Vital Interests: Kim, you have been working on the issue of authoritarian democracies and how this phenomenon is impacting the world. Can you give us an overview of how this evolved out of the constitutional democracies established in Europe after the dissolution of the Soviet Union? 

Kim Scheppele: We've just come off a really good run for democracy. After 1989, when the Soviet Union let go of Eastern Europe and then collapsed on itself in 1991, the world saw a record number of democracies. Almost every country that was freed from authoritarianism chose a democratic and constitutional path.  There was elation at the prospect that constitutional democracy had achieved a status as the proven, preferred governmental form - that all societies could now strive to create democratic institutions and guarantee rights.  

Then something happened. A lot of us who work on this professionally are still arguing over exactly what changed. What we have witnessed is a new generation of leaders, trained under this new democratic resurgence, who began to realize that they could compromise democratic governments while still leaving the shell of them intact. Many governments now look like democracies. They have regular elections and the same leadership keeps getting reelected. The same leaders are also genuinely the most popular candidates in their political spaces, yet what those leaders are doing is undermining the conditions that are necessary for democracies to be real and not just facades.

As it has become clearer and clearer, that it's possible to undermine democracy through elections and to maintain the appearance of a democracy without any of its content, - this new form of authoritarian democracy has been spreading all over the world. That's the problem that we see now. When you say authoritarian democracy, that exactly reflects the conceptual dilemma we're in. How can it be authoritarian and yet a democracy? The answer is that these governments are autocratic under the surface and democratic on the facade. This difference between appearance and reality allows these new leaders to fool people for long enough until the label of democracy then finally falls off as the last stage of a new autocratic regime.

VI: Can you walk us through how this perversion of democratic institutions is orchestrated? How do these authoritarian leaders with authoritarian ambitions manipulate legislatures and courts? 

Kim Scheppele: There's a script that these new autocrats follow. Once you know the script, you can see it being actualized in a number of new democracies. Individuals who don't themselves have a very good democratic past run for office and get elected. While these candidates win their first elections usually freely and fairly, they often have autocratic backgrounds. In Hungary, for example, when Viktor Orbán was first re-elected as Prime Minister in 2010, he was head of a party that had never had anyone else as its leader. Orbán was the only head of his party for more than 20 years, which certainly demonstrated that he didn't have much respect for the democratic rotation of power.   Hugo Chávez in Venezuela came to public attention when he tried to lead a coup against the government a decade before he was elected president in a free and fair election; people seem to have forgotten his origins.  

The same is true with the person who's pulling the strings of power now in Poland, Jaroslav Kaczyński. The party he heads up started as a vehicle for himself and his twin brother and has never been run by any other hands. Their first run in power ended early in disaster.  Vladimir Putin has used the vehicle of his United Russia party to win repeated reelection, in a situation where there is virtually no competition. In Brazil, Jair Balsonaro came to power at the head of his own social movement which has never been democratic in its internal organization.

If you look at the backgrounds of these guys who come into power, who win elections and then destroy their democracies from within, there were all kinds of signs that their times in office were not going to go well. They presented themselves as democratic candidates and often ran on perfectly sane and sensible platforms.  But there were clues in their backgrounds that they weren’t really democrats.

Once they got into power, they systematically started dismantling all constraints on the executive in their respective systems. They implemented lots of legal reform; these radical changes were not accomplished through radical methods, but instead through ordinary lawmaking processes.  Sometimes, as with Orbán and with Chavez – and Rafael Correa in Ecuador was another one – these new autocrats completely rewrote their national constitutions. They literally called a constitutional convention or initiated some other process, and they rewrote the whole constitution. These constitutions look fine on paper, but if you check out how things work beneath the surface, it turns out that the executive is free and clear of constraints. 

If the government doesn't have a constitutional majority then constitutional change will be delayed until the autocratic leader has amassed more power. We see this in Poland and now in Russia where a confident Putin is pushing for changes in the Russian constitution. Erdoğan also waited a while in Turkey before he changed the constitution. That doesn’t mean that these leaders just bide their time.  Instead, leaders with authoritarian visions take legal steps right away by curbing the independence of the judiciary. This is a priority because the court can thwart their plans and a compliant judiciary ensures fewer barriers to their eventual power grabs.

