by Dominika Wielowieyska

‘They want to falsify the elections,’ said the Law and Justice [PiS] party’s chairman Jarosław Kaczyński about the opposition in Wrocław. Elections are organised by local government, and who has the most local governments? It’s the other parties, unfortunately. We have to create an election protection corps. There are more than 20,000 electoral committees, and there should be two of our people in each. We shall change the method of counting by statute so that it is much more transparent than today. We shall introduce sanctions so that various things that are not nice cannot be done. Because we are looking at the results of some elections, especially local elections, with a certain amount of scepticism. We are not persuading anyone to help us while counting. We only want this to be counted honestly,’ said the PiS leader.

It is unclear what the changes in the electoral law will involve, but it is already known today that the legal structure of the elections and the PiS government’s practice give rise to a huge amount of doubt as to the equality of chances of the parties competing for seats in parliament.

Within the Stefan Batory Foundation’s IdeaForum, Dr Marcin Walecki, former Director of the OSCE/ODIHR Democratisation Department, gathered and showed the scale of the pathologies that have accumulated in Polish state institutions in recent years in a single expert opinion. Pathologies that create the risk that general elections to the Sejm and Senate will not be fair. This is about the Electoral Law, institutions established to organise elections and the financing of parties and election campaigns.

Walecki believes that the basic measures of quality of democracy, namely political pluralism, openness, fairness and equal electoral opportunities are not given once and for all and can be compromised.

From the point of view of the quality of democracy, the conditions of rivalry are important. The expert also analysed such issues as:

• the activities of the National Election Commission, the Supreme Audit Office, the public prosecutor’s office and control by the courts;

• financing of elections by third parties;

• abuse of public funds;

• advertising spending of State Treasury companies and the use of public media.

Public prosecutor’s office dependent on the authorities

The key issue is also the independence of the public prosecutor’s office and the courts. Under the PiS government, the line between the supposedly neutral State and its institutions and the ruling party has become blurred. PiS has politicised everything it could.

The public prosecutor’s office is dependent on the ruling party and there are numerous examples of this. As for the financing of parties, Zbigniew Ziobro’s Solidarna Polska [Solidary Poland] is a flagrant example of pathology. This party took money from the European fraction of MELD (Movement for a Europe of Liberties and Democracy) to organise a conference devoted to the climate. Instead, it organised a party conference where little was spoken about the climate.

OLAF, the European anti-corruption office, took an interest in this matter. However, the Polish public prosecutor’s office, which Ziobro supervises, discontinued the investigation into this matter. Simultaneously, the PiS government did not join the group of countries that form the European Public Prosecutor’s Office (EPPO). And this is the European Union’s institution that is responsible for looking after the EU’s financial interests. This means that it will be very difficult to punish those guilty of embezzling money from the Union for party activities. 

Politicised National Election Commission

Election campaigns cost and money does not guarantee winning, although it can help significantly. Parties in Poland are primarily financed from the budget, while the law prohibits other possibilities of obtaining funds. Payments from private donors are admissible to a certain limit. It is prohibited for State and private business and foreign entities to finance parties and campaigns.

Party and campaign funds are monitored by the National Election Commission and it is important that this monitoring is conducted by institutions that are fully independent of the current ruling politicians. Because if the National Election Commission finds errors in the financial statements or breaches of the law, it could take away the party’s subsidy or demand a refund of funds.

Meanwhile, the changes in the regulations introduced by PiS in 2018 give rise to huge doubts as to whether the National Election Commission is protected against political pressure. Previously, the National Election Commission consisted of judges from the highest bodies of judicial authority. The removal of judges and the politicisation of the election of new members of the National Election Commission, electoral commissioners and the head of the National Elections Office has meant that the independence of the National Election Commission and the Internal Security Corps has become questionable. This is dangerous because the National Election Commission can become a tool for crushing the opposition.

