Orbán’s Illiberalism Tests the EU
After a dramatic power grab by the Hungarian prime minister, will the European Union finally stand up against the nation’s slide into autocracy?
ON MARCH 30th, the Hungarian parliament, in which Prime Minister Viktor Orbán’s Fidesz Party holds a supermajority, granted Orbán the power to rule by decree—indefinitely—in response to the escalating coronavirus crisis. While Hungary under Orbán has long been on an authoritarian trajectory, the prime minister and his allies have worked diligently to give their consolidation of power a veneer of democracy and constitutionality. This time is different. Orbán appears to have dropped any pretense of democratic accountability, suspending parliament and enforcing draconian punishment of those deemed to have impeded his government’s handling of the pandemic. “It is no longer a democratic, constitutional, legal government,” said Kim Lane Scheppele, a legal scholar, Hungary expert, and professor at Princeton University. “This is Orbán, with no constraints.”
Orbán’s acquisition of new, sweeping emergency powers has further strained his already tense relationship with the European Union. He has emerged over the past decade as one of the EU’s leading antagonists from within its ranks—a position he seems to relish—breaking from EU norms and consensus on issues from immigration to corruption to respect for the rule of law. In 2014, Orbán declared his ambition to construct an “illiberal state” in Hungary, a project he has steadily pursued up to the present, even as Hungary remains part of the expressly liberal political and economic union, whose charter stresses “the indivisible, universal values of human dignity, freedom, equality and solidarity.” Alongside Jarosław Kaczyński, chairman of Poland’s ruling Law and Justice Party, Orbán has vowed to carry out a “cultural counter-revolution” with the aim of radically transforming the EU.
And yet the EU has done little to impede Orbán’s illiberal project. Neither Orbán nor his party have faced any serious consequences for systematically dismantling Hungary’s constitutional democracy. The center-right European People’s Party (EPP), the European parliamentary grouping to which Fidesz belongs, suspended Fidesz last May, but has so far failed to expel them. And although the European parliament voted to trigger formal sanctions proceedings against Hungary in December 2018, Hungary will almost certainly not face any actual sanctions, due to the presence of Poland among the voting bodies. This remains the case even after Orbán’s latest power grab: the EU’s response, at least so far, has been characteristically weak. Orbán’s rise, and the EU’s failure to stop it, have revealed the dangers of the EU’s institutional limits. Just as dangerous is the European center-right’s refusal to unequivocally reject Orbán’s brand of xenophobic authoritarianism. Hungary’s most recent, dramatic turn toward illiberal autocracy, embodied in the March 30th legislation, which critics call the “Enabling Act,” presents a test to the EU: will it act to defend its most fundamental values, or will it continue to tolerate a threat to those values from within its borders?
The Enabling Act did not simply give Orbán the power to rule by decree. Orbán will also be able to suspend existing laws and implement new ones. Referenda and by-elections—necessary, for instance, to replace an ill or incapacitated member of parliament—have been canceled as long as the state of emergency remains in place. The law also creates two new crimes: publishing “false” or “distorted facts” that interfere with the “successful protection” of the public is punishable by up to five years in prison; interfering with the government’s response or breaking mandatory isolation orders are also punishable by up to five years in prison, and up to eight if it results in a person’s death. Both will likely be used to punish critics of the government’s response to the crisis and to clamp down on freedom of the press, Scheppele told me. “This is a totally different magnitude of repression,” she said.
Other aspects of the Orbán government’s response to the pandemic have been similarly unprecedented. Hungarian military officers have been deployed to civilian hospitals, ostensibly to coordinate the distribution of supplies. The military has sent “control teams” to some 150 companies “to ensure secure operations” of telecommunications, transport, and healthcare. And police and military presence has been increased across Hungarian towns and cities.
But while Orbán’s new emergency measures may appear unique in their extremity, they are, in fact, the culmination of a long-term process of democratic backsliding. Since 2010, when he was sworn in as prime minister with a two-thirds majority in parliament, Orbán and his Fidesz party have methodically restructured Hungary’s political system to guarantee their hold on power. In 2011, Orbán introduced a new constitution, which was quickly ratified by the Fidesz-dominated parliament. The new constitution crippled the independence of the judiciary, limited its jurisdiction, and enabled Orbán to pack the constitutional court with Fidesz loyalists. The Fidesz-led government redrew parliamentary districts, systematically gerrymandering them in order to limit the power of opposition parties. Orbán extended Fidesz control over other state institutions, like the Media Authority and the State Audit Office, which he then used to attack independent media, political opposition, and civil society groups. Even before the “Enabling Act” further cemented Orbán’s power, an estimated 90% of Hungarian media was directly or indirectly controlled by Fidesz, the electoral playing field was tilted strongly against the parliamentary opposition, and any meaningful checks and balances to Orbán’s power had been dismantled.
“Democracy in Hungary was already dead,” said R. Daniel Keleman, a professor of political science and law at Rutgers University. But while Orbán and Fidesz typically have sought to present themselves as democrats, careful to give even the most dramatic consolidations of power the appearance of legality, “this is kind of a step change,” Kelemen said. Orbán and his Fidesz allies have overstepped clear constitutional and procedural requirements, not only in the scope of the powers assumed by Orbán, but also in the process by which they were acquired—for example, emergency statutes continued to be issued even after the first coronavirus-related state of emergency had expired on March 26th. Previously, Scheppele told me, Orbán and Fidesz had been “careful to do everything by the book. They could have written the book yesterday, but at least there [was] a book. And now there’s no book.”