The easiest way to escape constraint by reining in the courts is for these autocrats to pick judges who owe them something and who definitely won't tell them no. That happened in Hungary and is now far along in Poland. Judicial independence is one of the first casualties of these new autocratic regimes. 

Another major casualty is a free and pluralistic media. In many cases, these autocrats come to power already having a big chunk of the media spectrum in their pockets. You can think of the tabloids in the UK with Boris Johnson, or you can think of Fox News in the U.S. Similarly, Orbán's oligarchs owned a lot of the Hungarian media before he came to power in 2010. Those media outlets already provided a platform for these budding autocrats to put their view of the world out in public. Then, as soon as the autocrats captured the state, they took over the state media, and then often put in place regulations that punish journalists who criticize them. Attacking the remaining free media as “fake news” is another common strategy.

Once the judiciary and media are under their control, these new autocrats then attack the ability of the civil sector to organize against them. They enact new laws about the funding of NGOs, so-called transparency rules that require NGOs to disclose foreign contributions while, by the way, at the same time, nobody knows who the government is funding in the “independent” civil sector. There's a wacky transparency where the government goes under deep cover, and the whole civil sector has this spotlight shone on it to make every single interaction in opposition groups totally visible to the state, but also for public criticism.  It’s as if the usual democratic rules are reversed – the government becomes immune to freedom of information requests but every action of its opponents is laid out for all to see.  

It's also important to autocratic consolidation that these guys take over what I call the repressive offices. One of the first things an autocrat wants to do is to control what would be the attorney general position, it's the justice minister or public prosecutor in a lot of other countries. Whoever can bring criminal charges against people and use the criminal law to investigate opponents – they are the targets of takeover.  It’s very convenient to be able to block prosecution of your own people while targeting your rivals.  

Similarly, with the police, with security services, intelligence services and the tax officers – everyone who can investigate and arrest or fine people even if those targets of investigation have done nothing wrong. Taking over these offices can put an autocrat's opponents under pressure and can tie them up in endless trouble. The autocrat doesn’t have to win all of the cases against his opponents; he only has to tie them up in endless investigations and litigations, thereby distracting them from things they might do to oppose him.   As part of this campaign, autocrats de-legitimate the political opposition. The opposition parties are not just groups with whom the autocrats disagree, but are people who are disloyal to the country or are massively corrupt or are part of some giant international conspiracy or whatever negative connotation will turn the public against them.

Finally, as a coup de grace, before they come up for election the next time, the new autocrats rewrite the election laws, capture the election machinery, and make it very difficult to have a free and fair election the second (and third and fourth) time around. They still maintain the facade of running democratic elections, but by the time they come around to reelection, the system is very often rigged. 

That's the script that these guys follow. A lot of it is very easy to hide, especially once the courts can no longer say no to you, and once the media trumpet their praises without permitting very much criticism.

VI: Isn't another characteristic of democratic regimes trending to authoritarian practices a move toward nationalistic populism?

Kim Scheppele: Yes. Now, this is where I tend to disagree with a lot of my fellow writers on populism. It's true that in many of these governments what you've got is a massive distraction campaign going on that gives the whole autocratic takeover a populist flavor.  So yes, autocrats often pick an enemy and target it to create the feeling of the embattled “us” versus the threatening “them.” Viktor Orbán, of course, blamed Hungary’s plight on waves of migration. If you followed Orbán closely, though, he was blaming migrants two years before they showed up.  As he well knows, you don't even actually have to have an enemy to blame it and whip up public hysteria against it. 

When Jaroslav Kaczyński came back into power in Poland, the first thing he did was to reopen an investigation into a 2010 plane crash in Russia that killed his twin brother and a lot of the military elite of the country. It was a plane crash that had been thoroughly investigated and all investigators agreed that the crash was caused by a combination of pilot error and the weather. Kaczyński reopened this investigation, claiming that there was a Russian plot against Poland that the prior Polish prime minister had participated in. Russian threats are, of course, one of those old distractions that Poland has been preoccupied with many times in its history, often with good reason but now, at the moment, the threat is largely invented because, whatever else Russia is doing, its government did not bring down that plane.  Never mind – Kaczynski hauled in the previous prime minister – at the time the President of the European Council – for cross-examination.   

