State resources can be used on many levels and are not limited to transfers of money. This is the use of the whole ecosystem created while being in power. What does this phenomenon look like in the current election campaign? Krzysztof Izdebski, a legal expert at the Stefan Batory Foundation, expert in the Open Spending EU Coalition, member of the Osiatyński Archive Programme Council shows this in a special analysis. Will these be unequal elections?

 

How public has become mixed up with party

Elections cannot be won without money. The more money there is, the greater the hopes of gaining or holding on to power. The United Right  government is consistently counting on the latter. It is not sparing any public money (from the state budget) on the election campaign.

 

Are elections in Poland therefore still equal, competitive and fair? The punchline can already be revealed and it can be stated that they are not. But it is worth looking at this phenomenon, both in the context of the practice and the provisions of the law.

 

There has always been a problem of the ruling party running in the next elections making use of state resources. This is not unique to Poland.

 

There has been a definite intensification of this in recent years in Poland. There can even be talk of harnessing the whole of the state apparatus to support a particular political power.

Various faces of inequality

What are these ‘state resources’, under what circumstances are they used and what impact can they have on the election results?

 

Contrary to appearances, this is not a simple question. This definition cannot be limited to a strict understanding of the concept of public finance, namely monetary resources, especially in a state where the rule of law is not respected. This can be one form of support for parties fighting for re-election, but this is only a part of a broader phenomenon.

 

Other than public money, which the government can give, for example, to friendly media or institutions, which will then form part of the support base for the elections, the following are also used:

• real property (e.g. ministry offices);

• vehicles;

• websites of public entities;

• State Treasury companies.

 

Finally, government-dependent institutions are used to support the party in the race for re-election, such as:

• the secret services;

• the public prosecution service;

• the Constitutional Tribunal.

 

This last element is particularly shocking, because the ability to use the prosecution service or the Constitutional Tribunal was preceded by their ‘takeover’ by the ruling party, which has numerous consequences not only in the electoral context.

 

Rule of law crisis in the interests of the ruling party

Nor is the impact of using public resources for re-election limited to the election campaign period.

 

This is a long-term process, the basis of which has essentially been in preparation since the day after the previous elections.

 

The ongoing rule of law crisis in Poland since 2015 needs to be seen as part of a political and electoral puzzle.

 

This is because the objective of making the controlling institutions dependent on the authorities is not just to guarantee impunity for the politicians, but also to be able to steer the activities of these entities so that they bring specific political benefits.

 

The infamous verdict of the Constitutional Tribunal on abortion in October 2020 was intended to encourage the most conservative voters to support the authorities who had been weakened by the mistakes they made during the pandemic.

 

A number of rulings of the Constitutional Tribunal that dealt with the relationship between national and European law were intended to suit the anti-European narrative that was being built by the authorities. This is a very important element of the current election campaign.

 

The activities of Zbigniew Ziobro, Minister of Justice and Prosecutor General in one, are focused on further attacks on the courts and the opposition. He is also eagerly using his direct influence on the prosecution service.

 

He discontinues some investigations – such as those regarding irregularities in the election campaign in 2020 (the so-called envelope elections) – removing those prosecutors who acknowledged that suspicions of crimes committed by senior public officials could be justified. However, he is demonstrating far more zeal in other cases, where, for instance, opposition politicians are involved.

 

The ability to control institutions that have an influence on the protection of citizens’ rights is also a huge advantage in the electoral process. The use of the Pegasus spyware by the secret services to monitor the chief of staff of the Civic Coalition (KO) in 2019 was particularly shocking.

 

Under-regulated regulations

 

The Electoral Code contains restrictions on the use of state resources during an election campaign. I believe this is far from sufficient.

 

Firstly, in terms of the timing of their applicability.

 

The provisions regarding the restrictions on financing the election campaign only address the period of the formal election campaign. And this starts approximately 90 days before the day of the elections, after they are ordered by the President of the Republic of Poland, and ends 24 hours before day of the elections. Anything that happens before the day of the announcement of the elections, although undoubtedly related to this process, is not subject to these restrictions. But even in the case of activities during the formal campaign period, these restrictions do not hurt the ruling party.

