Introduction
by Georgios Dimitriadis
a. Definition
When discussing the topic of rule of law, there are different definitions that can be found depending on the context. It is a principle enshrined in Article 2 of the Treaty on the European Union (“TEU”) as a value upon which the European Union (“EU”) is founded. According to the 2020 Rule of Law Report, “all public powers always act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts. The rule of law includes principles such as legality, implying a transparent, accountable, democratic, and pluralistic process for enacting laws; legal certainty; prohibiting the arbitrary exercise of executive power; effective judicial protection by independent and impartial courts, effective judicial review including respect for fundamental rights; separation of powers; and equality before the law. These principles have been recognized by the European Court of Justice [...] and the European Court of Human Rights.” (European Commission, 2020). In a more literary sense, according to Denise Meyerson “The rule of law is the opposite of the rule of power. It stands for the supremacy of law over the supremacy of individual will.” (Bellamy, R., 2005).
The backsliding of the rule of law has come to the forefront in the past few years, ever since the elections that brought into government populist parties in Hungary and Poland. Respectively Fidesz and PiS have been making concerted efforts in their constituencies to undermine the independence of the judiciary and the freedom of the press, while in both countries LGBTQ+ rights have been severely curtailed, with Polish municipalities going so far as declaring themselves LGBT-free zones with ardent government support (Noack, R., 2019). Furthermore, the Hungarian ruling party, according to Freedom House, was accused of using “its parliamentary supermajority to impose restrictions on or assert control over the opposition, the media, religious groups, academia, NGOs, the courts, asylum seekers, and the private sector since 2010” (Bakke, E. & Sitter, N., 2020) effectively limiting the liberal space massively for the opposition and non-supporters of the government. In addition, Fidesz-friendly business conglomerates have been leading a campaign since 2010, to buy up the majority of mass media, limiting press freedom in the country (Bakke, E. & Sitter, N., 2020).
b. Why does rule of law backsliding constitute a challenge?
Institutions in charge of monitoring the rule of law during the period of the pandemic have been struggling to mount a response to attacks on rule of law on both sides of the Atlantic, regardless of their source, within governments or outside them. Some crucial challenges have been the latest stages of the Trump administration culminating in the Capitol riot, with alt-right protesters invading the Capitol, the seat of the United States (“US”) legislature, and holding legislators hostage within the chambers or their offices, and undermining the government’s legitimacy as a whole. Congress following this incident would attempt impeachment of outgoing President Donald Trump, for inciting insurrection and supporting the protesters who had invaded the Capitol. Despite the very recent event, he would be acquitted although certain Republican senators would break partisan lines and vote for his impeachment, a move rather unprecedented in US congressional politics (United States Congress, 2021a). Such a challenge to constitutional democracy by non-governmental actors demonstrated an underlying lack of trust in government institutions in the US which would prove very hard to rebuild for the incoming administration in the midst of a health crisis and following a very divisive election.
On the other hand, on the European side of the Atlantic, it would be a governmental actor, the Hungarian government that would take increasing steps to restrict the liberal space during the pandemic and would take advantage of the crisis to further increase its power. For instance, in the first months of the pandemic, it was widely criticized for its use of an “Enabling Act” (Wahl T., 2020) which was accused of “cementing the erosion of rule of law in Hungary” and later on the Supreme Court of Hungary would pass a decision declaring Hungarian law primacy over EU law, forgoing its commitment to the European Treaties (Von der Burchard, H., 2020).
The European Parliament (“EP”) reacted to those challenges in 2017 by activating Article 7 of the TEU which specifies penalties that may be incurred by Member States that go back on their commitments to the values specified in Article 2 of the TEU (EURLEX, 2012). The value that was mentioned in the case against Hungary was the “Rule of Law” (Maurice, E., 2021). Nonetheless, the unanimity required by the TEU has delayed the practical enforcement of the sanctions mentioned in the article (Céu, B., 2021).