A number of the autocrats are making right-wing nationalist appeals, creating conspiracy theories, and fanning a sense that there is an enemy that is coming to get us and only I, the fearless leader, can protect you from that enemy. Part of Orbán’s campaign against migration includes veiled appeals to anti-Semitism when he claimed that George Soros is engaged in a plot to achieve multiculturalism by driving Islamic asylum seekers toward Europe.  I don't think Orbán is personally particularly anti-Semitic, but anti-Semitism is a deep well of bad attitudes in Eastern Europe. So, to mobilize these attitudes, Orbán is constantly erecting statues to raving anti-Semites, and then all of his liberal critics run over and protest the statues. In the meantime, Orbán shovels a bunch of toxic legislation through the parliament while no one is looking. Orbán anti-Semitism allows him to hide the more important project of consolidating power and eliminating checks and balances behind a cover that completely distracts his critics. There are equivalent campaigns in left-wing populism in Latin America, so autocratic consolidation doesn’t have an automatic political direction, but the autocrats share the need to create enemies, however imaginary, to hide their consolidation of power.

As you can see, I don’t think that populism is the right label for what is going on.  These ideological appeals that get analysts talking about populism are covers that distract the public from the consolidation of power through law. Autocrats are using their majorities in Parliament and the superficial appeal of legal change to remove all the constraints on the executive so that the executive can rule, unconstrained, for an unlimited period of time.  The law part is really technical and so easy to hide from the lay-person. The distraction of populist appeals keeps people from figuring out what's really going on.  But the relentless press to free the executive from legal constraint through law shows that autocracy is the real goal and populism is just the cover story.  

I think the ideological appeals of the new autocrats are mostly distraction, rather than being something the leader believes in or the force that is really holding them in power. These populist appeals are dangerous by themselves, worthy of objection because they harm real people like the members of the opposition or desperate asylum seekers.  But ultimately, populist appeals are a way of distracting the citizens from noticing the crashing of their constitutional governments going on underneath the surface.  

VI: Is there a playbook for autocrats? Where do they get their techniques and methods? Is support coming from well-established autocratic regimes? For example, do you see Russian influence in what's going on in Hungary and Poland and other right-wing movements in Europe? 

Kim Scheppele: Vladimir Putin is playing a weak hand very well in terms of increasing Russian influence in different parts of the world, but actually, the role of Russia in providing ideas for this movement has been relatively small. The one thing to note is that Putin is a lawyer and many of the people in Putin's inner circle are lawyers. The tactic that Putin initiated was changing laws to concentrate power. In fact, I worked at the Russian Constitutional Court in 2003, which was three years into Putin's reign, when it wasn't clear he was an autocrat yet but in retrospect of course the signs were there.

Putin won his first election in 2000 relatively fair and square. The elections didn't have a very well worked out party competition at that time, so the election was his to lose. Putin then started changing the laws quite rapidly, and most of the changes he made in those early years were actually very sensible. I was a supporter of Putin back then because he finally got the Russian Duma (parliament) to pass framework statutes to create a coherent legal system where there had been only a field of presidential decrees. But then Putin started using the excuse of terrorist attacks that Russia was routinely subject to in those years for more questionable “reform.”

Russia was plagued with terrorist attacks growing out of the war in Chechnya, and those attacks spread into Russia itself. In particular, the attack in Beslan in 2004 killed a lot of school children on their first day in school and that was a turning point. In reaction to that terrorist massacre in Beslan, Putin initiated a wave of legal reforms that went well beyond what it would take to stop terrorism.  He cancelled the election of regional governors across the entire country and instead gave himself the power to appoint them without needing permission from any other branch of government. He eliminated all the independent members of the Russian Duma by requiring all candidates to run on party tickets where the party had substantial support in most of the regions. He instituted technical rules about how elections would be run in such a way that it eliminated virtually all of the organized opposition in the Duma.

Liberal opposition to Putin was always concentrated in the big cities. If you could reduce the influence of the big cities in elections, you could pretty much dilute that liberal opposition, which was what Putin did by requiring all candidates for parliament to run on national tickets. There were a number of things like this that Putin did to consolidate power, and a number of those techniques were picked up by other autocrats in training.  Surely the general idea that one could use what appeared to be ordinary legal change to consolidate power was given a big boost by Putin’s reforms.  

