Democratic Backsliding and Illiberal Democracy in the EU – a twelve-point checklist

By February 8, 2018Uncategorized

Nick Sitter (Central European University)

Democratic backsliding has become a hot topic in the EU, not just because some states pursue policies that contravene their commitments to democracy and the rule of law, but because the EU is poorly equipped to deal with it. But what does democratic backsliding actually mean? This blog offers a short answer: the twelve institutional aspects of democratic backsliding.

The comparative politics literature covers three distinct aspects of backsliding – backsliding as a process that halts or reverses democratization; backsliding as an ideological alternative to liberal democracy; and backsliding in terms of bad governance.
The notion of backsliding as a process draws on the literature on democratic transition and consolidation, and involved analysis of dynamics that might halt or reverse these processes. Key features include decline in the rule of law and democratic practices, as well as concentration of political, social and economic power and the hollowing out of democratic institutions.

The notion of backsliding as a normative alternative to liberal democracy is linked to the classic ‘democratic dilemma’ – the balance between majority rule and minority rights. Its draws on the populist tenet that the true representatives of the people should rule more or less unconstrained. This brings into question the importance of independent media, civil society and separation of powers, inasmuch as the role of all organizations should be to support the executive.

The notion of backsliding in terms of bad governance is in many ways a mirror image of the academic debates about good governance. Corruption, rent seeking, abuse of public procurement, and the establishment of an oligarchy are classical elements. This can be extended to policies that directly contravene individual and human rights, and in the EU context, core EU values. The result is various forms of hybrid regimes.

In practice, the strategy of democratic backsliding involves four key elements in terms of political institutions – centralization of power, control of the electoral process, state capture, and limiting civil society. Successful pursuit of these goals can blur the boundary between party and state, to the extent that a façade democracy may be maintained by way of elections and institutions that formally resemble those of liberal democracies, but in practice amount to a one-party regime.

The following twelve paragraphs elaborate on the most important aspect of these four sets of institutional changes that a party-leader who has won an election might embark on to build an illiberal democracy.

1. The most urgent element of centralization of political power for an aspiring authoritarian leader is centralization of executive power by way of controlling the legislature. In the long term this might include changes to the legislative structure (e.g. elimination of an upper chamber); in the short term perhaps the easiest measure is curtailing consultation, debate, and scrutiny of parliamentary legislation, or limiting parliament’s ability to hold the executive to account.

2. The second, somewhat less urgent but equally important, step is to exercise control of the judiciary. Changing the personnel in the constitutional court and/or the court’s competence, power, or decision-making procedures is the most controversial type of measures. Other, less visible, forms of control include changes to the personnel, procedures and remits of the ordinary courts, or simply ignoring court rulings.

3. The most effective, but also the most difficult, aspect of institutional centralization is the adoption of a new constitution. If done competently (and unilaterally), with high thresholds for constitutional reform, this can lock-in the ruling party’s policy and personnel preferences for the foreseeable future – even in the event of a loss of power.

4. The whole point of illiberal democracy, however, is that the ruling party does not lose the next election to the ‘enemies of the people’. Re-designing the electoral system, or adopting a new tailor-made electoral law could help secure this goal.

5. But electoral reform is rarely enough. Unless it is banned out-right, a competent opposition might respond to the incentives of the new electoral system. It may therefore be necessary to allow for periodical review of the electoral law before each election (by a government-controlled body), e.g. re-districting and rules about candidate/list eligibility.

6. The third key element of institutional manipulation in the quest of re-election concerns amendments of the regulations for electoral campaigns, including campaign finance and political advertising.

7. Once victory is secured, a central tenet of illiberal democracy is that all power resides with the leadership. Democratic backsliding usually involves both an effort to capture the state and build an oligarchy. The most important measures include corruption, or more specifically a shift from ordinary corruption to grand corruption; from bribes in an open system to a closed system where public procurement, tax breaks or regulatory rules are designed to benefit the oligarchy.

8. Controlling the state apparatus also involves control of the ‘arms-length’ agencies of the state, such as the national audit office and regulatory authorities. Most liberal democracies are based on a number of independent agencies with a high degree of credibility. In the EU system this also extents to the central bank.

9. This third element of democratic backsliding and state capture involved the other levels of the state, including local and regional government – and, in the EU, representation at the EU level.

10. Unlike the classic authoritarian recipe (eliminating opposition), the illiberal democracy model involves limiting or marginalizing independent voices. Control of the mainstream media – print, broadcast and on-line – is perhaps the most important issue. Besides direct and active state ownership, media regulation and oversight is the most direct tool. But oligarchic ownership and political direction of state advertising to supportive outlets can also help.

11. In the same vein, limiting the freedom of action of independent interest groups and NGOs is a common strategy for both authoritarian states and backsliding democracies. In the EU context, this includes efforts to limit, penalize or stigmatize foreign funding – whether private or from international organizations.

12. Finally, in the long term, illiberal democracy also involves silencing independent voices that affect politics more indirectly, by way of culture and education. The list of civil society organizations that can be brought directly or indirectly under political control is almost endless, including e.g. universities, schools, theaters, sports associations, churches etc.

The point here is not to set out an exhaustive list of institutional measures that define democratic backsliding, but rather to focus on a limited set of key institutional changes that – if carried out with due care and attention – limit the operation of liberal democracy to the extent that the regime could be characterized as backsliding on democratic commitments.

Mild versions of many of these types of reform can be found in ordinary liberal democracies, but the higher the number that is combined and the more extensive the reforms, the more solid the basis for the backsliding diagnosis.

Moreover, these reforms must be evaluated in context. A remarkable feature of the recent illiberal challenge to the EU system has been its open attack on the whole idea of the open society, individual liberties and the rule of law – as well as international cooperation. Institutional reforms are supported by both words – the narrative about national, populist, illiberal democracy – and action. Each of the twelve sets of reforms include a raft of abuses of power by way of e.g. bending and stretching the rules on emergency measures, impeaching or arresting opponents, legislating against opposition parties, harassing media or civil society, abusing audit and inspection regimes, and – of course – using the oligarchy’s economic power to support the governing party and weaken the opposition. Even the occasional bit of political violence might be called for. Democratic backsliding is most easily identified in the form of institutional change – but illiberal democracy cannot work without persistent abuse of power and a good story to cover it.

The author is writing in a personal capacity and their views do not represent the TransCrisis consortium as a whole.