The Political System of Germany 9783031324802, 3031324803

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NEW PERSPECTIVES IN GERMAN POLITICAL STUDIES

Floriaan Grotz · Wolfgang Schroeder

New Perspectives in German Political Studies

Series Editors William E. Paterson, Aston University, Birmingham, UK Thomas Saalfeld, Universität Bamberg, Bamberg, Bayern, Germany

Far reaching changes are now taking place in Germany. Stability lies at the core of the German model and much of the writing from Peter Katzenstein and Manfred Schmidt onwards sought to explain this enviable stability. Changes in the external environment have created a number of fundamental challenges which pose a threat to that stability. Germany is now Europe’s central power but this has generated controversy about how it is to exercise this new power. Although attention is often centred on German power the migration crisis demonstrates its limits. New Perspectives in German Political Studies aims to engage with these new challenges and to cater for the heightened interest in Germany. The Editors would welcome proposals for single-authored monographs, edited collections and Pivots, from junior as well as well-established scholars working on contemporary German Politics.

Florian Grotz · Wolfgang Schroeder

The Political System of Germany

Florian Grotz Politikwissenschaft Helmut-Schmidt-Universität Hamburg Hamburg, Germany

Wolfgang Schroeder FB Gesellschaftswissenschaften Universität Kassel Kassel, Hessen, Germany Berlin Social Science Center (WZB) Berlin, Germany

ISSN 2947-6747 ISSN 2947-6755 (electronic) New Perspectives in German Political Studies ISBN 978-3-031-32479-6 ISBN 978-3-031-32480-2 (eBook) https://doi.org/10.1007/978-3-031-32480-2 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: Tomohiro Ohsumi/Stringer This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

This book offers a systematic introduction to the German political system. It is not only addressed to students of political science but also to anyone who is looking for a thorough overview of the political institutions and processes in the Federal Republic of Germany. There are quite a few textbooks on German government and politics, both on the domestic and international markets. Within Germany, Thomas Ellwein presented the first comprehensive account 60 years ago (Ellwein 1963; most recent edition: Hesse and Ellwein 2012). Since then, other political scientists have published similar overviews in repeatedly updated versions (e.g. von Beyme 2017; Marschall 2018; Mannewitz and Rudzio 2022; Schmidt 2021; Sontheimer et al. 2007). Standard English-language introductions to the German political system include Green et al. (2012), Langenbacher (2021), Padgett et al. (2014) and Roberts (2020). Our book generally fits into this spectrum by describing the political system of Germany as a complex interplay of institutions and actors, tracing its historical evolution and elaborating on its characteristic strengths and weaknesses. However, there are two features that distinguish this book from most other introductions. First, we explore the structures and processes of the German political system with a consistent analytical framework that focuses on the patterns of democratic will formation and decision-making. Second, we study German politics through the lens of a multi-level system that spans the local, state, federal and European levels. v

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The book’s analytical framework relies on Arend Lijphart’s seminal distinction between majoritarian and consensus democracy (Lijphart 2012). According to this perspective, any democracy seeks to include the diverse interests of society in the best possible way and, at the same time, to make efficient decisions and implement them effectively. However, real-world democracies usually prioritise one or other of these competing objectives. For instance, a democratic order can be designed such that the government’s mandate rests on the will of the majority of citizens, which strengthens its capacity for political action and efficient decision-making (majoritarian democracy). By contrast, a democratic polity may also allow for the greatest possible inclusion of societal interests (consensus democracy). Needless to say, most contemporary democracies do not entirely comply with either of these models but combine specific elements of majoritarian and consensus democracy to achieve a certain balance between integrative capacity and decision-making efficiency. When presenting the political institutions and actors of the German system in the following chapters, we will primarily describe the structural elements of the German political system as they exist between the poles of majoritarian and consensus democracy. We will also explain how they interact with each other and what this means for the system’s integrative capacity and decision-making efficiency. At the end of each chapter, we will also discuss selected reform proposals that have been put forward in the academic or political debate. This should also help readers to form their own judgement on the strengths and weaknesses of German democracy. Democratic policy-making in Germany is not confined to the domestic context but also takes place in a complex interplay between the federal, state and local levels and the European Union. In recent decades, it has become even more important to adopt a multi-level perspective with a view to understanding German politics. Our book accounts for this development in two ways. First, the German states (Länder), which were quite socially and politically homogeneous before reunification in 1990, have become increasingly diverse since then. As a result, politics and governance in the German states have received increased attention in the extant literature (e.g. Hildebrandt and Wolf 2016; Knelangen and Boyken 2019; Schroeder and Neumann 2016). Consequently, our book contains separate chapters on the government systems of the German states and municipalities, whose government systems are also analysed in terms of majoritarian and consensus democracy. Second, European integration has