 

The Electoral Code prohibits electoral canvassing, among other things, at

• government administration offices;

• local authority administrations;

• and in courts.

 

A minister, who is also a parliamentary candidate for the office of MP or senator, does not have to worry about trying to distinguish the functions at which he speaks. He can always say he is speaking within the framework of his duties in the ministry.

 

Various studies of the phenomenon of inequality in election campaigns frequently cite precisely the example of the use of state-owned property during an election campaign; it is very difficult to combat this in practice.

 

And again, the need arises to return to the rule of law crisis. Would Prosecutor General Zbigniew Ziobro be interested in pursuing a case against parliamentary candidate Zbigniew Ziobro who, as Minister of Justice, is campaigning for election as MP for the next term at his ministry?

 

Election canvassing can only be financed with the funds of the election committees. If the parties are already in parliament, the election committee funds come mainly from money received from party subsidies. The funds of smaller parties, non-party committees or those just debuting come from donations from private individuals who are Polish citizens, or bank loans.

 

The State Election Commission also sets a ceiling on spending in a given campaign. This can currently be approximately PLN 40 million.

 

Is this any kind of obstacle for the party in power? No. After all, funds earmarked for other purposes can be used.

 

The Polish government decided in July this year to repeal tolls on state-owned motorways. While doing this, it decided to spend at least PLN 630,000 on billboards to inform motorists on these motorways that they no longer have to pay tolls, thanks to the government.

 

The government has also increased spending on its flagship project of support to families with children, by increasing the monthly amount from PLN 500 to PLN 800. This, in itself, is an example of the use of the state budget to increase the chances of re-election.

 

But to be sure, government representatives organized a series of outdoor events in the summer of 2023 (before and during the official campaign) – also with budget funds – to promote this additional spending, even though the benefit itself will only be available from January 2024.

 

During these events, people were being persuaded to vote for the United Right camp. ‘Gazeta Wyborcza’ estimated that ‘the ministry of the family spent a total of PLN 2,139,184 on 21 family picnics promoting 800 plus, which were organized between 15 July and 6 August (not including the cost of the gadgets that were handed out).’

 

Use of the referendum campaign

It is also worth noting that, with the organization of the referendum on the day of the elections, the government gained the possibilities referred to in Article 58 of the Act on the national referendum of 14 March 2003.

 

The Council of Ministers, which came up with the initiative to organize the referendum, can use budget funds to run a campaign ‘explaining the questions’ and the consequences of the voting options.

 

Given that there are no limits on this form of activity and on referendum campaigning in general, this gives the government and the ruling party unlimited opportunities to spend additional funds. Funds that other participants of this process do not have.

 

The United Right government is eagerly taking advantage of this opportunity. A publication on the referendum on the website of the Prime Minister’s Chancellery emphasizes the government’s positive role, among other things, in reducing the retirement age and security measures.

 

Public or government media

The public media are also playing an important role. The dependence of the public media on one party has a disastrous impact on democracy, pluralism and equal opportunities in many respects. However, this is a policy that has been consistently pursued in Poland since 2015.

 

The significance of the National Broadcasting Council has been reduced, with the establishment of a new institution, the National Media Council, which is responsible for electing members of the management and supervisory boards of the public media. On 13 December 2016, the Constitutional Tribunal (then still with a majority elected in previous terms) ruled that depriving the National Broadcasting Council of the right to elect the authorities of the public media was unconstitutional. The ruling was never implemented.

 

The public media became the government’s propaganda tube.

 

In the context of inequality, it is worth presenting data showing a disproportionately greater presence of representatives of the ruling party in the public television schedule. In the second quarter of 2023, a total of 80.37% of the time devoted to politicians of all parties was allocated in the Telewizja Polska [Polish Television] programmes to the presentation of the positions of the ruling coalition and the groupings supporting it, as well as the positions of the chancelleries of the President, the prime minister and the marshal of the Sejm.