The independence of the members of the National Election Commission has additionally been reduced, because the term of office does not protect them. The new regulations assume that the President can dismiss a member of the National Election Commission if the motion of the politicians who submit it is justified. But what does that mean? The Act does not specify any circumstances justifying dismissal and does not provide for any appeal procedure. The majority of the members of the National Election Commission are nominated by political parties and therefore the decisions of this body may be politicised, while the representatives of the political parties represented in the National Election Commission will be judges in their own case.

Walecki recalls that, after the 2015 elections, the Razem [Together] party avoided the confiscation of PLN 9.4 million and SLD [Democratic Left Alliance] avoided PLN 8.8 million being taken away because they appealed against the National Election Commission’s decisions to the Supreme Court, which referred the matters to the Constitutional Tribunal. In 2020, the National Election Commission passed a resolution rejecting the Konfederacja [Confederation] party’s financial statements for 2019, as a result of which the party could have lost a total of PLN 20.67 million over three years. In November 2020, the Supreme Court also suspended proceedings in the Chamber of Extraordinary Control and Public Affairs in the case of the Green Party, whose financial report the National Election Commission rejected.

Just as in the case of the previous parties, the Supreme Court decided to suspend the proceedings in the case pending the decision of the Constitutional Tribunal. The result of this ruling of the Supreme Court was that the Green Party did not lose its right to approximately PLN 900,000 of the budget subsidy. For now. If the Constitutional Tribunal finds the currently applicable legislation to be constitutional and the Supreme Court upholds the previous decision of the National Election Commission – the opposition parties may be required to return more than PLN 40 million with interest. As the Supreme Court noted, the mere ‘deprival of a political party’s subsidy for three years de facto results in its marginalisation and therefore leads to its actual liquidation.’

The requirement to return budget funds for prior years would be the biggest earthquake in political finance and could bring about the elimination of some of the opposition.

Meanwhile, Julia Przyłębska’s Tribunal is still not making a decision on this, and this sword of Damocles is hanging over the parties all the time. It could fall at any time, for instance, just before the election campaign. And it is known that today the Tribunal largely follows the orders of the PiS leader, Jarosław Kaczyński, whom Julia Przyłębska consults on many issues.

Fictitious campaign spending limits

Walecki points out that, according to Polish law, only electoral committees can finance a campaign, but the Electoral Code has a loophole enabling any voter to canvass without the prior consent of a proxy. Therefore, in practice, anyone can campaign for a politician and, according to the expert, this in turn means that Polish politics can be financed from various sources, including from abroad, even by authoritarian regimes. This gateway is used by both the ruling party and the opposition. This means that the campaign spending limits specified by law are fictitious.

According to Walecki, the democratic standards contained in the Venice Commission’s documents, which emphasises the importance of the neutrality of the State in an election campaign, are persistently being breached in Poland. During the last parliamentary elections, members of the management boards of state-owned enterprises (including PKN Orlen and PKO BP) made substantial donations to Prime Minister Mateusz Morawiecki’s campaign. Contributions were also made by managers of the state-owned enterprises: Enea, PZU, KGHM and Poczta Polska and many other companies.

Therefore, these were not isolated cases (these happened under previous governments), but systemic financing of the ruling party. Walecki sees this as pathology, because we are dealing with the use of public money to provide extra-budgetary financing of politics. The opposition does not have such opportunities.

Dubious justice fund 

An audit of the Justice Fund conducted by the Supreme Audit Office (NIK) in 2020–21 confirmed that the law and authority are being abused. This fund, which is at the disposal of the Ministry of Justice, was supposed to support victims of crime. But in reality it has become a piggy bank for financing Solidarna Polska’s party projects. As an example, the expert cites the actions of Deputy Minister of Justice Marcin Warchoł, a candidate in the early elections to the office of mayor of Rzeszów, who donated half a million zlotys to one of Rzeszów’s hospitals. The donated funds were activated from the Justice Fund.

‘Worse still, in view of the politicisation of the public prosecutor’s office, a problem appears of a squared circle in terms of criminal liability for the abuse of the Justice Fund,’ states Walecki. The Fund’s activities are a blatant example of stretching and circumventing the electoral law, which prohibits such bribery and the use of public funds for one’s own electoral needs.