PREFACE

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led to a supranational system of government that affects domestic politics and policies in various ways (Beichelt 2015; Sturm and Pehle 2012). For this reason, our book not only contains a separate chapter on the European Union (Chapter 3) but also addresses the Europeanisation of German politics in separate sections in all other chapters. These sections consider the question of how the domestic institutions and actors are embedded in the EU multi-level system and what specific patterns of interaction emerge from this. In this way, we hope to provide our readers with a comprehensive and concise understanding of how the political system of Germany works. The original version of this book was published in German two years ago (Grotz and Schroeder 2021). In writing this manuscript, we received a great deal of help, for which we are still extremely grateful. First and foremost, we thank Lukas Kiepe, Jennifer Ten Elsen (both University of Kassel) and Martin Klausch (Helmut Schmidt University Hamburg), who supported our work on the individual chapters from the first draft to the final stage with tireless commitment. We also benefited from the reliability and competence of our student assistants Sven Rader, Adrian Steube (both Kassel), Maren Bestehorn, Leon Lenschen and Hanna Söhnholz (all Hamburg) in the extensive literature and data research and the formal preparation of the manuscript. Michael Bölke (HSU Hamburg) helped us with the graphic design of the figures, and Ekpenyong Ani (WZB Berlin) accurately proofread the entire book. We also received most valuable comments and helpful feedback from Hans-Jürgen Arlt (Berlin), Hans-Peter Bartels (Berlin), Frank Decker (Bonn), Samuel Greef (Kassel), Ulrich Hufeld (Hamburg), Sascha Kneip (Berlin), Thomas Kralinski (Berlin/Dresden), Sabine Kropp (Berlin), Florian Meinel (Göttingen), Janbernd Oebbecke (Münster), Werner Reutter (Berlin), Winfried Suess (Potsdam), Heinrich Tiemann (Allensbach) and Aiko Wagner (Berlin). Special thanks go to Jutta Allmendinger, Wolfgang Merkel and Bernhard Weßels, who contributed greatly to the success of this project at the Berlin Social Science Center (WZB) through many conversations and their hospitality. This English version of the book has been adapted for an international readership and brought up to date. For the sake of conciseness, we took over most references on the German-language literature from the original version. Furthermore, we translated all direct quotes from German into English with the exception of those legal documents for which an official translation is available. In preparing the present version

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of the book, Martin Klausch and Lukas Kiepe have once again provided us with their invaluable support. Likewise, Alexander Kemer, David-George Rusu and David Adrian Wiesenmüller (HSU Hamburg) helped us to adjust and update the voluminous lists of references. Moreover, we are particularly grateful to Anette Pollner for preparing a preliminary version of the English manuscript and to Roisin Cronin for her outstanding copy-editing. We also acknowledge the generous funding of the translation by the WZB Berlin. Last but not least, we would cordially like to thank Andreas Beierwaltes (Springer Social Sciences) for his longstanding support of this book project and Ambra Finotello (Palgrave Macmillan) for her professional guidance and management of the editorial process. Berlin, Germany March 2023

Florian Grotz Wolfgang Schroeder

References Beichelt, T. (2015). Deutschland und Europa: Die Europäisierung des politischen Systems (2nd ed.). Wiesbaden: Springer VS Ellwein, T. (1963). Das Regierungssystem der Bundesrepublik Deutschland. Köln: Westdeutscher Verlag Green, S., Hough, D., & Miskimmon, A. (2012). The Politics of the New Germany (2nd ed.). London: Routledge Grotz, F., & Schroeder, W. (2021). Das politische System der Bundesrepublik Deutschland: Eine Einführung. Wiesbaden: Springer VS Hesse, J. J., & Ellwein, T. (2012). Das Regierungssystem der Bundesrepublik Deutschland (10th ed.). Baden-Baden: Nomos Hildebrandt, A., & Wolf, F. (Eds.). (2016). Die Politik der Bundesländer (2nd ed.). Wiesbaden: Springer VS Knelangen, W., & Boyken, F. (Eds.). (2019). Politik und Regieren in SchleswigHolstein: Grundlagen—politisches System—Politikfelder und Probleme. Wiesbaden: Springer VS Langenbacher, E. (2021). The German Polity (12th ed.). Lanham, MD: Rowman & Littlefield Lijphart, A. (2012). Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries (2nd ed.). New Haven/London: Yale University Press Mannewitz, T., & Rudzio, W. (2022). Das politische System der Bundesrepublik Deutschland (11th ed.). Wiesbaden: Springer VS Marschall, S. (2018). Das politische System Deutschlands (4th ed.). Konstanz: UTB

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Padgett, S., Paterson, W. E., & Zohlnhöfer, R. (Eds.). (2014). Developments in German Politics (4th ed.). New York: Palgrave Macmillan Roberts, G. K. (2020). German Politics Today. Manchester: Manchester University Press Schmidt, M. G. (2021). Das politische System Deutschlands (4th ed.). München: C.H. Beck Schroeder, W., & Neumann, A. (Eds.). (2016). Politik und Regieren in Hessen. Wiesbaden: Springer VS Sontheimer, K., Bleek, W., & Gawrich, A. (2007). Grundzüge des politischen Systems Deutschlands. München: Piper Sturm, R., & Pehle, H. (2012). Das neue deutsche Regierungssystem: Die Europäisierung von Institutionen, Entscheidungsprozessen und Politikfeldern in der Bundesrepublik Deutschland (3rd ed.). Wiesbaden: Springer VS von Beyme, K. (2017). Das politische System der Bundesrepublik Deutschland: Eine Einführung (12th ed.). Wiesbaden: Springer VS

Contents

1

2

3

The Political System of Germany: Analytical and Historical Foundations 1.1 Theoretical Framework: Majoritarian and Consensus Democracy 1.2 The Federal Republic of Germany: A Historical Overview 1.3 The Outline of This Book References

