It’s Time to Hit Poland in the Pocketbook

With its latest move to purge the country’s Supreme Court and turn judges into political appointees, Poland’s ruling Law and Justice party has ramped up its assault on democratic checks and balances.

Buoyed by U.S. President Donald Trump’s recent visit to Warsaw — during which no mention was made of the nationalist party’s defanging of another major court, the Constitutional Tribunal, earlier this year or any of its numerous anti-democratic actions since winning power in 2015 — the government appears to have been emboldened to hasten its march toward authoritarianism.

Its latest parliamentary initiative, likely to be signed into law next week by President Andrzej Duda, would trigger the immediate dismissal of all of Poland’s current Supreme Court judges, except those the president decides should stay. Additionally, this month, the government decided that members of the National Council of the Judiciary — a body that picks all of the country’s judges — will now be selected by parliament, rather than by other judges as used to be the case. These moves together effectively hand politicians full control over the judicial branch, leaving the path clear for the ruling party to rest assured that whatever bills it passes will essentially be rubber-stamped by Poland’s most important courts.

The move prompted nationwide protests and renewed criticism from European Union officials, who have repeatedly castigated Poland’s ruling party for undermining democratic institutions and rule of law in the country since it came to power. The first vice president of the European Commission, Frans Timmermans, stated in a press briefing in Brussels that the changes “would abolish any remaining judicial independence and put the judiciary under full political control of the government.… Judges will serve at the pleasure of the political leaders, and be dependent upon them, from their appointment to their pension.” He warned that the EU’s executive is “very close” to triggering Article 7, a procedure assessing systematic threats to the rule of law and potentially triggering sanctions, including the suspension of Poland’s voting rights in the Council of the European Union. Were this to happen, it would set a major precedent and serve as a huge knock to Poland’s standing within the EU: No other EU country has ever been subjected to the process.

But sanctions require the consent of all EU members, and Warsaw’s European illiberal bedfellow in Budapest is likely to veto any such moves. Hungary’s autocratic prime minister, Viktor Orban, has already sent a letter of support to Warsaw expressing dismay that Poland was being “insulted and attacked by the European Commission.” And while the U.S. State Department expressed “concern” about the “Polish government’s continued pursuit of legislation that appears to limit the judiciary and potentially weaken the rule of law,” the White House is unlikely to come out strongly against arguably the most pro-Trump government in Europe.

The only player capable of nudging the Polish government to reconsider its assault on democratic institutions remains the European Union. But to get anywhere with Warsaw’s current authorities, the EU would need to show far more decisiveness in defending its values than it has so far. Right now, the Polish government simply doesn’t believe Brussels has the will or ability to carry out its threats. When, in July 2016, the European Commission issued Warsaw a three-month deadline to address threats to the rule of law or face potential sanctions, Jaroslaw Kaczynski, the ruling party leader and Poland’s most powerful politician, dismissively described the ultimatum as “amusing.” Indeed, nothing much came of it. The Polish government dismissed the European Commission’s recommendations as “political interference” and largely ignored them, leaving the EU only with its so-called “nuclear option” of Article 7.

As long as Kaczynski believes the EU is unable to take any action that could cost him politically, he will continue to ignore protestations at his party’s policies. And he is likely to go even further in dismantling any remaining checks and balances he views as standing in the way of his party assuming total control of the Polish state and its institutions. Kaczynski is adept at exploiting genuine public dissatisfaction with many aspects of the Polish state to justify actions he portrays as necessary to eliminate the corrupt “post-communist” system, with its complicit liberal elites, whom he points to as the root cause of all of Poland’s ills. For instance, a recent survey revealed that 51 percent of Poles have a generally negative opinion of their justice system, which they see as inefficient and, indeed, sometimes corrupt. Law and Justice therefore argue that its changes to the justice system will make courts more efficient and honest.

But the fact that many Poles are unhappy with their courts does not mean they approve of the specific changes Law and Justice is forcing through. Besides the thousands of people protesting on the streets, a poll released July 20 showed that 56 percent of Poles are against the government’s machinations with the Supreme Court, with only 22 percent in favor and 22 percent unsure.

The European Union owes it to this majority of Poles to deploy the only tool at its disposal realistically capable of getting Law and Justice’s attention: its purse strings. In the 13 years since it joined the European Union, Poland has received 135.7 billion euros in EU funds, an average of 10 billion euros a year, far more than any other member state. Considering Poland’s total budget revenue for 2017 is projected at 77 billion euros, it’s clear how significant a role EU funds play in state spending.

As long as that cash flow continues unhindered, Kaczynski and his party couldn’t care less what EU officials think about their actions. To them, Brussels is run by fanatical lefties who hate them because they are a conservative party. Their “you are with us or against us” attitude means they have scant regard for opposing opinions, whether from Poles or foreigners. This week, Kaczynski labeled Poland’s opposition “scum” during the parliamentary debate over his party’s Supreme Court legislation. They will not cease their authoritarian actions unless they perceive a high cost to not doing so.

Cuts in EU funding would force the Polish government to cut back its spending plans significantly, which would more than likely have a negative effect on planned infrastructure projects and the economy in general, a development unlikely to score Law and Justice many points with voters back home. Of course, there is the risk that Poland’s ruling party would dig its heels in and portray the country as being unfairly singled out for punishment by Brussels, further escalating the situation. However, in the long run, the public would be bound to start conducting a cost-benefit analysis of its government’s policies and their consequences, especially as this would be the first time since it joined the EU in 2004 that Poland’s funding would be affected.

In fact, such a move by Brussels is already being floated. This week, Vera Jourova, an EU commissioner, suggested cutting EU funds for Poland, saying, “If a country gets money from the EU, it has to respect the rule of law.… I can’t imagine German or Swedish taxpayers would want their money spent on creating some kind of dictatorship in another EU country.” While unanimous consent is needed for imposing sanctions on an EU member, budgetary negotiations are different: The biggest net contributors to the EU kitty — of which Germany is at the forefront — get a significant say in which of the net beneficiaries get how much, thus making funding cuts a credible threat in a way that sanctions are not.

Realistically speaking, significant cuts would likely be feasible only for funds slated to be allocated to Poland for the next budgetary period, starting in 2021. However, negotiations for the future budget are already underway, and Law and Justice could be made to start feeling some costs for its actions now to impel it think twice about its policies going forward. Hopefully, the mere credible threat of funding cuts would be enough to make the ruling party reconsider. The fact is, the louder the signals from Brussels of potential financial consequences for the government’s anti-democratic practices, the tougher the questions Law and Justice will face at home. Contrary to popular stereotypes of Poles as sentimental romantics, the average Pole is very pragmatic when it comes to pocketbook issues directly affecting them: They will not tolerate for long any government they see as costing them money or delaying potential development, were Brussels indeed to wield the financial ax against Warsaw.

Poland’s opposition politicians are well aware that the money argument is the only one capable of moving Law and Justice. They are, however, reluctant to voice this out loud; the ruling party would quickly label them “traitors” — colluding with foreigners to Poland’s disadvantage. Realistically though, without some decisive action from Brussels, Poland under Law and Justice will continue to drift further away from liberal democracy, further “backwards and eastwards” as Donald Tusk, European Council president and former Polish prime minister, described it. There is much more than money at stake here; after a quarter century of painstaking institution building after the collapse of communism, the very future of Polish democracy is on the line. The European Union needs to act now, for the long-term sake of Poland and for the sake of its own credibility.

Photo credit: ADAM CHELSTOWSKI/AFP/Getty Images