The party’s State media

The expert also points out that, during the last general election in 2019, the main complaints in the election protests were about the use of public media to promote the ruling party. As many as 135 protests were received. And it is worth recalling that the campaign spending of the committees in the media is the largest item in their budgets. During election campaigns, TVP’s main information programme, ‘Wiadomości’ [News] – plays the role of broadcaster of advertising spots of the authorities, which other participants of the elections have no chance of doing, as their access to the media is strictly rationed. Undoubtedly, this is a violation of the principle of equal access of parties to the State media.

It is the persistent practice of government television that it broadcasts the speeches of PiS politicians, but ignores those of the opposition politicians. This was also the case this Saturday: Donald Tusk’s meeting was not broadcast, while Jarosław Kaczyński’s meeting was. The two other commercial stations largely broadcast live events of both the opposition and the ruling party in their news channels. However, it is worth noting that the Polsat News and TVN 24 news channels are not available to everyone. Some viewers only have access to TVP Info.

‘Control and financing of specific media enable the ruling party to promote individual politicians, circumvent electoral spending limits, reallocate funds to other forms of campaigning, but also indirectly block access to communication channels for the opposition parties. Transfers of public funds become an instrument of political manipulation; they are used to position users of specific content and create toxic polarisation, but primarily to mobilise voters,’ writes Walecki.

In practice, a significant proportion of advertising spending of State-owned enterprises (SOEs), ministries and central government offices goes to financially support party/government propaganda. These entities favour media that directly take part in the pursuit of the propaganda objectives of the authorities in a coordinated manner. Such media include TVP, Polskie Radio [Polish Radio], the weekly magazines ‘Sieci’, ‘Gazeta Polska’ and ‘Do Rzeczy’ and the dailies owned by PKN Orlen and ‘Gazeta Polska Codziennie’.

This is a form of camouflaged financing of party propaganda with public funds, but also of economic censorship of the media which are not clearly pro-government. The censorship involves companies blocking high-budget advertising campaigns for those media that criticise the authorities. This leads to automatic censorship in some editorial offices.

SOEs spent more than PLN 5.8 billion on advertising in 2016–20 alone. The advertising spending of SOEs increased faster than the growth of the media advertising market. This supports the argument that the level of public sector advertising spending depended on the political calendar – local elections were held in 2018, elections to the European Parliament and general elections were held in 2019, and the presidential elections were held a year later.

Also, the scale of public media financing is very significant and, in the case of TVP, exceeded PLN 7 billion (licence fee plus so-called compensation) under the United Right government. If advertising funds from State-owned enterprises, as well as ministries and central government offices are also taken into account, the total that TVP had at its disposal during this period from public funds alone was more than PLN 10 billion.

The acquisition of a powerful media group (Polska Press) completes the picture: PKN Orlen bought 20 regional dailies, almost 120 local weeklies and 500 websites and therefore reached over 17 million users. A database of millions of users, which can be used for so-called behavioural targeting, namely targeting based on the user’s search history and interaction, as well as positioning specific content and thus influencing their political choices, should be added to this.

Walecki also believes thought needs to be given to controlling online campaigning. The regulations specifying the rules of running and financing an election campaign contained in the Electoral Code date back a dozen or so years and do not keep up with the new methods of canvassing in the internet.

The author of the expert opinion postulates that:

• a multi-level (national and local) network of observers should be organised to monitor the financing of parliamentary, local and European elections in 2023 and 2024;

• new models for reporting (including to the public prosecutor’s office) cases of high-level corruption should be developed, in particular for reporting the abuse of public funds (including EU funds) by State-owned enterprises, the media and special purpose funds;

• an appeal should be submitted to the OSCE Office for Democratic Institutions and Human Rights (ODIHR) to conduct a Full Observation Mission for the approaching parliamentary elections in 2023;

• comprehensive legislative solutions should be developed, together with parliamentarians, the Ombudsman and the Supreme Audit Office, to eliminate these pathologies.

Published in Polish in Gazeta Wyborcza.