Even in the face of such a blatantly autocratic move, the EU has failed to take meaningful action against Orbán or his party. On March 31st, one day after the passage of the Enabling Act, Ursula von der Leyen, president of the European Commission, issued a tepid warning, which mentioned neither Hungary nor Orbán by name, stressing the “utmost importance that emergency measures are not at the expense of our fundamental principles and values” and calling on EU member states to “uphold and defend” those fundamental values of “freedom, democracy, the rule of law and respect for human rights.” The next day, a group of 13 EU countries, led by the Netherlands, issued a slightly more forceful joint statement that expressed deep concern “about the risk of violation of the principles of rule of law, democracy, and fundamental rights”; this statement, too, failed to mention Hungary or Orbán directly.
Such a muted response is characteristic of the EU’s handling of Orbán’s rise. “Orbán has not faced any serious trouble from the EU in the last ten years,” explained Gábor Halmai, an international legal scholar and former advisor to the president of the Hungarian Constitutional Court. Of the few measures the EU has taken—such as triggering the formal sanctions proceedings against Hungary—Halmai added, “None have had any effect on slowing the development of ‘illiberal democracy,’ as Orbán likes to call it, towards a much more autocratic system.”
Part of the EU’s failure to act is a result of structural limitations and a lack of foresight. “They don’t have a lot of tools and they don’t have a lot of law for confronting a situation like this. And the one thing the EU hates is improvising law,” Scheppele said. “They assumed that when you let in states that are democracies, they stay democracies.” The proceedings triggered by the EU in 2018 that would open the door to suspending Hungary’s EU voting rights—known officially as the Article 7 procedure—requires a unanimous vote, which Poland, facing a similar threat of sanctions, is almost guaranteed to block. Poland’s ruling Law and Justice Party has taken steps similar to Fidesz’s toward stripping the judiciary of its power and independence and transforming the country into an “illiberal democracy.”
But part of the failure is more straightfowardly political—the result of the European center right’s refusal to make Orbán’s brand of xenophobic authoritarianism anathema. “The center right has a choice to make,” Kelemen told me. “Too many have been willing to have Orbán as their pet autocrat.” In an article published in The Washington Post last December, Keleman compared the European People’s Party’s unwillingness to expel Fidesz to the United States’ Democratic Party’s support for, and reliance on, one-party authoritarian regimes in the Jim Crow South. “In just the same way,” he wrote, “Europarties have incentives to protect authoritarian state leaders who belong to their parties and deliver them votes and seats.”
Indeed, though Orbán and Fidesz are often portrayed as an authoritarian challenge from the EU’s ideological periphery, they have drawn their strength from the heart of Europe’s political mainstream. While German Chancellor Angela Merkel has portrayed herself as the defender of the rule of law in Europe, her own Christian Democratic Party (CDU) is, like Fidesz, part of the EPP, and some members of the CDU are among Orbán and Fidesz’s defenders. In particular, European Commision President von der Leyen, who is also a member of Merkel’s CDU, relied on Fidesz support to win office and has impeded attempts to sanction the party. On April 2nd, a group of a dozen center-right European party leaders sent a letter to Donald Tusk, president of the EPP, demanding that Fidesz be expelled in light of Orbán’s recent assumption of unchecked power, yet neither Merkel’s powerful CDU nor France’s center-right Les Républicains were among the signatories.
For Bini Guttman, president of the European Union of Jewish Students (EUJS)—which was among the first European organizations to condemn Orbán’s expanded emergency powers—the current moment is a true test of the EPP’s values. “The EPP is supposed to be this center-right, centrist, fundamental block in the European Union,” Guttman said, speaking from Vienna. “Now it has a member, though [currently] suspended, that has turned Hungary into a dictatorship.” If the EPP fails to expel Fidesz, Guttman said—a failure he considers likely—then “their values are really meaningless.” The same can be said of the EU, Guttman added.
Yet beyond expelling Fidesz from the EPP or proceeding with the suspension of Hungary’s voting rights in the European Parliament and Council, the EU has few tools at its disposal. It does have the ability to withhold EU funding to countries that flout rule-of-law norms, but against the backdrop of the pandemic and economic crisis, slashing funds to Hungary—the largest recipient of EU money on a per capita basis—could be seen as especially draconian, and could very well provide Orbán with more ammunition to use against the EU.
So far, Orbán has shown little sign of backing down or changing course. “With all due respect, I have no time for this!” Orbán wrote to EPP Secretary General Antonio López-Istúriz White, in response to the growing calls from within the EPP to expel his party. He added, “I am ready to discuss any issue once this pandemic is over.” But after previous power grabs, Orbán has proven adept at holding onto his expanded authority while offering nominal concessions in the face of criticism—a tactic that he has publicly called the “dance of the peacock.” “He won’t back down all the way,” Scheppele told me. “He never does.”
Joshua Leifer is a Jewish Currents contributing editor and a member of the Dissent editorial board. His essays and reporting have also appeared in The Guardian, The Nation, Jacobin, +972 Magazine, and elsewhere. He is currently working on a book about American Jewish identity. He lives in New Haven, CT, where he is a history PhD student.