1 2 11 25 28

The Basic Law: Constitutional Foundations 2.1 The Origins of the Basic Law: Between a Provisional Document and a Comprehensive Constitution 2.2 Structure and Development of the Basic Law 2.3 The Constitutional Order in the Multi-Level System 2.4 Conclusion: Flexible or Rigid Constitution? References

33

The European Union: The Supranational Framework 3.1 Integration in Steps: The Historical Development of the European Union 3.2 The EU System of Government 3.3 The Europeanisation of German Politics: Policy Shaping and Implementation

67

34 40 54 59 62

68 78 87

xi

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CONTENTS

3.4

Conclusion: Expansion or Limitation of Democratic Governance? References 4

5

6

7

The Federal Order 4.1 The Vertical Distribution of Powers and Fiscal Federalism 4.2 Federal Governance Between Interlocked Decision-Making and Structural Dynamics 4.3 Horizontal Cooperation Between the States 4.4 Conclusion: Functional or Immobile State Organisation? References

94 95 99 100 115 126 130 133

Elections and the Electoral System 5.1 Electoral Law and the Bundestag Electoral System 5.2 Voting Behaviour in Bundestag Elections 5.3 Parliamentary Elections in the Multi-Level System 5.4 Conclusion: Proportional and Concentrated Structures of Representation? References

141 142 155 165

Political Parties and the Party System 6.1 Political Parties in Germany: The Legal Foundations and Organisational Structures 6.2 The Federal Party System 6.3 The German Parties in the European Multi-Level System 6.4 Conclusion: Inclusive and Effective Intermediation of Interests? References

183

Interest Groups and the System of Associations 7.1 Interest Groups and Associations in Germany 7.2 The System of Associations: Integrative Capacity and Political Influence 7.3 Organised Interests in the European Multi-Level System 7.4 Conclusion: Enhancing Democratic Governance or Endangering the Common Good? References

237 238

173 177

184 202 218 225 227

251 263 269 271

CONTENTS

8

9

10

11

xiii

The Media and the Media System 8.1 Mass Media in Germany: Structure and Regulations 8.2 Media and Politics: Opposing Functional Logics and Structural Interconnections 8.3 The German Media System and European Integration 8.4 Conclusion: Pluralist and Autonomous Media in the Digital Age? References

277 278

The German Bundestag: The Legislature 9.1 The Bundestag Within the Parliamentary System of Government 9.2 Internal Organisation Between a Debating Parliament and a Working Parliament 9.3 The Functional Profile of the Bundestag 9.4 The Bundestag in the European Multi-Level System 9.5 Conclusion: Seat of Democratic Sovereignty or Marginalised Institution? References

305

The Federal Government and the Federal President: The Dual Executive 10.1 The Institutional Powers and Organisational Structure of the Federal Government 10.2 Governance Between Chancellor Democracy and Coalition Management 10.3 The Federal Government in the European Multi-Level System 10.4 The Federal President 10.5 Conclusion: A Balance of Executive Power and Integrative Capacity? References The Bundesrat 11.1 Structural Characteristics and Tasks 11.2 The Bundesrat’s Role in Representing State Interests and Party Politics 11.3 The Bundesrat in the European Multi-Level System 11.4 Conclusion: Effective State Chamber or Instrument of Obstruction? References

289 294 296 298

306 312 329 343 347 349 355 356 368 380 385 397 400 409 410 417 423 427 429

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CONTENTS

12

The Federal Constitutional Court 12.1 Structural Characteristics and Tasks 12.2 The Federal Constitutional Court in Action: Between Politicisation and Judicialisation 12.3 Constitutional Review in the European Multi-Level System 12.4 Conclusion: Impartial Guardian of the Constitution or Political Player? References

433 434

The Government Systems of the German States 13.1 The German States: History and Society 13.2 The Institutional Setting 13.3 Politics and Governance 13.4 The German States in the European Multi-Level System 13.5 Conclusion: Homogenous or Diverse Patterns of Democracy? References

463 464 469 489

Politics and Administration at the Local Level 14.1 Tasks and Financial Resources of German Municipalities 14.2 The Institutional Setting 14.3 Local Governance and Policy-Making 14.4 Local Interests in the Multi-level System 14.5 Conclusion: Nucleus of Democracy or Crisis of Self-Government? References

511

13

14

15

A Resilient Democracy? The German Political System Under Scrutiny 15.1 From a Success Model to a Democracy in Crisis 15.2 Ten Theses on the Performance of the German Political System 15.3 What Is Needed to Strengthen Democratic Resilience? References

