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Executive Summary
There are valid questions over what constitutes acceptable governance in 21st-century democracies. These questions have been applied to several EU member states in recent years, but have been particularly contested with regard to Poland as the governing center-left Civic Coalition (KO)—led by its largest party (Civic Platform [PO]) —charges the right of center Law and Justice (PiS) with violating key tenets of democracy including; the rule of law, and media freedom. PiS, led by former Prime Minister Jaroslaw Kaczynski, responds that these charges are misleading or false and that the current government itself is guilty of excesses on these very issues.
But what drives this argument, and who is right? Weren’t these questions settled long ago? The answer is not really. There’s more than one valid view within this nexus of issues, both regarding the period PiS governed Poland (2015-23) and since Civic Platform took office in December 2023. These issues are more complex and nuanced than prevailing narratives about “democrats” or “far-right” politicians.
One year after returning to power, the Civic Platform-led coalition government continues to argue that its victory in the October 2023 parliamentary elections resolved these debates, indeed that it “saved democracy” by defeating “far right” PiS. Since then, the KO government has taken strong steps to “restore the rule of law,” “reestablish the constitutional order,“ and reverse other changes PiS made during its time in office that, claiming that they were turning Poland into an autocracy, or authoritarian populist state. Civic Platform charges PiS with continuing to block its noble efforts and perpetuating “illiberalism” via their control of the presidency and judiciary.
The Biden administration, including former U.S. Ambassador to Poland Mark Brzezinski, the European Commission, as well as most journalists, think tanks, and pundits accepted the Civic Platform narrative uncritically and have in many cases adopted their language.
This debate is valuable because it has opened up important questions with major political ramifications. For example, is only the European Commission’s interpretation of “democracy” and the “rule of law” acceptable, or are variations permitted that stay within certain boundaries? Where exactly is the line between what the EU treaties prescribe and member state sovereignty? Does the EU have jurisdiction over member state judiciaries such that it can prescribe exactly how each is organized? How are the European treaties being applied elsewhere across the bloc?
Civic Platform has framed this debate according to its own interpretation, while PiS has a different one. This difference introduced friction into Poland’s relationship with the Obama and Biden administrations and harmed Poland’s relationship with the EU, as the European Commission, European Court of Justice, and the European Court of Human Rights named and shamed the Szydlo and Morawiecki governments (2015–23) and launched Article 7 proceedings, going so far as to withhold some 137 billion euros from the Covid-related Recovery and Resilience Facility and the Cohesion Fund because of concerns over the judiciary and rule of law. This reinforced euro-skepticism in Poland and other EU member states as politicians took notice and some challenged EU interpretations.
There is not only one valid position on these differences. For example, if the attempts by Law and Justice to bring media under Polish ownership violated media freedom, does the same then not also apply to other democracies like Canada and France, which allow no more than 20–25 percent of media to be foreign-owned? Can Warsaw not try to “re-Polonize” media in the country, most of which were sold to foreign firms after 1989 when its economy was unusually weak? If Civic Platform accuses PiS of politicizing state media, what are observers to make of the fact that Polish media throughout the post-1989 period was built to reflect the views of the government in power—and does so now under PO as well—on the principle cuius regio, eius telewizja?
If KO argues that it must “restore the constitutional order” because PiS-appointed judges in the Constitutional Tribunal are aligned with its views, would that not also require restoring the rule of law in the United States, where judges have been appointed politically since the early years of the republic? If Polish judges are unfit for office because of their association with a political party, what are we to think about the president of the German Constitutional Court, who was vice chair of the CDU in the Bundestag until just before his appointment to the court in 2018?
These issues can be very technical and bear further examination and debate. Honest answers are key for the future of freedom and democracy in Poland and beyond.
Our analysis of the situation leads to several conclusions:
- Fears about the demise of Polish democracy during 2015–23 have been much exaggerated. The 2023 election would have had a very different outcome had the state been an “autocracy,” “authoritarian,” or “captured” as critics asserted. Poland was hardly an autocracy then, and the democracy gene has been alive and well in the vibrant Polish polity throughout the entire post-1989 period. However, since taking office, the Civic Platform government has been taking dubious, if not illegal, steps under the guise of “restoring democracy,” many of which bear close resemblance to those of which it accused the previous government of doing.
- Not all the charges leveled against the PiS governments are incorrect, but the way they have been presented in the media and in the public forum is selective and inconsistent and very often paint with too broad a brush. There are accusation of favoritism, but this has equally applied to earlier Polish governments, including those headed by Donald Tusk from 2007–15. Law and Justice governments deployed Pegasus spyware, but the Tusk government has so far been unable to prove that it did so without due process, and similar surveillance happened in other EU member states. Law and Justice governments did discriminate against TVN, but the dispute was resolved via quiet diplomacy. Even staunch PiS critics admit TVP under Civic Platform leadership has not escaped political interference and is entangled with its politics. Poland’s media landscape is vibrant and dynamic, but its public TV has tended to follow the cuius regio, eius telewizja principle since 1989. PiS governments were hardly alone in how they approached EU-related issues, as observers now see KO opposing EU asylum policy.
- To examine the context, and contradictions in these issues is not whataboutism. The EU was selective in singling out Law and Justice for punishment and has not often pursued similar issues with other member states to the same degree. The Obama and Biden administrations judged PiS governments more harshly because of their more traditional approach to public policy (e.g., migration and abortion) and insistence on maintaining control over issues where the EU treaties leave some room to member states (e.g., judiciary). It is difficult to avoid the conclusion that critics judge Polish politics by progressive standards and a government’s willingness unquestioningly to implement every EU initiative.
- Since taking office in December 2023, the KO-led coalition government has pursued lawfare and criminalized political differences to ensure PiS never again represents a serious challenge to its power. KO has crossed the line with its “iron broom” approach. The term PM Tusk has coined for this effort—“demokracja walczaca” (militant democracy)—recalls a Solidarity-era concept that justifies using almost any means to go after opponents. Some in KO advocated “depisizacja,” which recalls the dekommunizacja concept by which all communists would have been removed from their positions had it been carried out after 1989. Still other KO leaders have used the term dezintegracja that would break PiS apart. KO politicians say publicly that Poland is at a special moment that justifies extraordinary measures to restore the constitutional order.
- The case of Poland can help us to decide how issues like media freedom, rule of law, and democratic governance is understood in the 21st century. Framing them simply as “a struggle for democracy” is unsatisfactory given policy and legal disagreements—and a lack of consensus over what the term democracy means in the first place. One camp defines the term more as liberal democracy, arguing that only a country that checks all the progressive boxes is really a democracy. The other camp uses terms like liberty, ordered liberty, freedom, republic, or democratic sovereignty, reflecting a conservative or traditionalist understanding.
- The Republican victory in the November 2024 US elections and PM Tusk’s long-held critical views of President Trump raise the stakes for the KO-led government on the US-Polish relationship. KO leaders are correct when they say US-Polish relations will remain strong, regardless of who is in power in both capitals, but the Trump administration is aware of KO’s preference for the Democrat Party and criticism of the president in the latest election cycle. President Duda’s outstanding ties with the US president and close PiS ties with the Republicans are a major asset for Polish foreign policy and the bilateral relationship. Further attempts by the KO-led government to try to destroy PiS will be noticed, which could cause it to lose influence in Washington to the detriment of Poland’s national interests and the bilateral relationship. Poland benefits from a strong opposition, and PiS represents a large part of the electorate that buttresses the country’s national security goals and the NATO at a time of unprecedented challenges to the European security order and intensifying great power competition.