When election losers pretend to be winners

COMMENT | Jan-Werner Mueller |  More than two months after the decisive victory of pro-democracy parties in Poland’s general election, opposition leader Donald Tusk has finally been sworn in as prime minister. Initially, Mateusz Morawiecki, his predecessor from the right-wing populist Law and Justice (PiS) party, had been reappointed by President Andrzej Duda, beholden to PiS, under the pretense of forming a government. Predictably, he failed to win a vote of confidence in parliament.

This stalling tactic – not illegal, but clearly illegitimate – is part of a worrying trend in democratic elections, whereby the losing party refuses to accept defeat. Obvious examples include the riots in Washington, DC, in January 2021 and Brasília in January 2023.

But there are far subtler strategies to deny election outcomes. They are pursued quietly in offices, rather than in violent clashes with police. The protagonists are not militia members or hooligans dressed in the colors of the national soccer team, but clever lawyers pushing the rules of the game to their limits – what scholars are calling “autocratic legalism.”

Representative democracy is built on the belief that the loser in an election will always get another chance to form a majority, and that no political decision is irreversible. The first is a reality in a system that adheres to the idea of “repeat play” – no election is ever the last. But the second is more of a stretch, because policies have consequences that can never be undone, even if the incoming party radically changes course.

While new governments never quite start with a blank slate, they can make three legitimate requests of outgoing administrations: not to make last-minute appointees or policy commitments, and, above all, not to make structural changes that diminish the powers of the office.

Poland’s right-wing populists managed to maintain their grip on the levers of power by taking the maximum time allowed by law for each decision. Duda waited as long he could to appoint a prime minister. While he knew that Morawiecki did not have a majority in parliament, Duda could claim that PiS should be given the first chance to form a government because it was the party that obtained the most votes in the election. Morawiecki, in turn, delayed the presentation of his government to the Sejm (the parliament’s lower house) until the last possible moment.

Accompanying these moves was a litany of accusations by PiS leader Jarosław Kaczyński, who claimed at various points that the election had been manipulated, and that it had been stolen by external forces (especially Germany). As recently as this week, Kaczyński complained that the European Union sought to replace the Polish state with a territory where Poles reside but which is run by Brussels or, ultimately, Berlin. He portrayed the handover of power not just as a mistake (as any politician in a democracy might say) but as a betrayal of the country (as only right-wing populists and aspiring autocrats would allege).

During the time bought for PiS by its puppet president, the party appointed loyalists to positions in state agencies and commissions. It will be virtually impossible to remove these people, even if they make Tusk’s life extremely difficult, because their appointments were not technically illegal.

The PiS government also shoveled money into foundations and institutes promoting its pet causes, including “Christian heritage” and nationalism. Such places obviously provide sinecures, but they can also exert a long-term influence over political culture. More ominously still, 11th-hour changes to the judicial system, which included lowering the quorum requirement for court decisions, will ensure that judges appointed by Duda are likely to prevail in coming years.

To be sure, parties without autocratic tendencies have also set policy traps for their successors – though usually before calling an election that they expect to lose. In the United Kingdom, for example, the Conservatives enacted stringent spending limits ahead of the 1997 general election, which the opposition won by a landslide. The incoming Labour government, fearful of appearing fiscally imprudent, stuck to them. (The Tories later admitted that they would not have done the same.) This resulted in the – entirely unnecessary – underfunding of British public services. Labour in turn, raised taxes and passed progressive legislation just before the Conservatives returned to power in 2010.

Despite being unfair, such policy traps can be detected and, in theory, removed. Far more challenging are situations where structural changes incapacitate election winners. When opposition parties won mayoral elections in Istanbul and Budapest, national governments led by right-wing populists simply cut the cities’ financial means and competencies. In North Carolina, an outgoing Republican governor, with the help of the state legislature, stripped his Democratic successor of important executive powers.

What can be done to stop legalistic autocrats? For starters, new rules could make it harder to push through last-minute appointments. Of course, as with so many measures to safeguard democracy, the problem is that rules presume what they are meant to guarantee. In 2016, US Senate Republicans argued that a president should no longer nominate judges to the Supreme Court in an election year, only to do an about-face when they had a chance to install their own nominee right before the 2020 election.

Outgoing governments – which are effectively caretaker administrations – should be obliged to provide additional opportunities to debate legislation. This would slow any changes and provide much-needed publicity, though, as we have learned the hard way in recent years, transparency alone will not do the trick: aspiring autocrats, especially ones pursuing legalistic strategies, are simply becoming too shameless.

But there can be no shaming at all unless we know what an outgoing government is doing. Opposition parties and even civil society can at least push back against losers pretending to be winners. After all, they do have a majority on their side.

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Jan-Werner Mueller, Professor of Politics at Princeton University, is the author, most recently, of `Democracy Rules’ (Farrar, Straus and Giroux, 2021; Allen Lane, 2021).

Copyright: Project Syndicate, 2023.