443 450 456 458

496 499 503

512 518 523 530 534 536 541 541 543 562 564

Abbreviations

AA AbgG ADAC ADAV AfD AG ALDE ARD

AWO BaFin BAföG BAGSO

BBC BBG BDA BDI

Auswärtiges Amt (Ministry of Foreign Affairs) Abgeordnetengesetz (Members of the Bundestag Act) Allgemeiner Deutscher Automobil-Club (General German Automobile Club) Allgemeiner Deutscher Arbeiterverein (General German Workers’ Association) Alternative für Deutschland (Alternative for Germany) Aktiengesellschaft (public limited company) Alliance of Liberals and Democrats for Europe Arbeitsgemeinschaft der öffentlich-rechtlichen Rundfunkanstalten der Bundesrepublik Deutschland (joint organisation of Germany’s regional public service broadcasters) Arbeiterwohlfahrt (Workers’ Welfare Association) Bundesanstalt für Finanzdienstleistungsaufsicht (Federal Financial Supervisory Authority) Bundesausbildungsförderungsgesetz (Federal Law concerning the Promotion of Education or Training) Bundesarbeitsgemeinschaft der Seniorenorganisationen (German National Association of Senior Citizens’ Organisations) British Broadcasting Corporation Bundesbeamtengesetz (Federal Civil Service Act) Bundesvereinigung der deutschen Arbeitgeberverbände (Confederation of German Employers’ Associations) Bundesverband der deutschen Industrie (Federation of German Industry) xv

xvi

ABBREVIATIONS

BDM BDZV

BEUC BfV BMAS BMBF BMDV BMEL BMF BMFSFJ

BMG BMI BMinG BMJ BMUV

BMVg BMWK BMWSB

BMZ

BND BP BPA

Bundesverband deutscher Milchviehhalter (Federal Association of German Dairy Farmers) Bundesverband Digitalpublisher und Zeitungsverleger (German Newspaper Publishers and Digitalpublishers Association) The European Consumer Organisation Bundesamt für Verfassungsschutz (Federal Office for the Protection of the Constitution) Bundesministerium für Arbeit und Soziales (Federal Ministry for Labour and Social Affairs) Bundesministerium für Bildung und Forschung (Federal Ministry of Education and Research) Bundesministerium für Digitales und Verkehr (Federal Ministry for Digital and Transport) Bundesministerium für Ernährung und Landwirtschaft (Federal Ministry of Food and Agriculture) Bundesministerium der Finanzen (Federal Ministry of Finance) Bundesministerium für Familie, Senioren, Frauen und Jugend (Federal Ministry for Family Affairs, Senior Citizens, Women and Youth) Bundesgesundheitsministerium (Federal Ministry of Health) Bundesministerium des Innern und für Heimat (Federal Ministry of the Interior and Community) Bundesministergesetz (Act governing Federal Ministers) Bundesministerium der Justiz (Federal Ministry of Justice) Bundesministerium für Umwelt, Naturschutz, nukleare Sicherheit und Verbraucherschutz (Federal Ministry for the Environment, Nature Conservation, Nuclear Safety and Consumer Protection) Bundesministerium der Verteidigung (Federal Ministry of Defence) Bundesministerium für Wirtschaft und Klimaschutz (Federal Ministry for Economic Affairs and Climate Action) Bundesministerium für Wohnen, Stadtentwicklung und Bauwesen (Federal Ministry for Housing, Urban Development and Building) Bundesministerium für wirtschaftliche Zuammenarbeit und Entwicklung (Federal Ministry for Economic Cooperation and Development) Bundesnachrichtendienst (Federal Intelligence Service) Bayernpartei (Bavaria Party) Bundespresseamt (Federal Press Office)

ABBREVIATIONS

BPräsWahlG

BR BRH BSE BT-Drs. BVerfG BVerfGE BVerfGG BWahlG CALRE CDU CEC CEE CEMR CFR CFSP ChefBK CJEU CMFO COPA-COGECA CoR COREPER CST CSU DBV DES DGB DKG DKP DLR DLT DOSB

xvii

Gesetz über die Wahl des Bundespräsidenten durch die Bundesversammlung (Law on Election of the Federal President by the Federal Assembly) Bayerischer Rundfunk (Bavarian Broadcasting Corporation) Bundesrechnungshof (Federal Court of Audit) Bovine Spongiform Encephalopathy Bundestagsdrucksache (Bundestag printed paper) Bundesverfassungsgericht (Federal Constitutional Court) Entscheidungen des Bundesverfassungsgerichts (Decisions of the Federal Constitutional Court) Bundesverfassungsgerichtsgesetz (Act on the Federal Constitutional Court) Bundeswahlgesetz (Federal Elections Act) Conference of the European Regional Legislative Assemblies Christlich Demokratische Union (Christian Democratic Union) Comission of the European Communities Central and Eastern Europe Council of European Municipalities and Regions Charter of Fundamental Rights of the European Union Common Foreign and Security Policy Chef des Bundeskanzleramts (Head of the Federal Chancellery) Court of the European Union Commission for the Modernisation of the Federal Order European Farmers’ Association European Committee of the Regions Committee of Permanent Representatives Civil Service Tribunal Christlich-Soziale Union (Christian Social Union) Deutscher Bauernverband (German Farmers’ Association) Desiderius-Erasmus-Stiftung (Desiderius Erasmus Foundation) Deutscher Gewerkschaftsbund (German Trade Union Confederation) Deutsche Krankenhausgesellschaft (German Hospital Federation) Deutsche Kommunistische Partei (German Communist Party) Deutschlandradio Deutscher Landkreistag (German County Association) Deutscher Olympischer Sportbund (German Olympic Sports Confederation)

xviii

ABBREVIATIONS

DP dpa DPhV DST DStGB DUH DVU DW DZP EAW EC ECA ECB ECHR ECJ ECPM ECR ECSC ECT EDC EDP EEA EEC EESC EFA EFSF EGP EL EMK EMU ENP EP EPC EPP ESM ETUC EU EUCO EURATOM Euro Coop

