Resisting Orbánization
Trump wants an illiberal U.S., but we aren’t Hungary under Orbán. Far from it.
When ABC settled with Donald Trump to the tune of $15 million, capitulating in a defamation case in which Trump would need to argue he is not actually an adjudicated rapist but rather just a sexual assaulter, observers of our descent into authoritarianism groaned.
Bill Kristol of The Bulwark wrote, “ABC’s settlement with Trump feels like it could be an inflection point in the Orbanization of our politics. I hope it isn’t.”
He’s referring here to Prime Minister Victor Orbán, a two-bit dictator and Putin apologist who rules the country of Hungary in Eastern Europe. Orbán would be less consequential in a normal world, but the MAGA right has elevated him to hero status because of his defiant calls to establish an illiberal government.
In illiberal states, you have only the trappings of democracy. Elections are held, but they are fundamentally unfair because the media and big business are all behind the guy at the top. Balloting is designed to give an air of legitimacy to the regime, but there is no substantial path to power, even for a robust opposition.
You can spot an illiberal state—one suffering from Orbánization—by some key indicia, which political analyst and commentator Fareed Zakaria discussed some 25 years ago when he warned of the rise of “illiberalism” in certain parts of the democratic West:
Consolidation of executive power via a charismatic leader;
Populism targeting minorities and the monitoring of civil society;
Curbs on academia and curricula and restrictions on freedom of speech and assembly;
Targeted repression of opponents; and
Abuse of state financial power and state resources.
Donald Trump is not yet in power for his second term, and already we are seeing all five of these indicia flash warning signs.
Today I’m going to focus on a few examples of Trump-syle Orbánization. But in so doing, I choose not to wring my hands over the inevitable decline of the U.S. into something that resembles Hungary or, even worse, Russia. Instead, I want to highlight how existing democratic guardrails, if supported by the U.S. court system, independent media, and civil society at large, can prevent such a slide. While the threat of illiberal rule has grown acutely real, so too has our ability and determination to defeat it.
Republicans target Trump’s political opponents in a report
Trump has long promised to seek vengeance upon his political enemies, and chief among them is former Republican House member Liz Cheney. In 2021, she bucked her party and voted to impeach Donald Trump for his actions on and around January 6, when he sought to overturn the 2020 election first by conspiracy and then by encouraging a mob to attack the Capitol during the electoral count.
Later, Cheney accepted an appointment to the January 6 Committee, where she helped lead public hearings to expose the extent of Trump’s dereliction of duty and criminality.
For these perceived transgressions, Cheney was booted from the GOP and defeated in a primary in her home state of Wyoming. And she has been the frequent target of Trump’s musings, including that she ought to face televised military tribunals and violent consequences for her policies and actions.
To undermine Cheney and the rest of the January 6 Committee, Republicans formed a special committee to investigate the investigators—a standard move for Republicans seeking to muddy the waters. This week, that committee, led by Rep. Barry Loudermilk (R-GA), who apparently was still smarting from the unproven suggestion by the Committee that he had led insurrectionists on a private tour of the Capitol in advance of the attack, released a preliminary report seeking to reshape the narrative around January 6.
In that report, Loudermilk recommends that the FBI investigate Cheney over her handling of witnesses, in particular the way she convinced star witness and former White House aide Cassidy Hutchinson to reverse her earlier statements about what she’d seen and heard. Loudermilk highlighted Cheney’s interaction with Hutchinson and claimed Cheney illegally coached testimony and turned her against her attorney, Stefan Passantino. Cassidy wound up altering the testimony she had previously given the Committee.
Truth, courage, and the Constitution will safeguard the Committee
The actual series of events, based on the facts Hutchinson provided the Committee, was quite different. Hutchinson testified that it was Passantino who had actively discouraged her from offering fully truthful and complete testimony before the Committee, even while promising her lucrative employment with the man paying the legal bills.
“The less you remember, the better,” Hutchinson said Passantino told her. “We’re gonna get you a really good job in Trump world.”
That Cheney uncovered this blatant effort to obstruct justice should be celebrated, not condemned. And the record is clear that Cheney did nothing wrong in seeking to discover and expose the truth. If anything, it is Passantino who should have been investigated and charged for interfering with a witness’s testimony.
The Loudermilk report is a chilling reminder, however, that Trump and the MAGA right are quite serious when they say they intend to use the Justice Department to punish Trump’s enemies. That threat is now heightened by the prospect of Trump lackey Kash Patel as FBI Director. Patel has been open about his plans to pursue investigations and charges against Trump’s political opponents.
That Loudermilk advanced such a disgraceful report and recommendation against a former GOP colleague is a clear sign of how low the party has descended and how far sycophants within it will go to please Trump. But the January 6 Committee members don’t seem intimidated. In a Tuesday statement, Cheney described the report as “a malicious and cowardly assault on the truth,” adding that “no reputable lawyer, legislator or judge would take this seriously.”
