Criticizing European Union institutions, and demanding that they be reformed, is a popular pastime. But as the EU’s unified front in the never-ending Brexit negotiations has made clear, European institutions are remarkably effective in managing political diversity. Perverse as it may sound to some, nation states can learn from Europe in addressing their own democratic deficits.
Such shortcomings are especially apparent in Poland, where a highly centralized political system creates a pernicious winner-take-all dynamic. Because the party in power relies on a fleeting majority, it has a strong incentive to lock in its legislative achievements through constitutional overreach. This has left the electorate highly polarized and Poland mired in an ever-deeper political crisis, owing to a lack of consensus regarding basic institutions.

Both of us are outspoken opponents of what we believe has been an unconstitutional takeover of independent institutions by Poland’s ruling Law and Justice (PiS) Party. But we also acknowledge the genuine popular support that PiS continues to enjoy.

In an attempt to help defuse political tensions, we co-founded #ZdecentralizowanaRP, a non-partisan initiative to reform Poland’s system of governance. About 100 of the country’s public-policy experts have now developed a proposal (available at www.ZdecentralizowanaRP.pl) that seeks to decentralize the political system by incorporating the best elements of the EU’s decision-making structures.

Global quest for decentralization

This decentralization debate is by no means limited to Poland. In a letter to the French people in January, President Emmanuel Macron pointedly asked whether the country’s famously centralized state should devolve more decision-making powers to subnational governments [1]. In more decentralized Germany, meanwhile, Bavarian Minister-President Markus Söder – who also leads the Christian Social Union (CSU) – has warned the central government against further eroding the powers of the country’s Bundesländer (federal states) [2]. His sentiments are echoed by the Greens and Free Democratic Party (FDP), who protest against ‘the centrally controlled state’ [3].

Britain’s opposition Labour Party leader, Jeremy Corbyn, has said a Labour government would consider replacing the House of Lords with an elected federal senate [4]. And the Democratic Party in the United States, faced with an increasingly conservative Supreme Court, is suddenly warming to the idea of states’ rights [5].

Intuitively, some form of decentralization should be helpful to better manage high degrees of political conflict. But which form exactly? As the late Elinor Ostrom, Nobel Prize–winning co-founder of New Institutional Economics, observed in her classic Governing the Commons (1990) [6], ‘institutional details are important’, perhaps more so than institutional generalities.

The EU as a model

The EU’s governance system offers an appealing model for decentralized, multi-level governance. From the beginning, the EU institutions were intentionally built to balance opposing interests and to come up with compromise solutions. This could be seen in March 2019 when the six-month Brexit extension was worked out, despite the vastly differing opinions of France and other member states.

This compromise approach is often portrayed as directionless by its critics. But the Brexit negotiations have demonstrated its benefits. For three years now, the community of 27 widely distinct countries has managed to stay united vis-à-vis an increasingly dysfunctional United Kingdom.

Critics tend to benchmark the EU’s performance to some stylized policy ideal. But it is worth comparing the EU with the performance of actual democratic nation states. Against that background, the EU’s ability to guide the extraordinarily diverse community of more than 500 million people towards sensible policy projects, from the single market through the banking union to the Climate Change Programme, is truly remarkable. Even leftists, worried about decentralization inevitably bringing economic inequality, must notice that the EU has been an effective (if surely imperfect) vehicle for economic convergence – first for Southern Europe and Ireland, and now for Central Europe.

Three virtues of the Council

What exactly can our increasingly deadlocked national democracies incorporate from the EU’s system of governance? To better manage deepening political and ideological polarization within Poland, our reform proposal draws inspiration from two key EU institutions: the European Council, where heads of state or government set the EU’s general political direction, and the Council of the European Union, where member states’ ministers decide on European legislation. This ministerial Council acts primarily as a powerful European senate – the legislative upper chamber approving all EU laws. However, the Council is actually superior to, say, the US Senate, for three reasons.

First and most importantly, the Council includes members of national governments as opposed to full-time legislators. While Baron de Montesquieu would roll in his grave, the combination of the lower-level executive authority with higher-level lawmaking powers makes our ‘European senators’ much less prone to grandstanding and obstruction.

Second, the ex officio membership means that Council members change only gradually and are less susceptible to electoral waves. It also creates a culture of continuity, moderation and professionalism.

Third, all Council members, and the states they represent, have broadly equal rights and responsibilities. In the Council itself, the Treaty of Lisbon introduced a voting system based simply on represented population. In general, while symmetric decentralization produces remarkably stable institutional systems (Germany, United States, Sweden), asymmetric decentralization, in which some regions get more rights than others, often leads to problems of the Scottish or Catalan type. Indeed, it is no coincidence that the EU too is now facing the ‘secession’ of the one country that has always been offered special deals and exceptions in the generally symmetrical governance system of the Union.

