06 June 2024

Militant Public Administration

An unprecedented scandal surrounding a Polish governmental fund established to aid crime victims highlights the role of civil servants in authoritarian state capture. In the country where judges valiantly espoused the militant-rule-of-law stance towards democratic backsliding of 2015-2023, career public administrators were noticeably more passive in the face of collapsing constitutional order. The revelations surrounding the Justice Fund show broad levels of bureaucratic acquiescence with shocking abuses of power, and only belated effort to document and report these abuses. The Polish case shows it is time to open a discussion about the need for a democratically militant public administration – the new vision of civil service better prepared to fend off authoritarian encroachment from elected politicians.

Militant Democracy and Its Foot Soldiers

The renewed interest in the old discussion about militant democracy seems natural and fully warranted given the emerging reality of a long struggle between liberal democracies and authoritarian, populist forces. On this blog, among other places, Andras Sajo has proposed to apply this idea as an interpretive theory he named “militant rule of law.” Sajo’s writing is animated by a poignant experience of the Hungarian judiciary that has been largely passive in response to Victor Orban’s authoritarian revolution. If we compare that experience with what happened in Poland during the rule of the Law and Justice (PiS) party, we can easily see both the promise and the limitations of Sajo’s approach. For the fight put up by the Polish judiciary, supported by aggressive jurisprudence of the Luxembourg and Strasbourg courts, will surely go down in history as an impressive organized effort in the militant rule of law spirit.

And yet, as important as this determined effort was, it still did not prevent the most shocking takeover of state institutions. Many of the changes PiS made will now be reversed, partly owing to the heroic stance of conscientious judges. But some elements of the PiS revolution may follow the path of the Ackermanian informal constitutional change and end up permanently consolidated into the country’s constitutional structure. For instance, a recent attempt by Adam Bodnar, the liberal Justice Minister, to find a compromise with the country’s President, PiS’s ally Andrzej Duda, opens the possibility of normalizing the status of more than 2,000 judges nominated by the unconstitutional, PiS-controlled National Council of Judiciary.

The Polish case thereby suggests that, beyond judicial courage, democracies need to look for more arrows in their quivers to defend against persistent authoritarian threats. One strangely overlooked weapon is the ethos of public administration. Even the boldest pro-democracy judges would greatly benefit from the support of the rest of the state apparatus. Quite simply, the militant rule of law must be coupled with the more democratically militant public administration.

A Belated Whistleblower

In Warsaw, the case in point becomes starkly evident at the time of this writing. Tomasz Mraz, the former director of the Justice Fund – a large governmental program created to assist victims of crimes – decided to talk. For months, the country has been rocked by revelations that the Fund was PiS’s favorite device to finance its worst excesses: from purchasing the Israeli’s Pegasus software, later used against opposition leaders in the 2019 PiS-won election campaign, to shamelessly supporting pro-regime cronies who, needless to say, did absolutely nothing for crime victims.

Now we know that many details of the Fund operations have come from Mraz, who, at least since 2021, secretly recorded his political masters and, after PiS’s defeat last fall, chose to cooperate with the prosecution service recaptured by Mr. Bodnar. Mraz’s recordings and detailed descriptions of blatant corruption in awarding grants from the Fund will surely aid the prosecution of key figures of the PiS regime. But it is Mraz’s brief account, mediated by his attorneys, of his own experience of being at the center of the authoritarian revolution that should attract our reflection.

In an emotional moment, Mraz admitted that following outrageous, and surely illegal, orders to sign contracts or wire money to various pro-regime entities “was associated – although it is entirely unimportant from the standpoint of the said irregularities – with enormous stress, under which we operated, unable to get out.”

The Bureaucratic Paradigm

Two aspects of this statement merit attention. First, the assertion that Mraz’s personal attitude is irrelevant to the formal assessment of the Fund’s irregularities. Second, his intense feeling, repeated twice, of being “unable to get out.”

I will not venture here into pop psychology. But both beliefs expressed by Mraz represent a certain bureaucratic paradigm widely accepted in many democracies. Rooted in a noble idea of a non-political civil service, this paradigm acculturates career public servants into conceptualizing their role as purely technical; quite literally, as human tools of elected political leaders. Their actions, or attitudes, are “unimportant” because they have no other choice but to obey the political orders.