Relevance
Mary Frances Odukwe
In the EU, there’s a growing understanding that the erosion of democracy and the rule of law in Hungary is a threat to the entire legal order. However, the hesitant, arguably toothless, and slowness of the EU response during COVID questioned the legitimacy and authority of the bloc. The pandemic broadened the preexisting rift between high-performing democracies in Western Europe and weaker counterparts in Central and Eastern Europe. That divide will continue to challenge the EU's unity, as it also faces greater outside pressure from nondemocratic superpowers. Hungary reflects a worldwide rollback of liberalism across Central and Eastern Europe. Scholars have cautioned against the threat of populism and the consequences of allowing autocratic regimes like Hungary to take root. Because the EU already has existing and seemingly growing ‘Eurosceptic’ challenges internally, such obvious mismatches concerning core EU values only risk further highlighting the current divisions. But its increased democratic isolation also poses opportunities for greater integration and collaboration, as the EU is forced to consider the value of democracy as its core foundational force. Mr. Orban’s intransigence and defiance have had a significant if unintended, effect: Serving as a catalyst for an often-sluggish EU system to act to protect the democratic principles of its foundation.
In the case of the US, a successful impeachment would have set precedent and made clear that no president, now or in the future, can lead an insurrection against the US government. However, the legislative branch could not reach a supermajority resulting in Trump being acquitted, a verdict that underscores the sway America’s 45th president still holds over the Republican party even after leaving office. As this large group of Republicans mostly remains silent about Donald Trump’s attacks on US democracy or even tries to shift the blame to Democrats and the anti-racism protests, democracy scholars see the potential for lasting damage to one of Congress’ most valuable but intangible assets: its global soft power (Oswald, R., 2021). “How can I go and talk to any of these other dictators around the world, these other authoritarians around the world, as I will have to do as chair of the Foreign Affairs Committee, and talk to them about their bad acts and actions and we don’t hold our own accountable” Rep. Gregory W. Meeks, D-N.Y., told reporters. Although the Confederate flag flew for a few hours in the Capitol last week, dozens of Confederate monuments were permanently removed last year. Some were toppled by protesters; others were taken down by elected officials who finally saw that it is long past time to stop honoring men who fought against the US.
Both Orbán and Trump’s tactics have spillover effects. They call into question the credibility of the EU-US partnership in promoting democracy and democratic reform to the rest of the world. In addition, the European People’s Party (“EPP”) hesitancy to clamp down on Hungary due to Fidesz’s membership in the EPP and the Republicans’ refusal to impeach former President Trump is significant of how tribalism and partisanship can stand in the way of upholding foundational principles such as democracy (Arnson, C. J., Daly, R., & Hamilton, D. S., 2021).
The transatlantic relationship has led to the promotion of representative governance, the global advancement of democracy, and the endeavor of ensuring security and peace not only in Europe and North America but also around the world. However, the actions of the Hungarian government and the capital insurrection on January 6 drove home the importance of working to protect and nurture the processes, institutions, and culture of democratic governance, even in the world’s models of democracy.
Transatlantic Divergences
Alexandra Popova
This chapter’s goal is to highlight the differences in responses of the legislative branches of the EU and the US. As a reminder, the EU’s legislative branch is composed of the EP whose members (“MEP”) are directly elected by EU citizens, and the Council of the EU is composed of a government minister from each Member State. The legislative branch of the US is the Congress which is composed of the Senate and the House of Representatives.
a. EP and Council of Ministers’ response
In September 2018, the EP tasked the Council of the EU with determining whether Hungary is at risk of breaching the founding values of the EU – this, in accordance with Article 7 of the TEU (European Parliament, 2020). In a report (see Sargentini Report), the EP highlighted a list of issues in Hungary which they argued should trigger the 2020 Rule of Law Conditionality Regulation to protect the EU budget – the EP argued that the Hungarian Recovery and Resilience Plan may not comply with EU law (Köves, N., 2018). The EP voted to condemn Hungary’s anti-democratic moves, thereby initiating the Article 7(1) procedure (Wahl, T., 2020).
Three years later, in June 2021, the Hungarian Parliament proceeded to vote in favor of rules that banned LGBTIQ content from school educational materials or TV shows for those under the age of 18 (European Parliament, 2021a).