Multi-level governance for Poland

The #Decentralized RP project envisages the use of the European Council and EU Council model at two levels of power in Poland. First of all, the new formula of the Senate of the Republic of Poland transforms this institution into a chamber composed of 16 self-governing voivods – which function we would combine with the function of voivodship marshal. These hosts and representatives of each of the Polish voivodships will be elected – depending on the decision of the given voivodship – either in general elections or by the regional council.. The national Senate (the upper house of the Polish parliament) would become a chamber comprising the elected governors of Poland’s 16 voivodeships. At the regional level, 16 voivodeship senates would be composed of all the mayors from a particular voivodeship. The votes of governor-senators and mayor-senators would be weighted in accordance with the population each represents. Furthermore, both the national and voivodeship senates would have the power to veto legislation.

The national Senate would be politically diverse, encompassing the country’s conservative south-east and progressive north-west. If our system was in place today, governor-senators from PiS would have 44.5 per cent of the votes in the Senate, while those from the Civic Platform (PO) – 48 per cent. Voivodeship senates would contain a similar mix, given that Poland’s cities tend to be more progressive and the countryside more conservative. Moreover, the executive responsibility of governors and mayors would give them an incentive to seek constructive compromises on important policy proposals.

As with the European Council, membership of the national Senate would change only gradually, because voivodeship elections would be staggered. Such continuity is particularly important given that the Senate would confirm members of independent institutions such as the Constitutional Tribunal, the Supreme Audit Office and the National Bank of Poland. Our proposal would therefore strengthen these institutions’ democratic accountability by tying them to a much more stable and politically diverse body rather than to the prevailing national majority.

The proposal for both sides

Even Poland’s current PiS-led government has reason to be grateful for the EU’s governance system. The European Commission’s inability to pursue the so-called Article 7 procedure against Poland and Hungary, for alleged serious transgressions against EU values, may frustrate defenders of the rule of law. Yet it also shows how the EU’s structure protects even highly controversial member states from the political overreach of the majority.

At the same time, the EU is not powerless to act against member states that violate common rules, because Council members select the judges of the powerful European Court of Justice. The ECJ, which is hearing numerous cases concerning the PiS government’s alleged constitutional excesses, is arguably the last line of defence for the rule of law in Poland, given the depleted legitimacy of the country’s own institutions.

Europe is politically polarized and suffers from democratic deficits, but the EU’s governance system is not the primary cause. On the contrary, the effectiveness of EU institutions shows Poland and others how we can better manage our national political conflicts.

Maciej Kisilowski and Wojciech Przybylski

Maciej Kisilowski is a professor of law and public management at Central European University in Vienna and Budapest.

Wojciech Przybylski is the editor in chief of Visegrad Insight and chairman of the Res Publica Foundation in Warsaw.

A shorter version of this article was published by Project Syndicate in May 2019.

Footnotes:
[1] M. Emmanuel Macron, Letter to the French People (Jan. 13, 2019), available at: https://www.elysee.fr/emmanuel-macron/2019/01/13/letter-to-the-french-people-from-emmanuel-macron.en
[2] Thomas Vitzthum, Söder fordert deutlich mehr Rechte für die Bundesländer, Die Welt (Feb. 10, 2019), available at: https://www.welt.de/politik/deutschland/article188518607/Foederalismusreform-Soeder-fordert-mehr-Rechte-fuer-Bundeslaender.html
[3] Ricarda Breyton, Wir wollen keinen zentral organisierten Staat, Die Welt (Aug. 13, 2018), available at: https://www.welt.de/politik/deutschland/article181085996/Bildungspolitik-Laender-lehnen-mehr-Befugnisse-fuer-den-Bund-ab.html
[4] Chris Baynes, Jeremy Corbyn Puts Federal Government “On the Table” if Labour Win Power, the Independent (Aug. 26, 2017), available at: https://www.independent.co.uk/news/uk/politics/jeremy-corbyn-labour-federal-government-kezia-dugdale-devolution-scotland-wales-northern-ireland-stv-a7913876.html
[5] Cartie Werthman, Democrats are Becoming the Party of States’ Rights, Brown Political Review (Nov. 26, 2018), available at http://www.brownpoliticalreview.org/2018/11/democrats-becoming-party-states-rights/
[6] Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action, Cambridge University Press (1990).

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