But the really influential tactics have come from elsewhere.  Let me give you one example. Recep Tayyip Erdoğan in Turkey started off again as a fan favorite. He won elections that were free and fair, and actually, a lot of his early reforms were progressive ones designed to bring Turkey into the EU. He didn't look like a bad guy for quite a while.   His popularity and initial concern to make Turkey more compliant with the European Convention on Human Rights generated praise.  

When the EU turned its back on Turkey, I believe Erdoğan started thinking, "Well, now what?" He began moving in a more autocratic direction. One of the opponents he had to neutralize in order to seize power was the Constitutional Court, which could reject his proposals. What did he do? What every ordinary autocrat would do is pack the court with his own people, but then it would be evident what's going on, and that de-legitimates the move.

What Erdoğan did was something much more clever. Erdoğan pushed through the parliament a law that allowed everyone whose individual rights had been violated to take their cases directly to the Constitutional Court. In other words, his reform looked like a giant human rights initiative. What were the rights people were complaining about? "My pension check didn't come," or, "I showed up to vote and I was not in the voter registry." Lots of things that matter hugely in the life of an individual but they're not necessarily regime-shattering when you process them one at a time. Erdoğan created this flood of cases at the Constitutional Court because thousands of individuals started bringing their cases there. Then he said, "Oh, the Constitutional Court needs support. I think we should increase the number of judges and I will appoint more."

At that point, everybody thinks, "Wow, look at what a supporter of human rights this guy is," as he packs the court with his own people. For people who were on the inside of that system, they could see exactly what he was doing, but to outsiders, it looked like Erdoğan was defending and supporting human rights.  

Erdoğan got away with his court-packing plan, and then one year later, Victor Orbán did the same thing in Hungary. This was not just a coincidence.  I've gone back and you can track that Orbán sent his foreign minister and his justice minister to Turkey; they had all these high-level meetings before Orbán copied Erdoğan. I think that they were trying to figure out how it was done. Again, when Orbán did it, it didn't look immediately like it was court-packing. It looked like Orbán was just defending human rights by expanding the jurisdiction of the Constitutional Court to hear hundreds and thousands of small-scale cases. The Constitutional Court, which is like the U.S. Supreme Court in that judges are appointed directly to that bench, was then packed with Orbán supporters, all in the name of increasing the enforcement of rights. 

But this was not enough for Orbán. His next question was:  How do you capture the regular courts, where people go for ordinary civil disputes and where ordinary criminal cases are brought? Orbán had this really clever idea because in Hungary, and most countries in the world, the courts are run in a system like the civil service. You go to law school, you specialize in judging, you come out and get a job as a baby judge and then you get promoted in the system if your performance is good. Your performance is assessed by other judges, which maintains judicial independence, so your career is insulated from politics.  But the highest judges in the system are also the most senior, in status as well as in age.   

In a system like that, Orbán came up with this brilliant idea, "Let's lower the judicial retirement age."  His excuse was, "Let's lower it so that all the people who got their law degrees under communism are excluded from the judiciary because you don't want communist judges." Never mind that at the time he did this, these judges had been there for more than 20 years after the end of communism, and nobody thought Hungary was still a communist country except maybe Orbán. Anyway, he got the Parliament to pass a law lowering the judicial retirement age. What that did was to lop off the entire leadership structure of the judiciary, essentially firing all those who had been promoted into those positions as the result of a long career of judicial service.  He got rid of those who were the most senior judges. 

With this policy Orbán fired 15% of Hungarian judges. By lowering the retirement age from 70 to 62, he got rid of a third of the Supreme Court. and two-thirds of the court presidencies throughout the country. Then, because he also changed the system for appointing new judges, he just plugged all of his own new people into all those positions, and voila, the judiciary was captured.   

Then a year later, Mohamed Morsi in Egypt did the same thing. Here too you can trace these high-level meetings between the justice ministers and the foreign ministers of Hungary and Egypt.  One of my Egyptian friends tells me, "The Hungarians are always there in the middle of these conversations," when Morsi and the Muslim Brotherhood began their constitutional reforms. Apparently, the Hungarians are even there now under General Sisi.   