Similarly, former GOP Rep. Adam Kinzinger, who also served on the January 6 Committee, told CNN host Manu Raju this past Sunday that he has “absolutely no worries” about Trump’s threat to jail committee members. As Politico reported, Kinzinger elaborated,
“First off, the executive branch can’t go after the legislative branch because we embarrassed him. That’s not a sin. That’s not against the law….
He added that “most of the people that testified were actually his Republicans, you know, fellow Republicans that went up and spoke [against] him.”
Kinzinger added,
“So look, he’s all butt hurt, right now because he was embarrassed,” Kinzinger added. “He’s not going to come after us and I’m not worried about it at all in the least.”
From a purely legal standpoint, efforts by Trump or the FBI to come after former Congressmembers for doing their jobs will also run smack into Article 1, Section 6 of the U.S. Constitution. That’s known as the Speech or Debate clause, and it prevents other branches of government from punishing legislators for things they say or do in their official capacities as Congressmembers. It historically operates as a defensive shield to protect against incursions against legislative power by the Executive or the Judiciary.
“The idea that legislative activity would be the subject of a criminal investigation is unconstitutional,” said Rep. Zoe Lofgren (D-CA), who also served on the Committee.
If the GOP Congress or Trump’s Justice Department seeks to prosecute the Committee members, expect a quick rebuke of such efforts by the federal courts.
Trump’s threats to cancel broadcast licenses are empty
It’s common to assume that the craven capitulation by ABC in Trump’s defamation case was in reaction to Trump’s threats to cancel its broadcast license. Trump has made similar threats to CBS, claiming without evidence that the network had improperly edited Kamala Harris’s interview on 60 Minutes to make her answer sound more intelligible. (This is ironic, given that Trump canceled on the same interview and consistently sounds unintelligible, requiring major media to “sane wash” his speeches.)
But as ABC’s and CBS’s lawyers no doubt know, Trump’s threats to use the power of the FCC to revoke the networks’ licenses are a paper tiger. First of all, Trump has made this threat on at least 15 occasions, according to a review by CNN. It noted, “His anti-broadcasting broadsides – against CBS, ABC, NBC, and even Fox – are almost always in reaction to interview questions he dislikes or programming he detests.” It’s becoming hard to take seriously the man who cries “Revoke!”
Besides, canceling a network’s broadcast license because the president doesn’t like what it said about him would run smack into First Amendment challenges and almost certainly not survive them.
The FCC agrees. At one point Trump tweeted an attack on NBC News’ reporting, writing, “Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public!” Then-FCC Chair Ajit Pai responded that the agency lacked authority to revoke its license in this manner.
Appearing at an event at George Mason University, but without addressing Trump’s comments directly, Pai confirmed that the “FCC under my leadership will stand for the First Amendment.” He added that the agency “under the law does not have the authority to revoke the license of a broadcast station based on the content of a particular newscast.”
Beyond unconstitutional restrictions on speech, Trump’s threats of cancellation also fundamentally misunderstand how licensing works and which parties are actually licensed. National networks like ABC and CBS do not receive licenses, only local stations do. And importantly, the FCC grants eight-year license terms to such local broadcasters. Trump would have to target all local stations that aired whatever negative coverage he disfavors, a big and messy proposition.
Even if he tried to do something that crazy, he very likely wouldn’t succeed in getting their licenses revoked. That’s because the process “is so time-consuming that no license renewal could be denied before the end of a hypothetical second Trump term,” public interest lawyer Andrew Jay Schwartzman told CNN.
Further, certain networks like CNN and MSNBC, which Trump has argued should also lose their licenses, deliver their news through cable, streaming, and satellite—meaning they aren’t licensed by the FCC in the first place.
Trump, of course, wants to reassert presidential control of the FCC, which currently operates independently and includes both Republican and Democratic members. These are usually folks who work in the broadcast industry, and as Schwarzman noted, “the more cynical among us would observe that going after broadcasters is not a good thing to have on one’s resume for post-FCC employment.”
Given all these factors, we should view Trump’s license revocation threats with skepticism. He doesn’t have the power to order the FCC to do anything, and even if he did, the FCC lacks jurisdiction to revoke national broadcast licenses and doesn’t have enough time to get any revocations actually done under Trump.
Trump’s lawsuits against print media will fail
Another effort to chill speech took the form of a lawsuit filed by Trump against the Des Moines Register and pollster Ann Selzer. The defendants had published a poll that claimed Kamala Harris was leading Trump by three points going into the November election.
That poll shocked pretty much everyone and also turned out to be extremely wrong, as sadly happens with even the best pollsters from time to time. Prior to that poll, Selzer had enjoyed one of the strongest reputations in the polling business.
Trump, however, won’t let the bad poll go. As NBC News reported on Tuesday, Trump has now sued the Register and Selzer under Iowa’s consumer protection laws, claiming they committed fraud upon their readers and on America and committed “brazen election interference.”
