Parliamentary Elections, or How to Craft a Constitutional Majority. The Washington Post, April 14, 2014. <http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/04/14/the-2014-hungarianparliamentary-elections-or-how-to-craft-a-constitutional-majority/>. Norris, Pippa. 2008. Driving Democracy: Do Power-Sharing Institutions Work? Cambridge: Cambridge University Press. Pop-Eleches, Grigore. 2013 (Winter), Learning from Mistakes: Romanian Democracy and the Hungarian Precedent. APSA European Politics and Society Newsletter, pp. 9-12. <https://higherlogicdownload.s3.amazonaws.com/apsanet/887e5df8-0982-4d77-8a9acb5ed1307de9/uploadedimages/newsletters/epsnewsletter_w2013.pdf>. Pop-Eleches, Grigore. 2014. Authoritarian Backsliding in Eastern Europe Achievements and Prospects. Prepared for the conference Whither Eastern Europe? Changing Political Science Perspectives on the Region, University of Florida, 9-11 January. Rankin, Jennifer, and Alex Duval Smith. 2016. Poland gets official warning from EU over constitutional court changes, The Guardian (June 1), <https://www.theguardian.com/world/2016/jun/01/poland-gets-official-warning-from-euover-constitutional-court-changes> Romanian Constitutional Court. 2012. <https://www.ccr.ro/comunicate/comunicat-de- PRES-287> Szczerbiak, Aleks. 2015. What does Paweł Kukiz s election success mean for Polish politics? The Polish Politics Blog (May 14), <https://polishpoliticsblog.wordpress.com/2015/05/14/what-does-pawel-kukizs-electionsuccess-mean-for-polish-politics/> Scheppele, Kim Lane. 2014 (May 26). Hungary and the End of Politics: How Victor Orbán launched a constitutional coup and created a one-party state. The Nation, <http://www.thenation.com/article/179710/hungary-and-end-politics#> Sedelmeier, Ulrich. 2014. Anchoring Democracy from Above? The European Union and Democratic Backsliding in Hungary and Romania after Accession. JCMS: Journal of Common Market Studies 52, 1: 105 21. doi:10.1111/jcms.12082.