Deutsche Partei (German Party) Deutsche Presse-Agentur (German Press Agency) Deutscher Philologenverband (German Philological Association) Deutscher Städtetag (Association of German Cities) Deutscher Städte- und Gemeindebund (German Association of Towns and Municipialities) Deutsche Umwelthilfe (Environmental Action Germany) Deutsche Volksunion (German People‘s Union) Deutsche Welle Deutsche Zentrumspartei (German Centre Party) European Arrest Warrant European Communities European Court of Auditors European Central Bank European Convention on Human Rights European Court of Justice European Christian Political Movement European Conservatives and Reformists European Coal and Steel Community EC Treaty European Defence Community European Democratic Party European Economic Area European Economic Community European Economic and Social Committee European Free Alliance European Financial Stability Facility European Green Party Party of the European Left Europaministerkonferenz (Conference of Ministers for European Affairs) Economic and Monetary Union Effective number of parties European Parliament European Political Cooperation European People’s Party European Stability Mechanism European Trade Union Confederation European Union European Council European Atomic Energy Community European Community of Consumer Co-operatives

ABBREVIATIONS

EUROFER EVG FAG FAP FCC FDP FNA FRG GB/BHE

G-BA GdL GdP GDP GDR GEW GG GGO GKV GmbH GO BR GOBReg GOBT Greens/EFA GUE/NGL GVK HV ID IG BCE IG Metall IHK

xix

European Steel Association Eisenbahn- und Verkehrsgewerkschaft (Railway and Transport Union) Finanzausgleichsgesetz (Fiscal Equalisation Law) Freiheitliche Deutsche Arbeiterpartei (Free German Workers’ Party) Federal Constitutional Court Freie Demokratische Partei (Free Democratic Party) Bundesnetzagentur (Federal Network Agency) Federal Republic of Germany Gesamtdeutscher Block/Bund der Heimatvertriebenen und Entrechteten (All-German Bloc/League of Expellees and Disenfranchised) Gemeinsamer Bundesauschuss (Federal Joint Committee) Gewerkschaft der Lokführer (German Train Drivers’ Union) Gewerkschaft der Polizei (Police Union) Gross Domestic Product German Democratic Republic Gewerkschaft Erziehung und Wissenschaft (Education and Science Workers’ Union) Grundgesetz (Basic Law) Gemeinsame Geschäftsordnung der Bundesministerien (Joint Rules of Procedure of the Federal Ministries) Gesetzliche Krankenversicherungen (public health insurance funds) Gesellschaft mit beschränkter Haftung (limited company) Geschäftsordnung des Bundesrates (Rules of Procedure of the Bundesrat) Geschäftsordnung der Bundesregierung (Rules of Procedure of the Federal Government) Geschäftsordnung des Deutschen Bundestages (Rules of Procedure of the German Bundestag) Greens/European Free Alliance European United Left/Nordic Green Left Gemeinsame Verfassungskommission (Joint Constitutional Committee) Hessische Verfassung (Constitution of the State of Hesse) Identity and Democracy group Industriegewerkschaft Bergbau, Chemie, Energie (Mining, Chemical and Energy Industrial Union) Industriegewerkschaft Metall (Metalworkers’ Union) Industrie- und Handelskammer (Chambers of Commerce and Industry)

xx

ABBREVIATIONS

IMF IMK IT JMStV JSC KBV KEF

KEK KMK KPD KZBV LDPD LGA MaßstG MAD MdB MdL MdRT MDStV MEP MMPS MP MPK MStV NATO NDR NGOs NL

International Monetary Fund Innenministerkonferenz (Conference of Ministers of the Interior) Information Technology Jugendmedienschutz-Staatsvertrag (Youth Media Protection Treaty) Judicial Selection Committee Kassenärztliche Bundesvereinigung (National Association of Statutory Health Insurance Physicians) Unabhängige Kommission zur Ermittlung des Finanzbedarfs (Independent Commission to Determine the Financial Requirements of Broadcasters) Kommission zur Ermittlung der Konzentration im Medienbereich (Commission on Concentration in the Media) Kultusministerkonferenz (Standing Conference of the Ministers of Education and Cultural Affairs) Kommunistische Partei Deutschlands (Communist Party of Germany) Kassenzahnärztliche Bundesvereinigung (National Association of Statutory Health Insurance Dentists) Liberal-Demokratische Partei Deutschlands (Liberal Democratic Party of Germany) Local Government Association Maßstäbegesetz (Standards Law) Militärischer Abschirmdienst (Military Counterintelligence Service) Member of the Bundestag Member of a state parliament Member of the Reichstag Staatsvertrag über Mediendienste (Interstate Treaty on Media Services) Member of the European Parliament Mixed-member proportional system Member of Parliament Ministerpräsidentenkonferenz (Conference of Prime Ministers) Medienstaatsvertrag (Interstate Media Agreement) North Atlantic Treaty Organization Norddeutscher Rundfunk (Northern German Broadcasting Corporation) Non-Governmental Organisations Nationale Liste (National List)