The problems with this bureaucratic paradigm have long been discussed within the literature on the New Public Management (NPM). The NPM asserts that the static, formalist reading of the role of a career public official, and – especially – downplaying the agency that such officials possess even after accounting for the net of organizational hierarchies, political mandates, and legal procedures, negatively affect governmental performance and flexibility.

It is high time to add another side to this argument: As democracies face persistent, external and internal, threats of ruthless authoritarians, the bureaucratic fantasy of civil servants with no choice but to serve their political bosses deprives us of a critical line of defense. It is plainly not true that Mraz had no choice but to follow the dystopian orders. In his testimony, he recalls how he was “forced” to give high evaluation scores to grant applications by entities preferred by his bosses. Well, he could have simply resisted and submitted an honest evaluation. Or, like Lt Colonel Alexander Vindman, he could have promptly publicized the wrongdoing in the Fund.

Cultural Traits

Indeed, if hundreds of Polish judges were able to organize an impressive collective effort to oppose PiS’s coup, why couldn’t the civil servants? Why didn’t we see a general strike of government workers collectively refusing to advance PiS’s authoritarian agenda? Less heroically, why didn’t more public officials follow Mraz’s path of documenting blatant illegalities and reporting them when democratic governance returned? How many used their limited discretion to right the wrong decisions, even at the margins?

The evident difference between judicial and administrative attitudes in authoritarian Poland cannot be explained fully by reference to material incentives. For in fact, in challenging the PiS regime, judges had clearly more to lose than regular administrators. Polish judiciary is, in general, much better compensated than the rest of the state apparatus. Judges also enjoy life tenure and an extremely generous pension – both of which were at risk after PiS’s political takeover of the judiciary’s disciplinary process. For regular administrators, the governmental job is rarely an economic boon, especially since, throughout PiS’s rule, Poland enjoyed a robust economy with very low unemployment. With his experience, Mraz would not have had trouble finding a job in the private sector.

If the Rational Choice incentive story does not seem to work, turning to cultural factors seems natural. I argue that the lack of a more democratically militant bureaucratic ethos is at least partly to blame. But to change it towards greater democratic assertiveness – to make sure that “non-political” is never understood as “agnostic as to democratic values” – is also a pertinent strategic imperative of our times.

Democratic Strategy

Consider once again Sajo’s “militant rule of law.” It is clear that, in part, the approach is a response to the actions of the other side, namely to what Kim Scheppele perceptively called “autocratic legalism.” Also with the Hungarian case in mind, Scheppele shows the danger of authoritarians using formal legality to cement power. Sajo’s attempt to militarize legal positivism for liberal democratic ends can thus be viewed as a smart response to the authoritarian playbook.

From this vantage, it is noteworthy that, in the United States, a sweeping authoritarian takeover of career federal bureaucracy is among the top priorities of the potential second term of Donald Trump. His determination to stuff the governmental apparatus with diehard loyalists and set aside all legal or customary limitations of the President’s executive power is partly the result of Trump’s obsession with the alleged liberal bureaucratic “deep state.” But, as ever with right-wing narratives, this is a projection; it is the neo-fascist “deep state” we should worry about. In Poland, one of the most shocking reveals of Mraz was that, for months after democrats took over, a mole among the civil servants in Adam Bodnar’s Justice Ministry kept top members of the previous regimes regularly informed about ongoing investigations into their crimes.

Democrats must take note and, when it comes to cultural expectations set for our public administrators, up our game too. Practical change must happen before it is too late, i.e. when democratic forces still hold power. Curricula for administrative training as well as professional and ethical codes must be reviewed and updated. The language used by political and civil service leaders must legitimize a more militant approach to public administration. The wise NPM advice to promote the culture of empowerment within administrative institutions, and to be more tolerant of innovative or dissenting ideas, needs to be heeded with renewed urgency, even if other aspects of the neo-liberal NPM reform program have long fallen into disfavor. And finally, in the countries that have already gone through an authoritarian episode, a hard look needs to be taken at the public officials serving the authoritarian state. The goal is not only to look for culprits, but also to uncover untold, and potentially inspirational, stories of quiet resistance that did take place – preferably, unlike in the case of Mr. Mraz – before the authoritarian ship began to sink.

SUGGESTED CITATION  Kisilowski, Maciej: Militant Public Administration, VerfBlog, 2024/6/06, https://verfassungsblog.de/militant-public-administration/, DOI: 10.59704/8ba82d40cc0cc83e.

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