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Of Red Lines and Red Herrings: The EPP’s Delusions about Restraining Orbán
Guest article by professors R. Daniel Kelemen (professor of political sciences at New Jersey's Rutgers University) and Laurent Pech (the head of the Law and Politics Department of London's Middlesex University), originally published on Verfassungblog.
With the European People's Party (EPP) considering the possibility of finally expelling Orbán and his Fidesz party, it is worth considering why the EPP has tolerated Fidesz as a member party for so long, and what impact the EPP and Fidesz have had on one another. There is ample evidence that the EPP has protected Orbán and his Fidesz party from EU censure for years as a quid pro quo for their partisan loyalty.
However, those trying to justify the EPP's failure to expel Fidesz long ago have offered a more sympathetic interpretation of the EPP's motivations: they suggest that EPP leaders believed that by keeping Fidesz in their block they would have a restraining effect on the Orbán regime. By encouraging close dialogue with the Orbán government, so this argument goes, EPP membership would moderate the Orbán government and keep it on the side of pro-European forces.
The flaw in this self-justification is that there is no evidence that the EPP has had a restraining effect on Orbán. In fact, nothing could be further from the truth.
Rather, membership in the respected, democratic center-right EPP has legitimated and sanitized Orbán's rule, even as it descended into autocracy.
And in the crucial early years of his rule, the political protection of the EPP shielded the Orbán government from EU sanctions that it might have faced had his party been part of a weaker, far-right Europarty.
This post will offer an overview of the main EPP's ‘red lines' since the EPP leadership first demanded from Prime Minister Orbán that he immediately comply with EU laws and EPP values nearly two years ago, in April 2017. We will show that, contrary to Weber's claims about EPP values being non-negotiable, Orbán has repeatedly crossed the EPP's supposed red-lines with impunity.
And rather than being restrained by the EPP, Orbán has sought to transform it.
This post will end with a brief analysis of the EPP leadership's latest edition of its regularly redefined ‘red lines' courtesy of Manfred Weber, the EPP's Spitzenkandidat, who, rather than joining the mounting calls for the expulsion of Orbán's party, declared that he hoped he could keep Orbán in the EPP provided that Orbán ends the propaganda campaign accusing Juncker of encouraging mass migration; apologises to other EPP members and allows the Central European University to continue operating and issuing US degrees in Budapest.
Before proceeding with our analysis of EPP red lines, it is worth clarifying the core values that the EPP claims to stand for as a party. Article 3 of the EPP statutes states that the purpose of the EPP is to ‘work (i) to achieve free and pluralistic democracy, (ii) for respect for human rights, fundamental freedoms and the rule of law on the basis of a common programme' as well as ‘promote the process of unification and federal integration in Europe'.
With this background in mind, let us begin by considering how the EPP's rhetoric has been (or has not been) matched by action in relation to each of the three main ‘red lines' it has set out in recent years regarding respect for academic freedom, respect for civil society and anti-EU rhetoric. Finally, in concluding we can return to Weber's new red lines and consider their prospects.
1. Academic Freedom ‘red line'
It was heartening to see EPP leaders such as Manfred Weber stand up so firmly for ‘ freedom of thinking, research and speech' when the first visible signs of Orbán's campaign against the Central European University materialised. The April 2017 declaration referenced above was unambiguous in this respect: ‘We will not accept that any basic freedoms are restricted or rule of law is disregarded. This includes academic freedom and the autonomy of universities. The EPP wants the CEU to remain open, deadlines suspended and dialogue with the US to begin'.
One year later, we were told by the EPP spokesman in the European Parliament, Pedro López de Pablo, that ‘ Every time that Orbán has tried to cross a red line he has been stopped by the EPP. If Orbán was not in the EPP, the CEU [Central European University] would have already been closed'.
Most recently, the EPP emphasised in an ‘emergency resolution' adopted at the last EPP Congress in Helsinki that ‘ academic freedom is a cornerstone of democracy'. Awkwardly, the draft version of this resolution initially failed to include any reference to academic freedom but this was quickly corrected once the (innocent?) mistake was pointed out.
So much for rhetoric, but what about the actual enforcement of this red line considering that none of the demands put forward by the EPP was ever met by Orbán in the face of an obviously deteriorating situation not only with respect to the Central European University but concerning academic freedom and autonomy more generally (with gender studies banned and ongoing attacks against the Hungary Academy of Sciences)?
This is where you have to credit the EPP leadership for a rare skill at delaying action through an ever shifting of the goalposts. Let's take the example of the CEU: Immediate action was promised by Weber in May 2017 should the European Commission conclude that the Lex CEU is not compatible with EU Law. When the Commission confirmed that it was not, action was promised as soon the ECJ would issue a ruling. However, the EPP subsequently clarified that by “action”, it meant only that the EPP would request the Council to put the CEU on its agenda in the context of pending Article 7 proceedings against Hungary.