This is what is fascinating about the new autocracy:   You get these technical solutions that don't look like the old-fashioned way of capturing a government.- Nobody's going in and firing all the judges wholesale or closing the courts or doing the kind of things that get international attention. There are no coups, no tanks in the streets.   These reforms all look like technical fixes, many of which appear designed to promote the rule of law instead of to undermine it. Orbán generated this idea about lowering the judicial retirement age to behead the judiciary, and then he exported his execution techniques to Egypt. Now Poland has done the same thing, though the Polish government is finally getting some serious challenge from the European Union.  

Now, a crucial reason why I bring up the example of Orbán copying Erdoğan with one reform, and then inventing and passing on another reform to Morsi is that, if you've been following the career of Viktor Orbán, the thing he's most famous for is his Islamophobia. When the migrant crisis happened, he said, "We don't want Christian Europe being polluted by all these Muslims."  That’s why people think he is a populist. But then just wait and see who he talks to about autocratic constitutional ideas! Turkey which is a majority Muslim state. And when Orbán first started working with Egypt, it was in the hands of the radical Muslim Brotherhood government. 

That's why I think that the autocratic consolidation of power is quite independent of ideology. If you look at the cover stories that these regimes tell about themselves, it turns out that what their governments are doing, what these autocrats are doing under the surface to cement their control, has not much to do with that ideology. Autocratic consolidation and populist rhetoric are really on separate tracks.  The new autocrats take ideas where they find them and pass them on to other budding autocrats seeking to undermine democratic government. What they then tell their publics as a cover story is whatever it will take to distract them.   

VI: That is certainly an interesting cross-fertilization of authoritarian tactics.

Kim Scheppele: The spread of autocratic tactics provides lessons for what's happening here in the run up to the American election.  The US is not immune from these global trends to pass legalistic techniques among autocratic leaders.   Let me give you one example where it seems to me like the Trump administration has exactly followed Orbán's script. That is with regard to migration. Trump, as you know, has made a big deal out of blocking migration. Legal, illegal, humanitarian, economic migration whatever. Any form of migration. Trump has tried to prevent all migrants from entering the US, including those seeking asylum, which is something Orbán also tried to do in Hungary. Their anti-migration campaigns are what makes you think both of them are nationalists, but when you look at what the US government did to block migration, particularly across the Southern Border, it almost exactly duplicates the strategies that Viktor Orbán used in 2015 when the big wave of migrants from Syria, Iraq, Afghanistan, and elsewhere, started coming through Turkey across to Greece and up to the Balkans then into Hungary.

What did Orbán do and what did Trump do? The first thing both did is to create a new physical barrier along the border as a photogenic backdrop for the whole campaign. Orbán put up a barbed-wire fence and Trump, of course, has been building his wall. The next thing you do is detain anyone who crosses into the country until their asylum claim is processed. Now, both in Hungary and in the U.S., there were so many people coming across the border claiming asylum that the standard solution had never been to detain them but to register them and call them back when their case was ready to be processed.  Asylum seekers in both countries – before Orbán and before Trump – would stay free until the time when their case was adjudicated. In fact, European law required that people not be detained pending review of their cases. But starting in 2015, Orbán immediately put everybody under detention, as Trump did only slightly later. Then, of course, when all migrants were detained suddenly in a system that was not prepared to detain everyone, you have a crisis at the border because you can't hold all those people in detention without humanitarian catastrophe. With the humanitarian catastrophe playing live on TV so that it’s clear what a problem there is, then you declare a state of emergency. Trump did it to build his wall and Orbán did it to give the police more powers to shore up his autocratic rule.   

Then, once you have declared the emergency and grabbed the powers you need to consolidate more power, you need to do something with all of those detainees.   Orbán decided that detained asylum seekers should actually be pushed back across the southern border and held in camps on the other side. Of course, this is also what Trump did. As Trump pushed asylum seekers back across the southern border, he made them wait in Mexico until their claims were heard.  