The EP responded in July 2021, with the plenary of the EP adopting a new resolution on Hungary. This critiqued the aforementioned Hungarian anti-LGBTIQ legislation and denounced Hungary’s deliberate subversion of the rule of law and democracy. This resolution, upon adoption, called the anti-LGBTIQ law as being a “clear breach of fundamental rights enshrined in the EU Charter of fundamental rights, the Treaties, and EU internal market legislation” (European Parliament, 2021a) (European Parliament, 2021b). In the same month, the European Commission (“EC”) added to the criticism from the EU institutions – its Rule of Law report also highlighted the worsening situation in Hungary. It noted various issues, in particular the risk to media pluralism, the pressure faced by civil society organizations critical of the government, and the transparency and quality of the Hungarian legislative process (European Commission, 2021).
Lastly, in October 2021, an MEP delegation traveled to Hungary with the task of assessing the following areas: respect for press and academic freedom, the rights of minorities, and the wider context of the rule of law. The outcome of this tour was an update to the Sargentini report originally published by the EP in 2018, further condemning the exponential backsliding of the rule of law and democracy (European Parliament, 2021c) (European Parliament, 2021d).
b. US Congress’ response
The Speaker of the House of Representatives has proposed to create the National Commission to Investigate the January 6 Attack on the United States Capitol Complex (January 6 Commission) in the legislative branch of the US. This January 6 commission would have investigated the Capitol riot (Walters, J., 2021). The commission would have conducted an “investigation of the relevant facts and circumstances relating to the attack on the Capitol”; identified and evaluated “the causes of and the lessons learned from this attack”; and submitted “specified reports containing findings, conclusions, and recommendations to improve the detection, prevention, preparedness for, and response to targeted violence and domestic terrorism and improve the security posture of the U.S. Capitol Complex” (United States Congress, 2021c). A bill forming the commission passed the House of Representatives but was then blocked by Senate Republicans (Segers, G., 2021)
Nevertheless, in July 2021, the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol, a select committee of the House of Representatives to investigate the riot, was established (United States Congress, 2021d). The investigation began with public hearings and by March 2022, the select committee had interviewed around 700 people (Karanth, S, 2022). The committee suggested that Donald Trump “knew he did not win the election and was thus perpetuating a fraud” and it also recommended that the US Department of Justice “open a criminal investigation into Trump's responsibility for the attack on the Capitol” (Hamburger, T., Alemany, J., Dawsey, J. & Zapotosky, M., 2021) (Broadwater, L. & Feuer, A., 2022). The committee is still up and running and will be terminated 30 days after the final report is issued. The final report will contain “findings, conclusions, and recommendations for corrective measures” (United States Congress, 2021d.).
Furthermore, the House of Representatives adopted an article of impeachment against Donald Trump which charged him with incitement to insurrection (United States Congress, 2021a).
Finally, the Emergency Security Supplemental to Respond to January 6th Appropriations Act, 2021 was adopted. This Act aims at providing supplementary funding to secure the Capitol (United States Congress, 2021b).
c. Comparison of both responses
It appears that the process of the EU's legislative branch response takes longer in comparison to that of the US. Indeed, Article 7 of the TEU has been activated in 2018 against Hungary. However, no financial sanctions have yet been taken against that country despite the adoption of a resolution against Hungary by the EP. On the other hand, the House of Representatives established a select committee only a few months after the Capitol riots. Furthermore, the House of Representatives adopted an article of impeachment against Donal Trump fairly quickly.
The contrasting speed of responses can be explained by two elements. First, the US is a federal State while the EU is a union of States which means that, given its nature, the EU will take longer to coordinate its actions. Second, given its violence, the Capitol riot presented a bigger threat to the rule of law than the legislation of Hungary did.
