Could The U.S. Pass The EU’s Democracy Test?

The EU’s basic treaty requires its members first and foremost to be democracies.
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You’ve probably read that the European Union, after years of trying to duck the plain reality of Poland and Hungary ceasing to be democracies, has taken the first step towards denying Poland a vote in the European Commission. The EU’s basic treaty requires its members first and foremost to be democracies.

Here’s the backstory. Since Poland’s Law and Justice Party took power in 2015, the Polish ultra-nationalist leader, Jaroslaw Kaczynski, has felt stymied by the independent judiciary. In July 2017, the government drafted legislation to give Kaczynski control of the courts.

Other EU leaders warned of dire consequences, and Poland’s President, Andrzej Duda, a close ally of the government, surprised all by refusing the sign the law. Cynics said this was just a ploy to buy some time for a kinder, gentler version of the same scheme ― and they were right.

The government went back the drawing board and drafted new legislation. The original law vetoed by Duda simply got rid of the entire Supreme Court. The new law requires judges to retire at 65, which effectively gives the governing party control of a majority of all judges. The new law also revises the process for selecting judges, giving more control to the lower house of Parliament, which is controlled by the governing party. This time, Duda signed it.

The EU, which has repeatedly violated the sovereignty of member nations for the sin of running deficits, and extracted severe punishments that resulted in deeper economic collapse, has been extremely timid about enforcing Article 7 of the EU’s founding treaty, which requires all members to be democracies. This kind of tells you where the EU’s real priorities are.

And in Hungary, when the ruling Fidesz party gerrymandered legislative districts, giving the governing party a two-thirds majority in parliament and effectively making it impossible for the opposition to come to power, the EU leadership did nothing (apparently, killing democracy is less of a crime than running deficits.) Hungary’s leader, Viktor Orban, also expanded the size of the Supreme Court, so that he could control it.

Up until now, the EU has not moved against either Hungary or Poland. But last week the EU’s leaders took the first step towards invoking sanctions under Article 7, the most serious of which would be to deprive Poland of a vote. Poland would continue to have all of the other benefits of EU membership.

This new courage on the part of Brussels, however belated and tentative, is an important step. But I wonder: If the United States were subjected to these tests, could it pass?

Take the case of gerrymandering. In 2012, states controlled by Republican legislatures and governors resorted to extreme gerrymandering, so that Republicans begin with a head start of 20 to 25 seats in the U.S. House of Representatives, relative to their share of the popular vote. Hungary, in rendering democracy purely formalistic, could learn a trick or two from the GOP.

And where courts are concerned, the Polish government is pretty tame compared to Republican Senate Leader Mitch McConnell. For the last six years of President Obama’s administration, when Republicans controlled the Senate, McConnell slow-rolled Obama’s judicial appointees, leaving a federal bench that will be controlled by Republican judges for a generation or more.

McConnell disgracefully blocked consideration of Obama’s nomination of Merrick Garland, an ideological moderate, to the Supreme Court. Thanks to this strategy of total blockage, when Trump took office there were 105 vacancies on the federal judicial bench, compared to just 54 when Obama took office.

So courts and legislative districts are increasingly rigged, just as in Poland and Hungary. The United States is still a democracy ― but a narrowed one.

The revulsion against Trump is so broad and deep, that we have a good shot at repairing the several elements that the Republicans have sought to destroy.

Trump gets most of the attention as a would-be dictator. But the “mainstream” Republican Party properly deserves most of the blame.

Robert Kuttner is co-editor of The American Prospect and professor at Brandeis University’s Heller School. His forthcoming book is Can Democracy Survive Global Capitalism?

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