When finally faced with the forced move of the CEU to Vienna in December 2018, Weber merely expressed his ‘ disappointment'. To assuage critics, he also called on the ECJ to expedite the case. This flaccid gesture was even more meaningless than it might have appeared, as the Commission had already asked the ECJ to expedite the case about six months before.
A month before he mustered the courage to express his ‘disappointment', Weber had a concrete opportunity to take a stand for academic freedom – yet he failed to do so. At that time, the European Parliament was discussing a resolution regarding respect for academic freedom in the EU's external relations, and in this context it debated a number of amendments related to the CEU. But rather than supporting the CEU related amendments, Weber voted against them.
To conclude, when the EPP says it will defend academic freedom ‘ at any cost', one must understand that statement with the addendum – ‘as long as it does not cost us politically or only when it costs us politically'. Let us now look at the EPP stance regarding Orbán's attacks on civil society.
2. The NGO ‘red line'
In April 2017, the EPP unambiguously stressed that, ‘NGOs are an integral part of any healthy democracy, that they represent the civil society and that they must be respected.' This is the very line that was repeated a year later by MEP Siegfried Mureșan, in his capacity as EPP spokesman when asked to comment on George Soros' Open Societies Foundations leaving Hungary. Both Manfred Weber and Andreas Nick, a CDU lawmaker and his party's Hungary rapporteur, have explicitly spoken of a ‘red line' not to cross in this context.
Since then, the situation has since gone from bad to worse with respect to NGOs and freedom of association more generally. To give a single almost surreal example, the Hungarian government has since adopted a ‘Soros immigration tax', i.e., a purely content-based restriction on speech, which the Venice Commission has described as an ‘unjustified interference with the rights to freedom of expression and of association of the NGOs affected' which ‘will deter potential donors from supporting these NGOs and put more hardship on civil society engaged in legitimate human rights' activities' before concluding that it ought, therefore, to be repealed.
Speaking of the Venice Commission, while this is not widely known, the EPP put forward a number of ‘red lines' in connection to Venice Commission opinions. Andreas Nick for instance requested the Hungarian government not to adopt ‘the Stop Soros package' before the Venice Commission was done evaluating its compliance with international human rights standards. Angela Merkel made a similar request.
This ‘red line' was ignored with the Hungarian government going ahead prior to the release of the opinion on 25 June 2018 in which the Venice Commission described the main relevant legal provision put forward by Hungarian authorities as lacking ‘clarity', not meeting ‘the foreseeability criterion as understood in the ECtHR case-law' and one which ‘may result in further arbitrary restrictions to and prohibition through heavy sanctions of the indispensable work of human rights NGOs', not to mention the criminalisation of ‘activities that are fully legitimate'. The conclusion of the Venice Commission could not have been clearer: ‘the provision as examined in the present opinion infringes upon the right to freedom of association and expression and should be repealed.'
And what was the EPP leadership's reaction once it was clear that the Venice Commission found the Stop Soros measure unacceptable? Again, the EPP did nothing and urged patience.
Why? Because, according to Manfred Weber, it would not be appropriate to act before the European Commission could follow through with an infringement action. Following the approach developed for academic freedom, a new delaying qualifier was added to what had previously been presented as an unambiguous ‘red line', and action was further delayed until after any eventual adverse ECJ ruling.
This did not, however, prevent the EPP from lyrically proclaiming a few months later that ‘ a vibrant civil society plays a vital role in a fully-fledged democracy. Nongovernmental organisations must be allowed to operate for humanitarian goals without fear of punishment'.
By the way, the European Commission has since moved ahead with its infringement action. The EPP's reaction? Radio silence.
And how did the EPP react when the Hungarian government publicly and viciously attacked the president of the Hungarian Helsinki Committee for participating to a hearing organised by the Dutch Parliament? Radio silence again.
To conclude, when the EPP says it is committed to a vibrant civil society and that civil society groups must be respected, one must understand this may lead to consequences only after any eventual ECJ ruling. Until then would-be autocrats can adopt measures which lack clarity and foreseeability and get these endorsed by the captured constitutional court.
3. Anti-EU propaganda ‘red line'
In April 2017, Fidesz was told by the EPP leadership in no uncertain terms to stop its ‘constant attacks on Europe' and its ‘anti-EU rhetoric'. In September 21018, Weber made clear that the EPP is for politicians who ‘ have a pro-EU orientation'. Finally, in its ‘ emergency resolution' on protecting EU values, the EPP, without explicitly mentioning the Hungarian government, demanded that ‘EU Member State governments should refrain from spinning conspiracy theories and launching all-out attacks against the European Commission or the European Parliament, as well as against European cooperation as a whole.'