Proposals
Keziah Edgoose
a. Introduction
The institutional setup of the legislative branch differs across the Atlantic. Proposals for mitigating the transatlantic divergences in legislative branch responses to rule of law backsliding must therefore take into account these differences, as well as the different history of the branches, and the feasibility of tools bearing in mind the lack of close political transatlantic cooperation. There is no one blueprint for both sides of the Atlantic, and so a set of proposals for each legislative branch is considered in turn, before proposing areas in which there is an opportunity for transatlantic cooperation that would bolster the response efficacy of legislative branch responses to rule of law backsliding.
b. European Legislative Branch Proposals
The EP has, in conjunction with the Council of the EU, the co-legislative power to pass legislation proposed by the EC. The EP has gained and exercised its influence over the executive branch in novel ways throughout its history, notably by blocking legislation presented to it by the EC. This is especially pertinent to the budget, as the EP and Council can add amendments such as conditionality clauses, pressuring the Member States to adapt to their requirements if they wish to receive funding, and pressuring the EC to take into account the legislators' preferences when drafting its legislation.
The co-legislators did indeed make use of this power and signed a regulation ‘On a General Regime of Conditionality for the Protection of the Union Budget’ in 2021, which added a rule of law conditionality clause, responding directly to the misuse of EU funding by the Hungarian government during the Covid-19 pandemic (Beqiraj, J., 2021). The legislative branch has in this way, and by asking the EC to activate the Article 7 procedure, been pushing for action to be taken against Hungary’s covid rule of law backsliding, despite being slow to rid Fidesz from the EPP.
However, the EP still faces the problem of the limitation of its powers, as evidenced by the EC’s initial rejection of the EP’s resolution calling on the EC to take further action to uphold the rule of law across the Member States. The unanimity requirement for the activation of Article 7 also poses a significant obstacle. The EP has no option but to continue to put pressure on the other institutions to take rule of law violations seriously, to do what it can to address MEPs that pose threats to the rule of law, and to restrict funding. On the European side of the Atlantic, it does appear that the tools are already there. The legislative branch must continue to push for them to be implemented.
c. US Congress Proposals
US congress is, amongst other things, tasked with keeping the executive branch in check and investigating where it breaches its role (US Capitol Visitor Center About Congress, n.d.). The failure of Congress to impeach Trump after his evident attempts to undermine the rule of law, leading up to his defeat in the 2020 elections, represents a clear failure of the legislative branch in this task, which sets a dangerous precedent for future Presidents who could erode democracy and the rule of law even further. The vulnerability of the US system to rule of law backsliding, however, runs deeper than the failures of legislative action. Edelson proposes that the constitution itself is to blame for an institutional structure so vulnerable to rule of law attacks (Edelson, C., 2020). The solution, he argues, is a new constitution with stronger mechanisms to prevent abuses of power, especially on the executive branch. The reality is, however, that the US is rather fond of its constitution, and its longstanding history means that any change is unlikely to come soon.
d. Transatlantic cooperation proposals
Shared problems call for shared solutions, but the fact remains that the EU is not a state and thus its implementation tools are more limited than in the US, despite the fact that there may be more willingness for reform in order to institutionalize systematic responses to rule of law backsliding. Cooperation, then, could start on a smaller scale, by communicating on legislative acts that protect the spread of misinformation online, something which often lends support to populist uprisings such as the capitol riots. Citizens should be informed on how to identify misinformation, so they are less likely to fall for this trap that populist leaders use to justify their encouragement or enacting of rule of law backsliding.
Both the EU and the US promote themselves as global protectors of the rule of law, notably by including rule of law clauses in their trade deals. However, they run the risk of losing credibility as leaders in this area worldwide, if they cannot uphold the rule of law within their own borders. The similarities in rule of law backsliding across the Atlantic call for cooperation, learning from each other, and perhaps even enacting similar tools to contain the executive. The Transatlantic Legislators’ Dialogue (“TLD”) would be the ideal setting in which to begin addressing this collaboration. Looking forward, strengthening or even institutionalization of the TLD would lend itself to tackling the increasing number of transatlantic issues in an ever more connected world.
e. Conclusion
The transatlantic partners need to go back to basics. If they are to define themselves by their strong commitment to the rule of law, then the legislative branch must do its job properly; there must be checks and balances on the executive branch as a preventative measure, and an effective punitive arm should systematically be enacted should these preventative measures fail.