The Register responded, “We have acknowledged that the Selzer/Des Moines Register pre-election poll did not reflect the ultimate margin of President Trump’s Election Day victory in Iowa,” noting that it had released the poll’s full demographics, crosstabs, weighted and unweighted data, as well as a technical explanation from pollster Selzer. "We stand by our reporting on the matter and believe this lawsuit is without merit.”
Once again, the First Amendment will serve as a backstop against such abuses and attempts to chill free speech. The idea that pollsters are never permitted to be wrong in their attempts to get public sentiment right would pretty much end all polling—and possibly all other predictive reporting, from the weather to the stock market. Such things are ultimately only as accurate as the final results prove them to be.
We simply don’t punish honest mistakes.
Media guardrails can be strengthened through Anti-SLAPP laws
Trump’s goal here, of course, is to intimidate the press and cause them to think twice about printing anything negative about Trump. That is why it’s quite important to shore up independent media, even while papers owned by larger corporations and billionaires capitulate.
It’s important to begin enacting or enforcing anti-SLAPP laws against the President-elect and any others who want to use the threat of lawsuits to chill free speech. A SLAPP suit is a “strategic lawsuit against public participation,” meaning a complaint designed to silence and intimidate parties from speaking up or organizing. Anti-SLAPP laws are designed to prevent parties from using the courts and threats of a lawsuit to intimidate those exercising their First Amendment rights—exactly the kind of thing Trump is attempting.
Anti-SLAPP laws permit a party to file a motion to strike a SLAPP suit and shift the burden to the party who brought the complaint to show a probability of prevailing. If the plaintiff can’t meet this burden, the suit gets tossed and often the defendant can then collect attorneys’ fees.
Anti-SLAPP laws exist in many jurisdictions, but where they do not, legislators should act to provide protections; and civil rights groups such as the ACLU should be prepared to step into the gap and defend the rights of the press.
A long way to go before Orbánization
These examples help demonstrate that Trump is a long way from the kind of grip that Viktor Orbán has on his country. In Hungary, Orbán maintains a stranglehold on the media, described by the Associated Press as a “sprawling pro-government media empire that’s dominated the country’s political discourse for more than a decade.”
We rightfully should decry the kind of editorial capitulation we have seen lately in the U.S., where, for example, major papers’ billionaire owners at the Washington Post and Los Angeles Times thwarted their own editorial board’s endorsements of Kamala Harris, all in an attempt to suck up to Trump. Many such owners have business before the government concerning their other industries and concerns, and they’d apparently prefer not to see them endangered because one of their less profitable revenue centers decided to speak out against Trump.
But such obsequious behavior, however repugnant, is still a far cry from the entire nation being dominated only by right-wing media, with no negative stories about Trump allowed to be published or broadcast anywhere.
The more times Trump tries and fails to punish the media for its negative coverage, the less fearful many will grow of Trump. This includes his toothless threats to jail his political enemies. It includes his nonsensical threats to revoke broadcast licenses. And it includes his current efforts to intimidate reporters and pollsters through civil lawsuits that are destined to be tossed from court.
Acts of resistance, whether from Liz Cheney or the Des Moines Register, need to be uplifted and publicized widely. The public must understand there remain leaders and news outlets that are unafraid of Donald Trump and will stand with their backs straight to face down his threats.
This is not to suggest that the danger Trump poses is not real and imminent. We are admittedly closer than ever before to losing the liberal democracy and the republic we have kept for nearly 250 years. But the Orbánization of the U.S. is not an inevitability. Indeed, it is arguably Trump who faces an uphill fight from here. Trump still lacks many of the tools and much of the power Orbán has in his own country to seize full effective control of all media and stamp out all opposition. Trump likes to talk big, but his actions are often relatively diminished and inconsequential.
Cowardice and supplication in the era of Trump have become disturbingly commonplace, especially among the wealthy elite. But courage is itself a contagious thing, and we can expect to see more of it from all quarters as Trump’s words and threats continue to prove empty.
The biggest worry I have with Orbanization is the status of the Supreme Court. If Trump gets a chance to install even one more justice, we could be in a lot of trouble. Once again, midterms are very important. We need to flip that damn Senate. Once and for all.
I think a bigger worry than Orbanization is the Trump administration's response to the next crisis. We saw how poorly he did with Covid, and that was with some well-qualified people in the buildings. We can't know how many crises were averted by the Biden administration because we simply don't hear about them under most circumstances. A well-run administration like Biden's nips a lot of things in the bud we don't hear about until somebody writes a book.
Under Trump, that won't happen. The people he's trying to nominate to cabinet positions are unqualified. Some of them are so nuts that their religious zaniness may even be leading them into hoping for a Malthusian event because it will usher in the rapture. That's how crazy some of them are.
I wish I could share your optimism. I am actually disappointed in how docile Americans turned out to be. Even Hungarians in Budapest protest Orban regularly.