When States Go Rogue
How the US and EU Can Strengthen Democracy at Home to Bolster its Prospects Abroad
Political unions, like healthy marriages, require a fair bit of give and take. Interests, priorities, and values may diverge, but mutual understanding about lines never to be crossed is a must. In the United States and the European Union, some family members have lost sight of this basic principle of comity. They are probing how far democratic institutions will bend before they break.
In recent months, several American states have introduced restrictive voting measures, posing direct challenges to the 15th and 19th Amendments to the U.S. Constitution, which granted voting rights to African Americans and women, respectively. Across the Atlantic, Poland and Hungary are testing whether Article 2 of the Lisbon Treaty, which outlines respect for democracy and rule of law, is worth the paper it’s written on.
These frontal assaults on transatlantic norms pose a dilemma for policymakers in Washington and Brussels: Should they punish the transgressions and risk estrangement, or let them stand and risk further erosion of the pillars of Western institutions? In both cases, the levers to bring about a change in behavior exist, but the outstanding question is whether there is political will to use them.
Stop or I will say stop again
Poland and Hungary have developed a reputation for flouting the EU’s democratic obligations. In Warsaw, the incumbent Law and Justice Party (PiS) has spent the better part of the past five years dismantling key pillars of the rule of law in the country. The party has jettisoned judicial independence and overtly politicized the Supreme Court and Constitutional Court under the guise of reform. It has asserted de facto authority over judicial appointments through its governing majority in the national legislature. That majority has also passed the so-called “muzzle law”, through which the government can fire judges for rulings that are at odds with its interests and silence those who are critical of judicial reforms.
On the banks of the Danube, Prime Minister Viktor Orban has been eroding Hungary’s democratic institutions, in direct violation of the EU’s Charter of Fundamental Rights, since he embarked on his second stint in office in 2010. His efforts began with a new constitution in 2012 that weakened the judiciary’s authority to check the government’s power, undermined press freedom, and whittled away at basic human rights protections. In subsequent years, as his Fidesz party consolidated control over all levers of power, Orban ejected academic institutions and NGOs that criticized government policies or represented potential opposition. By March 2020, with Hungary in the midst of a spike in COVID-19 cases, the Fidesz-dominated legislature passed a law granting the prime minister authority to rule by decree. Aside from the astonishing scope of powers Orban assumed, the absence of an expiration date to this measure alarmed democracy advocates throughout the EU and beyond. Though these emergency powers have since been paused, there is looming suspicion that this was merely a test run for the increasingly authoritarian regime in Budapest.
Brussels is not without recourse to these anti-democratic moves. The EU foresaw potential deviations from democratic norms in its founding documents and has bolstered its enforcement tools to respond to violations via the rule of law conditionality measure passed by the European Parliament in 2020. The terms are simple: Member states that violate the rule of law can no longer access EU funding. For countries such as Poland and Hungary, this amounted to a serious threat to their national economic interests if their authoritarian tendencies continued. Unfortunately, a stick is useful only if one might actually use it.
The EU’s governing structure depends on consensus, leaving it vulnerable to member states’ acting in bad faith. In this case, Budapest and Warsaw have joined forces to block any punitive action that would target either for their anti-democratic practices. The duo leveraged this power, most notably, by holding hostage the EU’s latest budget (for 2021-2027), thereby preventing the disbursement of emergency COVID funding and billions of euros in annual appropriations until the requirements tying funding to rule of law conditionality were watered down to the point of impotence. The EU, having lost this battle, ponders what to do next.
Welcome home, James Crow, Esq
While democracy and the rule of law are under pressure in Europe, equally disturbing trends reminiscent of the 19th century have emerged in the U.S. The period of Reconstruction after the American Civil War changed the political landscape in the former Confederate states by paving the way for a newly empowered Black electorate to assert its rights as full citizens. But the backlash was swift and violent, as the combination of Jim Crow laws intended to discriminate and disenfranchise and campaigns of terror waged by groups, such as the Ku Klux Klan, erased the gains made by African Americans after the war.
Today, a second backlash to the empowerment of minority voting blocs in the U.S. has arisen. Protections afforded to Americans under the Civil Rights and Voting Rights Acts have been eroded, most definitively with the Supreme Court’s 2013 ruling in Shelby v. Holder. That decision effectively allowed states with a long history of voting discrimination to return to their old ways, this time with the tacit approval of the country’s highest court. Within hours of the ruling, states began introducing legislative measures that restricted voting access in an effort to stall the political repercussions of demographic change in favor of minorities.
According to the Brennan Center, lawmakers in 48 states have introduced so far this year 389 bills restricting voter access. Two examples come from states that have a long history of discrimination and were subject to federal oversight under the Voting Rights Act prior to the Shelby decision. These jurisdictions will also be swing states in presidential elections for the foreseeable future: Georgia and Arizona.
On March 25, 2021, Georgia Governor Brian Kemp signed into law new voting restrictions that limit the use of ballot drop boxes, prohibit volunteers distributing food or drink to voters waiting in the state’s notoriously long voting lines, and allow state officials to exert authority over local elections. Regarding Arizona, the U.S. Supreme Court’s conservative majority recently upheld one law that would ban the collection of absentee ballots by anyone other than a relative, caregiver, or someone living in the same home, and another that would discard any ballot cast in the wrong precinct. Advocates for the measures in both states invoke election security to justify these restrictions. In reality, they disproportionately target minority, urban and working-class voters who are pivotal voting blocs for Democrats in any competitive election.
Like their European counterparts, U.S. federal officials have tools at their disposal to incentivize or disincentivize uniformity of state-level policies for the “general welfare”. The Spending Clause in Article 1, Section 8 of the U.S. Constitution provides the federal government with the authority to make funding to the states contingent upon acting or refraining from acting in certain ways. But the 1987 Supreme Court decision in South Dakota v. Dole reined in funding conditionality by outlining key criteria that need to be met, most critically that the conditions are germane to the program in question, and that they do not violate any other provision of the Constitution. A good example of how this coercive approach works in practice is the federal government’s withholding of highway funds from Louisiana in the 1980s pending a rise in the state’s drinking age from 18 to 21. The federal government also dangled a financial incentive to states in 2002 by offering, under the Help America Vote Act, nearly $4 billion for election infrastructure to replace punch card voting machines with electronic voting. Yet there has been no serious proposal to date that would provide federal incentives to states that enact legislation to expand the franchise, nor any meaningful action to discourage those states that engage in modern-day voter suppression.
Where there’s a will there’s a way
It would be simple to say to policymakers on both sides of the Atlantic, “You’ve got the tools to protect democracy, so use them.” Setting aside the lawsuits, which would surely be plentiful if action were taken, the biggest obstacle at the moment to confronting the challenge is political will. On the EU side, it’s the risk of member states’ leaving the Union, leading to the end of the European project. For the Americans, there is the perennial debate about states’ rights and the potential for achieving anything in the current, hyperpolarized environment. All these concerns are valid to some extent, but the consequences of doing nothing include a potentially existential threat to Western democracy.
The transatlantic relationship was built and sustained on the back of a shared commitment to democracy and rule of law. Allowing rogue states within to subvert those values creates space for more egregious violations. There are no easy solutions, but doing nothing is no longer a viable option.