ABBREVIATIONS

NPD NPM NRW NSU ÖDP OECD OEEC OLAF OMT ORD ParlStG

PartG PDS PES PJCC PKGr PR PSPP PUAG RAF RBB RBeiStV REP RFinStV RKI RND RStV RV S&D SAP

xxi

Nationaldemokratische Partei Deutschlands (National Democratic Party of Germany) New Public Management North Rhine-Westphalia Nationalsozialistischer Untergrund (National Socialist Undergound) Ökologisch-Demokratische Partei (Ecological Democratic Party) Organisation for Economic Cooperation and Development Organisation for European Economic Cooperation European Anti-Fraud Office Outright Monetary Transactions Own Resources Decision Gesetz über die Rechtsverhältnisse der Parlamentarischen Staatssekretäre (Act governing the Legal Status of Parliamentary State Secretaries) Parteiengesetz (Political Parties Act) Partei des Demokratischen Sozialismus (Party of Democratic Socialism) Party of European Socialists Police and Judicial Cooperation in Criminal Matters Partlamentarisches Kontrollgemium (Parliamentary Oversight Panel) Proportional representation Public Sector Purchase Programme Gesetz zu Untersuchungsausschüssen (Committees of Inquiry Act) Rote Armee Fraktion (Red Army Fraction) Rundfunk Berlin Brandenburg (Radio Berlin Brandenburg) Rundfunkbeitragsstaatsvertrag (Interstate Broadcasting Agreement on License Fees) Republikaner (Republicans) Rundfunkfinanzierungsstaatsvertrag (Interstate Agreement on Broadcasting Funding) Robert Koch-Institute RedaktionsNetzwerk Deutschland (Editorial Network of Germany) Rundfunkstaatsvertrag (Interstate Broadcasting Agreement) Reichsverfassung (Imperial Constitution) Progressive Alliance of Socialists and Democrats Sozialistische Arbeiterpartei (Socialist Workers’ Party of Germany)

xxii

ABBREVIATIONS

SDAP SEA SED SMC SPD SPE SRP SSW StGB StS TCE TEU TFEU TMG TVG UBA UK VAT ver.di WASG WAV WDR WRV ZDF ZerlG

Sozialdemokratische Arbeiterpartei (Social Democratic Workers’ Party of Germany) Single European Act Sozialistische Einheitspartei Deutschlands (Socialist Unity Party of Germany) Single-member constituency Sozialdemokratische Partei Deutschlands (Social Democratic Party) Party of European Socialists Sozialistische Reichspartei (Socialist Reich Party) Südschleswigscher Wählerverband (South Schleswig Voters’ Association) Strafgesetzbuch (German Criminal Code) State Secretary Treaty establishing a Constitution for Europe Treaty on European Union Treaty on the Functioning of the European Union Telemediengesetz (Telemedia Act) Tarifvertragsgesetz (Collective Agreements Act) Umweltbundesamt (Federal Environmental Agency) United Kingdom Value-added tax Vereinigte Dienstleistungsgewerkschaft (United Services Union) Wahlalternative Arbeit und soziale Gerechtigkeit (Labour and Social Justice—The Electoral Alternative) Wirtschaftliche Aufbau-Vereinigung (Economic Reconstruction Union) Westdeutscher Rundfunk (West German Broadcasting Corporation) Weimarer Reichsverfassung (Weimar Constitution) Zweites Deutsches Fernsehen (Second German Television Channel) Zerlegungsgesetz (Reallocation Law)

List of Figures

Fig. 1.1 Fig. 3.1 Fig. 3.2 Fig. 3.3 Fig. 4.1 Fig. 4.2 Fig. 5.1 Fig. 5.2

Fig. 6.1 Fig. 7.1 Fig. 7.2 Fig. 8.1

Fig. 9.1 Fig. 9.2 Fig. 9.3

The political system as a process model Parliamentary groups in the European Parliament (2019–2024) The EU system of government Infringement proceedings against EU legislation in member states The tax system in the German federal system: Forms, revenue sovereignty and revenues Financial resources of the states before and after equalisation Vote share changes of government and opposition parties in state elections (1970–2022) Elections to the European Parliament in Germany (1979–2019), changes in vote shares of government and opposition parties at the federal level The German party system in the two-dimensional political space Associations registered with the German Bundestag (1974–2020) Ideal–typical process of collective bargaining negotiations Organisational structure of a public service broadcasting institution: The case of Bavarian Broadcasting Corporation (BR) The federal system of government Organisational structure of the German Bundestag Procedure for federal legislation

4 82 86 92 109 112 170

174 211 244 261

286 311 314 327

xxiii

xxiv

LIST OF FIGURES

Fig. 10.1 Fig. 11.1 Fig. 11.2 Fig. 12.1 Fig. 13.1 Fig. 14.1 Fig. 14.2

Organisational structure of the Scholz government Partisan majorities in the Bundesrat (1949–2022, in percent of votes) Mediation Committee: Number of cases and denials of consent (in percentages, 1949–2022) The structure of the Federal Constitutional Court The parliamentary system of government in the German states Revenue and expenditure of German municipalities (2021) The local system of government in Germany