Back in Hungary in 2015, Orbán next declared that all the countries through which these migrants had come through Turkey to Hungary were so-called “safe states”. It’s true that in international law, people coming from safe states are generally not granted asylum elsewhere.   But Orbán pushed this logic to say that when asylum seekers passed through a safe state on the way to their final destination, that final destination had no obligation to grant them asylum because they were not in danger at the moment they entered the country where they planned to apply. They had already escaped danger when they passed through a safe state.   As Orbán made clear, "Our policy is not to accept anyone who has passed through a safe state on the way here. They have to apply in the other states." Then you saw Trump doing the same thing. He made an agreement with Guatemala and he is pressuring other states along the migration route, so that migrants will be required to apply for asylum in Guatemala or Mexico or somewhere else on the way. All the states along the route suddenly became the only places where people can apply for asylum, which meant that the US was no longer responsible for their claims. That’s precisely what Hungary did – push the burden off on Syria.  

Then there are very particular tactics to pressure the asylum seekers so that they won’t attempt to seek asylum in the first place. The separation of parents and kids is a major tool to break the hearts of the migrants and get future migrants to think twice about coming.  Orbán pioneered these specific cruelties by saying, "Look, these people are here illegally. We are not detaining them. They can always leave the country and go back through Serbia." Orbán then dismissed all obligations to the migrants: “They can always go back, so we have no obligation to feed them." Orbán then stopped feeding all the people in detention and said, "If you're hungry, you can just go over there to Serbia."   

Knowing it still had some international law obligations to meet, the Hungarian government realized that it couldn’t treat the kids the same way as their parents, so the Hungarian government then separated the kids from the parents. The Hungarian government has been taking the kids off to feed them and then bring the kids back into detention, which prevents the kids from sharing food with their starving parents. The separation of kids from the parents so that the parents can be treated much more harshly than the kids – also, incidentally running the risk of losing the connection between the kids and the parents when you separate them -- was something Orbán pioneered.  And we all know about the family separation policy that the Trump administration administered, breaking up families and then losing all traces of which kids belong with which parents.  

In short, the very specific forms of cruelty that Trump is engaged in are almost exact mirrors of what Orbán did just a year or two years before Trump did it. It looks like a very specific blueprint is being followed – and this particular blueprint is imported from Hungary.  

 One thing I try to do when I track the travels of autocratic ideas is to say, "Is this just a coincidence?  Isn’t this just what an autocrat would dream up on his own?" And then I try to find these examples like with migration or with the Constitutional Court jurisdiction or lowering the judicial retirement age, where the tactic in question is just a little too technical for somebody to have dreamed it up by themselves. Then I try to figure out, how did the later autocrat work out how to do what the earlier autocrat did? Did the idea spread through people? Can you document the track that the ideas took?

I think Trump is borrowing ideas from Orbán because there are multiple vectors of transmission.  Trump has had a lot of connections, direct and indirect, with Orbán. First, Trump brought into the White House an assistant called Sebastian Gorka, a recently naturalized Hungarian and UK national, who had previously served in the Hungarian Defense Ministry.  Gorka has good connections with Orbán’s team. If you read the Hungarian press, the whole time Gorka was in the White House, there were constant visits between the Hungarian foreign minister and others to the White House where Gorka would welcome them. Pictures of these meetings were all over the Hungarian press. Gorka was clearly one vector of contact. 

Then, there was also Steve Bannon, who has long been a strategist and close supporter of Trump.   Bannon tried to duplicate Trump’s success in Europe, and when he hunted around Europe for like minds, he found Orbán:  Viktor Orbán was “Trump before Trump," Bannon said.

It turns out now there is a close connection between the Secretary of Health and Human Services Alex Azar and his counterpart in Hungary Katalin Novák.  Hungary is now trying to encourage Hungarian women, or as we'd say in the U.S. “white women,” to have more kids. The Hungarian government is also deeply opposed to abortion, though abortion is not yet banned here. Hungary just nationalized all their fertility clinics and they're providing fertility treatments for free to Hungarian women. Minister Novák just came to the US to give a major keynote address at a conference that Azar ran, talking about how to increase the birth rate among endangered white people. That's another area where we might expect to see further cooperation.  There are all kinds of points of contact between the Orbán government and the Trump administration. 

You can see sometimes quite unlikely connections among the new autocrats when you go off looking for ideas for clever legalistic tricks.  If you, the new autocrat, want to use innovative tactics to whip up nationalist sentiments, but also want to come down hard onto the people who are really desperate, there are many models to try.  Orbán, for example, had a lot to offer Trump. Many aspects of Trump’s playbook were borrowed, almost every word and every chapter, from Hungary. But often autocrats borrow from multiple places.   