Recommendations
Eva Rito Silva
The legislative branch is where citizens find their most direct representation, and it functions as a protection of the people from the executive. As such, legislative branches must protect democratic values and hold the executive to such standards. This is as true for the EU as it is for the US.
a. European Legislative branch recommendations
The two EU institutions that make up the legislative branch are the EP and the Council of the EU. The EP must pressure the EC, as well as the Member States, to act when it comes to the rule of law and to put the existing tools to use. Continuing along this line of thought, creating pressure in the Council to also utilize those tools is just as important (Article 7 of the TEU). The EP also has the role of condemning any breaches of the common values, as they have done before, by majority vote.
The EP should establish a cooperation and communication system with National Parliaments, as it has pushed for (European Parliament, n.d.) to have a coordinated response to backsliding. This would provide a framework to evaluate the magnitude of the problem in different Member States, allowing action to be suggested and taken earlier.
Lastly, as the EP has shared control over the EU budget if the EC declares a country in breach of the values in Article 2 of the TEU, the EP can propose through amendments to cut or freeze payments to the country in breach. This may work as economic sanctions may be one of the most powerful tools at hand. Then it will be voted upon by the Council through Qualified Majority Voting. This could be done in the case of Hungary, especially as backsliding worsened during the pandemic crisis, due to further restrictions on political and civil rights. Overall, the role of the EP and the Council should be one of commitment and defense of EU values, to avoid non-compliance, pushing for existing tools implementation and economic sanctions are the way to tackle backsliding.
b. Congress recommendations
Congress's approach to tackling backsliding should be similar to the EP’s in some ways. Establishing cooperation and dialogue with States’ legislative chambers would provide a better idea of how far along the backsliding process is and what action needs to be taken. Holding the executive accountable is extremely important to generate compliance. Nonetheless, the role of oversight of the legislative branch (Congress) over the executive must generate compliance with Constitutional values, instead of partisanship. That lack of commitment has been clear in several administrations, but most clearly in Trump’s abuse of the system (Kinsella, M., Weiner, D., & Lau, T., 2022).
One possible solution to generate compliance to the rule of law in Congress would be economic sanctions toward those that do not comply with the rule of law, be it the executive or even within the legislative chambers. This would mean having an active judiciary when it comes to issues of backsliding and sanctioning the parties involved. However, the real problem here is if the Constitution offers enough provisions to seek to sanction the non-compliant parties. As the US is deeply polarized, it becomes more difficult to ensure whether or not the Congress chambers would follow through with processes such as impeachment, or if there is a strong partisan bond.
Most radical authors, such as Edelson, have suggested a redraft of the Constitution (Edelson, C., 2020), due to the problem stated above. This would be done by adding mechanisms that would punish or stop those who do not comply with the rule of law especially when it comes to the executive. Especially when it comes to pardoning powers of the executive, in which the current limitations are scant. Although it may seem unrealistic, this option still seems reasonable when one considers the problems caused by polarization in the system of checks and balances.
c. Transatlantic recommendations
When it comes to Transatlantic recommendations, it becomes more difficult as it calls for political cooperation. However, something similar to what the EP has been pushing for with National Parliaments in the EU could also be established over the Atlantic. That is a system for the cooperation of legislative bodies in matters of backsliding of the rule of law, democracy, or ways to contain the executive. This would strengthen Transatlantic political relations but also create a framework for cooperation with common strategies for the legislative to tackle backsliding. The Transatlantic Legislators’ Dialogue would be a perfect initiative to include such a project in. Both cases share similarities that would facilitate this partnership, such as two legislative branches, but also the partition between the EU and the Member States, or the Federal Government and the State. Forming a common framework for evaluating approaches and outcomes that worked or failed in measurable situations could teach both sides how to better deal with cases of backsliding.
Lastly, it is necessary to renew citizens’ belief in democratic institutions, a union between legislative powers could make people feel more politically seen. Therefore, adding a system for normal citizens to go to the EP and the Congress to discuss the issues that they feel are not being addressed could make democratic representation feel less disconnected from their daily lives. In the EU, this already exists with the European Citizens’ Initiative and the Conference of the Future of Europe. Nonetheless, having several forums in which people themselves can bring issues to the chambers of representation could generate more trust in democratic institutions and compliance with the rule of law. This would be a way to connect people across the two sides of the Atlantic as well through a common interest in the protection of the checks and balances systems.
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