361 420 421 437 470 515 521

List of Tables

Table 1.1 Table 1.2 Table Table Table Table

1.3 1.4 2.1 2.2

Table 3.1 Table 5.1 Table 5.2 Table Table Table Table Table Table

5.3 6.1 6.2 6.3 6.4 6.5

Table Table Table Table Table

7.1 7.2 7.3 7.4 7.5

Structural principles of democratic systems Majoritarian and consensus democracy (according to Lijphart) Overview of the Federal Republic’s history The political system of Germany: Book outline Structure of the Basic Law Structural principles of the Weimar constitution and the Basic Law Historical development of the European Union: Deepening integration and territorial enlargement Effects of the Bundestag electoral system (1949–2021) Turnout and party vote shares in Bundestag elections (1949–2021) Electoral systems in the German states Organisational structure of German political parties Membership of Bundestag parties Income of Bundestag parties (2009–2017) Social cleavages and party families in Germany German parties in the European Parliament and in European parties Functions of associations German associations by areas of activity Organisational structures of German trade unions Pluralist and corporatist systems of associations Registered interest organisations at EU level (2021)

5 9 13 26 41 47 77 149 160 166 190 195 201 203 222 239 245 250 257 266

xxv

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Table 8.1 Table 9.1 Table 10.1 Table 10.2 Table 11.1 Table 12.1 Table 12.2 Table 12.3 Table 13.1 Table 13.2 Table 13.3 Table Table Table Table

13.4 13.5 13.6 13.7

Table 14.1 Table 14.2

Features of public service media and private media in Germany Socio-demographic structure of the German Bundestag (in percent) Chancellors of the Federal Republic of Germany (1949–2022) Presidents of the Federal Republic of Germany (1949–2022) Vote distribution in the Bundesrat (1949–2022) Types of proceedings at the Federal Constitutional Court Presidents of the Federal Constitutional Court (1951–2022) Seminal decisions by the FCC on European integration Socioeconomic characteristics of the German states (2020) Seat allocation in the state parliaments (2022) Rules of government formation and parliamentary dissolution in the states Vertical structure of the German state administrations Constitutional courts of the German states Popular legislation in the German states Prime ministers and government coalitions in the German states (2022) Institutional powers of councils and mayors in German municipalities Electoral systems and institutions of direct democracy in German municipalities

284 340 369 388 412 439 446 453 466 472 478 481 484 488 494 522 524

CHAPTER 1

The Political System of Germany: Analytical and Historical Foundations

“All state authority is derived from the people. It shall be exercised by the people through elections and other votes and through specific legislative, executive and judicial bodies”. This is how German democracy is described in Article 20, paragraph 2 of its constitution, the Basic Law. Democracy is based on general, direct, equal, free and secret elections in which citizens delegate political power to their representatives to make legally binding decisions for all of society. In addition, the powers of the state—legislative (legislation), executive (implementation of the laws) and judicial (adjudication of laws)—are to be exercised by different institutions with mutual checks and balances intended to prevent abuse of power. How does the German political system look like and how does it work? What are its characteristic strengths and weaknesses? What institutional reform options have been discussed as a means of improving its performance? Our book offers systematic and differentiated answers to these questions. In this introductory chapter, we will set out the analytical and historical foundations that are necessary to gain an understanding of the main structures and processes of this political system. In Section 1.1, we will explain how we define a democratic system of government and how political will formation and decision-making can be organised within this system. In Section 1.2, we will trace the historical evolution of © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 F. Grotz and W. Schroeder, The Political System of Germany, New Perspectives in German Political Studies, https://doi.org/10.1007/978-3-031-32480-2_1

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German democracy since 1945 in light of its social, economic and international context. In Section 1.3, we will outline the structural features of the German political system and sketch out how they are addressed throughout this book.

1.1 Theoretical Framework: Majoritarian and Consensus Democracy Our everyday life is shaped by politics in many ways. The very fact that our local swimming pool is refurbished, that education at public universities is free, that the unemployed receive benefits, that there are no border controls between countries inside the European Union, that we have the freedom to express our political opinions and the right to defend ourselves against state measures through the courts—all this and much more is the result of decisions made by political actors at local, state, federal and EU level. As different as the subjects of these decisions are, they all have one thing in common. In a liberal democracy, such as Germany, the interests of the citizens are the foundation and the point of reference for government actions. This means that we are not just passive recipients of political decisions; we can also play an active role in shaping them. However, it is not easy to understand how the needs of individuals and groups are addressed in the German political system. This is because interests in a pluralist society are very diverse and heterogeneous. But it is also because political will formation and decision-making happen on several governmental levels, involving a multitude of different institutions and political actors. These political processes are embedded in various social, economic and media contexts that can limit or extend political decisionmakers’ capacity to act. Given these fragmented and complex structures, it is quite difficult to reconstruct political decisions in detail and to identify who exactly was responsible for making them. But it is essential to understand these processes in order to assess how well democracy actually works in Germany. Our book provides a systematic overview of the political institutions and processes in the Federal Republic of Germany. Most textbooks on German politics use the term “political system” but do not provide an explicit definition (von Beyme 2017; Marschall 2018; Schmidt 2016; Sontheimer et al. 2007; for an exception see Mannewitz and Rudzio 2022, pp. V–VI). The term “political system” is also widely used in