VI: Given the development of autocratic tendencies in Europe, are there mechanisms within the European Union that are supposed to monitor and somehow stem these anti-democratic forces?

Kim Scheppele: Yes, the EU now realizes that this is really serious and that it would have been good to have started sooner.  Orbán and Kaczynski pose real threats to liberal democratic norms. When Orbán first started all of this it was very hard to really determine how dangerous it was for some of the reasons I suggested. When a new leader is elected with a majority that can change the constitution at will and then he goes ahead and does it, that doesn't look like a particularly dangerous situation. It looks like responsive democratic politics.  

What I think the EU missed was the direction of change and the cumulative effect of the changes that were being made. If you suddenly put lots of judges on the Constitutional Court because you've increased the court's workload, it doesn't look dangerous, but if you then lower the retirement age which has the effect of knocking the whole leadership of the court off the bench, then you’re not dealing with ordinary reform. 

Actually, the EU did bring a very quick lawsuit against Hungary for the reduction of the judicial retirement age but they didn't have much imagination in working out what was wrong with this move under EU law. They accused Hungary of violating the law on age discrimination, when what Hungary really was doing was interfering with the independence of the judiciary. 

There was no concrete Black Letter law in the EU at the time that said you had to maintain an independent judiciary and evidently the European Commission did not want to make such a bold claim at the start of this process, so they tried to curb the practice with a charge of age discrimination. The European Commission won that case at the European Court of Justice and the EU then said to Orbán, "Stop firing those judges and reinstate the old ones."   For a short while, it appeared that the EU had the upper hand.  

But Orbán was too quick for them. He had in fact replaced all of the judges by the time the European Court of Justice got around to making that decision, and Orbán then said to the EU, "So what do you want me to do? Fire all the new judges?" Of course the EU would never require this, because it would seem to repeat the offense, even if those judges were put there in order to tilt the courts toward Orbán. To placate the EU, Orbán offered all the fired judges their jobs back, but in the meantime, he changed the pension law so that all these judges- who had already started getting pensions -- would have to give up the pension forever if they went into the judiciary. It looked like a perfectly reasonable law against “double dipping.”  There was another disincentive for the judges to go back too. These prematurely fired judges occupied positions that had all already been filled, so they were being offered jobs as junior judges with lower salaries. Between these two financial incentives, it made a lot more sense for them to just take their pension and retire.   

As a result, hardly any of the fired judges returned to the bench, but Orbán could say that he had offered all judges the option to become a judge again. Then the EU was caught in a bind, wondering, "Well, what can we do?"  The European Commission had done all it could within the limits of EU law, but Orbán was just much more clever and outsmarted them. The European Commission could do nothing but declare that Orbán was in compliance with EU law at that point.  

Sometimes I think that the EU has learned its lesson from these early failures.  It intervened much more quickly once Poland started going down the same track as Hungary.  But the European Commission still almost always does too little and definitely it acts too late.  That’s why the EU has not been very effective so far in halting the spread of autocracy among its member states. 

VI: Kim, given these realities, are there any possibilities for opposition within these countries to develop and counter the new autocrats? Are there viable opposition parties in Poland, in Hungary, in Turkey, in Venezuela?

Kim Scheppele:  Now that we've seen what can happen in a short period of time, it's clear that if opposition is going to work, it has to start early. There was a period of time in all of these countries where people are saying, and you see it in the US too, "Is it really that bad? Maybe we'll get over it," or, "It can't be that bad because after all we still have a normal life. There are no tanks in the streets.”  People are in denial in these situations way too long.

Of course, people would know what to do if these new autocrats just staged an old-fashioned coup.  But stealth takeover through legal changes has the same effects as an old-fashioned coup without the warning signals.  Either way, you get an entrenched ruler who can no longer be removed through constitutional channels. You really need an opposition to stand up to this sort of thing early before it gets entrenched. That's really the best way to fight it.

In Poland, the professional media are still reporting facts as they happen. There are still opposition groups; there are still opposition political parties that could govern if called upon to do so. It's pretty clear in Poland that things have not gotten so far that they can't be reversed. But that situation changes minute by minute.  