 

Meanwhile, Article 21 of the Broadcasting Act of 29 December 2016 states that public media should remain pluralist and impartial. The problem is not solved by the obligation expressed in Chapter 13 of the Electoral Code to present the electoral broadcasts of all registered committees.

 

State budget in support of the ruling party

 

In order to present a full picture, it is worth citing a few more examples of how the ruling party is using state resources to try to influence the result of the elections.

 

This is often done by having public funds to subsidize activities with the state budget.

 

An example can be the Government Local Investment Fund (RFIL), which was set up in 2020. It was supposed to support local governments in investments related to combating the effects of the Covid-19 pandemic. According to Bartosz Czepil, a political scientist and sociologist from the University of Opole, ‘a study of the distribution of the second tranche of funds to municipalities has shown that municipalities governed by PiS are highly privileged in access to the RFIL.’

 

In presenting this, the political scientist refers to Jan Swianiewicz’s and Jarosław Flis’s research. The conclusions of their detailed study of the distribution of these funds were that more than 80% of the ‘opposition’ municipalities did not receive any financial assistance, compared to 14% of the PiS-ruled municipalities, which were excluded. The conclusion? ‘These rules have therefore not proved to be an “accident at work” or a manifestation of overzealousness on the part of the voivodship administration recommending financing applications. They are the government’s conscious and deliberate policy.’

 

The prime minister, who can freely use funds from the budget reserve without the need to organize tenders, has recently assigned millions of zlotys to support institutions related to people supporting the government.

 

Among them is the ‘Potrafisz Polsko’ [English: You can do it, Poland] foundation, in which Paweł Kukiz, MP, leader of a group that supports the United Right camp in the Sejm, is a member of the council. The foundation received PLN 4.3 million in April 2023 for activities promoting ‘direct democracy’ and is actively supporting the referendum which is organized for the day of the elections.

 

Even before the announcement of the election campaign, residents of eastern Poland could see billboards with a picture of Monika Pawłowska, an MP associated with PiS. She was promoting the activities of the Bezpieczna Lubelszczyzna [English: Safe Lublin] Association, which also received funds from the budget reserve, this time PLN 3.3 million. Meanwhile, funds from this pot should only be allocated for emergencies and unforeseen circumstances.

 

PiS Chairman Jarosław Kaczyński spoke just before the announcement of the election date during a ‘military picnic’ organized by the Ministry of National Defence (on the photograph at the top of this article). The speech was clearly of the nature of an election campaign.

 

The government has also set up a website containing the following information: ‘in view of the increasing disinformation and fake news that appears in the Polish public space, we are presenting the facts. The government of 2015–2023 represents a strong economy, a stable budget and a safe Poland.’

 

Without the rule of law – unequal elections

 

State resources can be used on many levels and are not limited to transfers of money. This is the use of the whole ecosystem created while in power.

 

It can also be limited to reprehensible, albeit minor, activities, such as election canvassing from a ministry.

 

However, it can also involve the activities of many important public institutions, the independence of which is limited by the ruling party, which then harnesses them to take part in the (formal and informal) election campaign in support of the ruling camp seeking re-election.

 

This is supported by a sense of a lack of responsibility, a lack of accountability for reprehensible actions, as well as a lack of political culture, and a public accustomed to the idea that ‘this is what everyone does’ and ‘this is how it has always been done’.

 

The complexity and enormity of this phenomenon also means that journalists and NGOs are only able to capture fragments of it as it happens.

 

This means that many voters become convinced that the media and organizations are ‘nit-picking’ at the details, whereas the voters are simultaneously missing the bigger picture of the ruling party ‘taking over’ the state to remain in power for as long as possible. Even though such action should be considered corruption.

 

Even if many people change their minds about this, it will make no practical difference as long as the prosecution service remains as dependent on the government as it is now.

 

The example of Poland shows that the erosion of the rule of law and the system of control of the authorities translates into an intensification of electoral inequalities.

 

The article was prepared for the Osiatyński’s Archive and published in Polish in OKO.press.

 

The activities of the organization are supported with the assistance of the Active Citizens Fund – National Program, which is financed by Iceland, Liechtenstein, and Norway through the Norwegian and EEA Funds.