Moving away from the world of EPP rhetoric to the real world, we have since learned that the Hungarian government has spent approximately €216 million of taxpayers' money ‘ on propaganda and fearmongering in the past 8 years'. Adding insult to injury, most of the taxpayer's money financing this hate campaign appears to have ended up with businessmen close to the Hungarian government who were paid to spread the advertisements.
Should the EPP be left with any doubt about Orbán's disdain for its anti-EU propaganda ‘red line', they should note that Orbán has also been accusing ‘Brussels' of being ‘ the centre of modern anti-Semitism' while being simultaneously ‘ the stronghold of new internationalism' with its ‘tool' being migration.
Let us not forget of course the Orbán regime's multiple tinfoil hat conspiracy theories that have tied the usual target of his conspiracy theories, George Soros, to his attacks on the EU. For instance, Orbán justified his refusal to participate in a debate in the European Parliament about the rule of law situation in Hungary by suggesting that it would be ‘ a Soros-style session, election rally and campaign event'. With reference to the infringement procedure previously discussed, he said that ‘ it is becoming more and more obvious that George Soros is trying to expand his influence in the European Commission'.
The EPP's reaction to Orbán tying anti-EU propaganda into his dog-whistle anti-semitic conspiracy theories involving Soros? You haven't been paying attention if you are still asking yourself this question. The answer was, of course, more silence from the EPP.
We could go on and on with respect to the EPP's additional ‘red lines' and how their violation has been systematically ignored. We could for instance show how key EPP figures, despite proclaiming the need to stand up against hate speech and anti-Semitism, have ignored Orbán's racist rhetoric and the obvious anti-Semitic overtones of the Hungarian government's anti-Soros propaganda. The same could be said about the ‘respect for the rule of law/ECJ rulings' red line. Having lost in the ECJ with respect to the legality of the EU's refugee relocation scheme, the Hungarian government described the ruling as ‘ outrageous and irresponsible' and went as far as to speak of a ‘rape' of EU law. The EPP's reaction? You will search in vain to find any reaction whatsoever.
4. Justifying inaction: the 2019 millésime
At the Munich Security Conference (which took place before the release of the infamous Juncker/Soros posters were disseminated), Manfred Weber tried to defend the indefensible and, unsurprisingly, only further embarrassed himself further in the process.
When asked about how could Orbán still remain in the EPP considering the EU values the EPP officially holds dear, Weber first argued the following: ‘We can only implement our values if we sit down together ... and we respect the outcome of the Hungarian elections. Orbán was elected.'
Regrettably, Weber does not seem aware of two international reports concluding that both the 2014 and 2018 legislative elections in Hungary were unfair. To quote from the 2018 report:
The campaign was animated, but hostile and intimidating campaign rhetoric limited space for substantive debate and diminished voters' ability to make an informed choice. The ubiquitous overlap between government information and ruling coalition campaigns, and other abuses of administrative resources, blurred the line between state and party, at odds with OSCE commitments.
... the ability of contestants to compete on an equal basis was significantly compromised by the government's excessive spending on public information advertisements that amplified the ruling coalition's campaign message. With no reporting requirements until after the elections, voters were effectively deprived of information on campaign financing, key to making an informed choice. The overall lack of transparency challenged international standards.
Media coverage of the campaign was extensive, yet highly polarized and lacking critical analysis due to the politicization of media ownership and influx of the government's publicity campaigns. The public broadcaster fulfilled its mandate to provide free airtime to contestants, but its newscasts and editorial outputs clearly favoured the ruling coalition, contrary to international standards. Most commercial broadcasters were partisan in their coverage, siding either with the ruling or opposition parties. Online media provided a platform for pluralistic, issue-oriented political debate. Defamation remains a criminal offence and pressure on journalists was observed.
Surely aware the "he was elected" card was unlikely to assuage critics (who might for instance note that Putin and Erdogan were also elected), Weber offered a second defense for Fidesz' EPP membership, making a rather strange connection between kicking Orbán out of the EPP and Brexit. Under his tortured logic, Brexit was the ineluctable consequence of Cameron's decision to take the Conservatives out of the EPP, and therefore expelling Fidesz might lead to Hungrexit as well. There are so many fundamental flaws in this line of reasoning – and we use the term reasoning here loosely – that it does not merit a response.