In Hungary, I’m afraid, the Orbán government is already so entrenched that it is hard to see how he can be peacefully removed before he is willing to go.  At the last party congress, Orbán’s supporters were wearing Orbán 2030 t-shirts, implying that they were willing to support Orbán in power for 20 years, far longer than any democratic leader should stay in office.   And, to continue our theme about autocratic imitation, the backs of those t-shirts said: Make Hungary Great Again!  

But what can be done in a case in which autocracy is not fully consolidated?  In the Polish case, the EU has been fighting to try to keep the Polish judiciary independent, though it's very hard because the Polish government is determined to take over the courts. You always have an advantage if you're on the ground, know the local terrain and speak the language. It's a bit like guerrilla warfare. It's very hard for an occupation army to come in and fight door-to-door in a city that it doesn’t know well, and that's the way external organizations have to fight these things if they don't have a lot of troops on the ground, so to speak.  International assistance only works in these situations if there is a strong opposition ready to actually carry on the fight.    

Basically, the EU or any other international organizations would need an opposition on the ground to work with because they can't leverage legal change from the outside. In Hungary right now there’s a very weak opposition. Almost all the media are in Orbán's hands. The political parties that have managed to so far successfully oppose him are very tiny, underfunded, and often infiltrated with Orbán's spies. Civil society has been attacked with measures that attempt to defund it and threaten its leaders.  Turkey is the same, only by now it’s even worse there.

There's a point at which things tip so far that it's extremely hard to generate the resources inside the country needed to counter these autocratic governments. That’s why I am always saying that you have to fight hard not to lose your democracy and constitutional government in the first place. You've got to be really vigilant. That little voice that sits in the back of your head and says, "Really it's not that bad," or, "Our constitution was written by geniuses. What can go wrong?" – that’s the voice that is really telling you that something is not right.  

All those little voices that tell you it's not that bad are really saying that something really awful is happening. We all need to learn to listen to those voices.   If a leader is acting like an autocrat by removing checks on his power, acting arbitrarily to marginalize anyone who can oppose him, packing the courts with his own people, taking over the prosecutor’s office and going after his rivals, attacking independent media and civil sector groups, and removing all legal checks on what he is allowed to do, then chances are that you have an authoritarian on your hands who must be fought at every step.   

In the US, and I'd say that Britain is another example, we are seeing massive changes to the law being enacted that could well entrench executives in an almost king-like position for a long time.   As people get educated into the new ways that autocrats hollow out constitutional norms so that they no longer work as they're supposed to, then it seems to me publics must be mobilized to use whatever levers of influence are still available to them. Elections, even though they're no longer level playing fields, may still be possible to win, if the opposition can unite. Civil society mobilization, media investigations, and the close-up criticism by the parliamentary opposition are meant to be the weapons in a democracy that allows a democracy to be self-sustaining. No one can take those things for granted.They are even more important now than ever.

 VI: You have provided insights about what's going on in countries where the rise of authoritarianism is cloaked in the guise of constitutional democracy. What you're advising candidates and people involved in the elections and the American public is that vigilance is the absolute necessity. That we cannot shut our eyes to encroachments on democratic institutions and our values.

Kim Scheppele: Exactly. Vigilance is absolutely crucial -- and also action. People who have never gotten involved in politics now need to do something to maintain democratic governance.   Don’t be afraid to stand up and fight to maintain your own democratic government in good working condition! Politics has become too important to leave to the politicians.

Professor Kim Lane Scheppele is the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Woodrow Wilson School and the University Center for Human Values at Princeton University. From 2005-2015, she was Director of the Program in Law and Public Affairs at Princeton.  Scheppele’s work focuses on the intersection of constitutional and international law, particularly in constitutional systems under stress.  After 1989, Scheppele studied the emergence of constitutional law in Hungary and Russia, living in both places for extended periods. After 9/11, she researched the effects of the international “war on terror”; on constitutional protections around the world.   Since 2010, she has been documenting the rise of autocratic legalism first in Hungary and then in Poland within the European Union, as well as its spread around the world.  Her many publications in law reviews, in social science journals and in many languages cover these topics and others.   She is a commentator in the popular press, discussing comparative constitutional law, the state of Europe, the rule of law and the rise of populism.  Scheppele is an elected member of the American Academy of Arts and Sciences and the International Academy of Comparative Law.