Lastly, Weber tried to mount a ‘whataboutism' defense – what rhetoricians would label the ‘tu quoque logical fallacy'. Essentially, he accused critics of hypocrisy. Instead of defending Fidesz' membership in the EPP, he emphasized that many other governments had similar problems and argued that we look as ‘intensely' about the ‘same problems in other countries'. We have looked and Hungary is the only EU country to have been downgraded by Freedom House from Free to Partly Free, and was ranked recently in the WJP Rule of Law Index 2019 24 out of 24 countries in the EU, EFTA and North American region when it comes to constraints on government powers.
5. The only ‘red line': don't go after EPP leaders
After standing by for years as Orbán crossed its supposed ‘red lines' with impunity, the EPP was recently stirred to action.
What was the final straw? Another attack on the rule of law? Or on the media? Or on academic freedom? No. The affront that finally prompted the EPP to act was Orbán's attack on an EPP leader, Jean Claude Juncker.
Orbán had been targeting other EU leaders such as Judith Sargentini and Guy Verhofstadt for some time – alongside his usual demonisation of George Soros and refugees. But in February 2019, he crossed a bridge too far by plastering the country with billboards essentially accusing the EPP's own European Commission President of conspiring with George Soros to flood Hungary with refugees.
This betrayal of the very party that had been so loyally defending his regime finally triggered a response from other national member parties of the EPP. The Swedish Moderate Party took the first step by announcing that they would be requesting the expulsion of Fidesz from the EPP. This triggered a cascade, and within days a dozen parties from ten member states had given notice that they too would demand either the suspension or expulsion of Fidesz from the EPP. In response to these demands, the EPP is now scheduled to debate the expulsion of Fidesz – and presumably take a vote on it – when its political assembly meets on March 20.
This uprising against the Orbán regime within the EPP, by the member parties with stronger commitments to liberal democracy, has provoked a panicked reaction from the EPP's Spitzenkandidat and de facto leader, Manfred Weber. Weber is keen to keep the broad coalition of parties that constitutes the EPP together and to prevent the ouster of Fidesz (and the departure of any like-minded parties it might take with it). At the same time, given the calls for Fidesz expulsion made by the principled democratic member parties, Weber recognised that he had to be seen as taking serious action. Weber responded on March 5, sending a letter sent to EPP President Joseph Daul that set out three new ‘red lines' for Orbán: the removal of the anti-Juncker posters; a promise to refrain from such attacks in the future and apologize to EPP members; and the ‘clarification' of legal issues surrounding the CEU.
Weber's three new red lines are shocking in a few respects. Most importantly, they completely ignore all the fundamental problems in Hungary discussed above. Also, the first two red lines make it clear that Weber's main demand is that Orban show loyalty and respect to the EPP. Finally,
the new red line concerning the CEU ignores the fact that the Orbán regime already crossed that red line in 2018, forcing the CEU to announce its coming relocation to Vienna.
Weber recently visited Budapest to meet with Orban and discuss his demands. The visit, and Orbán's response to Weber's demands, have been farcical.
On the eve of Weber's visit, the Orbán government announced that it would be removing the offending Juncker-Soros posters by March 15, before the EPP discussion/vote on expulsion. Yet, even as Weber visited Budapest, the billboards with the image remained in place across the country (with some repainted so as to make it possible for Weber not to see them...), and the government continued to circulate the anti-Juncker-Soros propaganda images in government-affiliated newspapers and web sites.
With regard to the apology Weber demanded, Orbán did write letters to the leaders of the member parties that demanded his expulsion. He did not, however, apologise for his anti-EU propaganda campaigns as Weber had originally demanded (nor for violating the EPP's and the EU's core democratic values which is, of course, the real issue at stake). Instead, Orbán only ‘apologised' for a comment he made on March 2nd calling his EPP critics ‘useful idiots' of the Left, essentially saying that it is not his fault if his colleagues are too ignorant to know that he borrowed the expression from Lenin.
With respect to the CEU, suffice it to say that in order (allegedly) to defend academic freedom and university autonomy, we are now seeing a German university being nudged (we do not want to say coerced) into entering a partnership with the CEU on the back of ‘ financial and technical support' offered by the Bavarian government while the academic case for the partnership still remains a mystery. While some may welcome this sudden sense of urgency, which was nowhere to be seen before some EPP member parties forced a discussion on the possible expulsion of Fidesz, it is unhealthy (and possibly unlawful) to see an academic partnership being pushed by a government (in this case Bavaria) promising taxpayer's money in order to save the political future of one of its own, Manfred Weber.
It is not yet too late for EPP rank and file members to save the credibility of their party, and their reputation in the process, by finally enforcing the many red lines devised by the EPP leadership.
(Cover: Hungary's Prime Minister Viktor Orban addresses the planery session at the European Parliament on the situation in Hungary, in Brussels on Avril 26, 2017. Photo: Olivier Hoslet / MTI / EPA)
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