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everyday German language, where it is usually taken to mean the “democratic system of government”. We refer to this common usage of the term for the analysis of German democracy. We will therefore introduce the general concept of the political system before explaining why and how we use Arend Lijphart’s (2012) seminal distinction between majoritarian and consensus democracy for our own work. David Easton (1965) coined the term political system to describe the institutional conditions, processes and results of political decision-making as a cohesive entity. This concept is still used as a general frame of reference to analyse politics and policies in nation-states (Nohlen and Thibaut 2015). According to Easton’s understanding, a system is distinct from an environment, although the two are closely interconnected. Internally, the system consists of various elements (structures ) that interact with each other in order to perform certain functions. Performing these functions is the actual purpose of the system and ensures its maintenance. In principle, all areas of modern society could be seen as sub-systems, each pursuing its own specific goal. The political system is responsible for the “production of generally binding decisions to resolve societal problems” (Merkel 2013, p. 209). Resolving these problems is not a single act but follows a regulatory cycle that can be divided into six phases (Fig. 1.1). The starting point is a given problem that society considers to be particularly urgent and for which it demands or supports a solution. This input is taken up and processed by the actors at the heart of political decision-making (throughput ). The result is a generally binding regulation or law (output ) that is put into practice (outcome). Further effects (impact ) of this implemented regulation are received and evaluated by society (feedback). This regulatory cycle can be applied to all political systems regardless of whether they are democratic or not (Merkel 2013). What is special about democracies is the fact that the people (demos ) elect political representatives, who make generally binding decisions on their behalf. All citizens can participate equally in these elections by choosing between different candidates or parties who compete with each other in a free and fair contest. This creates a system of political dependence: Damocles’ sword of re-election puts pressure on decision-makers to act in the interest of their voters. Thus, the representational relationship between the voters and those whom they elect ensures that “laws are ‘created’ by those they will be applied to” (Merkel 2013, p. 214). Therefore, universal suffrage and competitive elections are the core defining criteria of democratic systems (Dahl 1971).

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Input

Throughput

Output

Demands and support

Decision-making centre

Binding policy decisions

Reception and evaluation

Policy effects

Policy implementation

Feedback

Impact

Outcome

(Domestic and international) environment

Fig. 1.1 The political system as a process model (Source Authors’ compilation)

But elections alone do not render a democracy functional. First, political decision-makers must govern in the interests of the citizens throughout the entire legislative period and not exploit their positions of power. Therefore, it is necessary to establish an institutionalised separation of powers, whereby legislative, executive and judicial competences are divided among different state bodies, which exercise mutual checks and balances. Second, the channels of communication between society and the decision-making centre must be organised so that the concerns of the various groups are adequately taken into account. This intermediation of political interests is the most important task of political parties, interest groups and the media, which are also called intermediary organisations. To investigate the empirical functioning of a democracy, many scholars use the term system of government (Croissant 2010, p. 118), referring to the structures that are part of political will formation and decision-making from the input to the output phase. The institutional core of the system of government consists of constitutional bodies, such as the head of state, the government and parliament. In addition, there are “the judiciary and the administration as well as the relevant institutions for political will formation such as the electoral system, political parties, interest groups and the media” (ibid.). How can a democratic system of government be organised to ensure optimal functioning of the political will formation and decision-making? This is the key question in both the theory and the practice of democracy

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and has been asked countless times since ancient Greece (Schmidt 2019). Needless to say, it is extremely difficult to come up with a generally valid answer. The main reason for this is that democratic systems of government are confronted with widely divergent expectations. In general, two distinct functions ensure their societal legitimacy (Scharpf 1970).1 On the one hand, a democratic system of government should reflect the diversity of societal interests (Table 1.1). This means that all citizens and groups have equal access to political will formation and decisionmaking (inclusion) and are represented in proportion to their size (representation). The input legitimacy of democracy is predicated on this. This goal is best achieved in a pluralistic society if the structures of the governmental system exhibit a high degree of institutional power dispersion and include all relevant societal groups that may agree on common political solutions (consensus principle). Lijphart (2012) calls this ideal type of governmental system consensus democracy.2 On the other hand, a democracy should be able to make generally binding decisions, even on highly conflictual matters, and thus demonstrate its capacity to take political action. Perhaps the easiest way to Table 1.1 Structural principles of democratic systems

Core goal Normative advantages Focus of legitimacy Ideal-typical system of government

Consensus principle

Majoritarian principle

Reflection of societal diversity of interests Inclusion Representation Input legitimacy Consensus democracy

Capacity for political action Efficiency Transparency Output legitimacy Majoritarian democracy

Source Authors’ compilation

1 Furthermore, all political systems must fulfil certain basic functions such as the political socialisation of the citizens, the recruitment of political elites and the communication between their individual parts (Almond and Powell 1988). One may also describe the functions necessary for democratic legitimacy in more differentiated ways (see, for example, Kneip and Merkel 2020). For our purposes, we will focus on the central input and output functions. 2 Similar concepts used in the extant literature have slightly different emphases, such as “proportional democracy” (Proporzdemokratie; Lehmbruch 1967; Powell 2000) or “concordance democracy” (Konkordanzdemokratie; Lehmbruch 1992).

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achieve this would be to transfer all decision-making powers permanently to one individual. However, such a concentration of power would be incompatible with the idea of democracy. Therefore, in addition to the separation of powers, one needs to have a procedure to enable decision-making that requires the least possible effort (efficiency), is easy to reconstruct (transparency) and is thus acceptable to most citizens: the majority rule. The principle underlying the majority rule states that a valid decision can be reached by the larger group of participants in a decision-making process (Nohlen 2015). Of course, the application of the majoritarian principle always produces a defeated minority. Yet, this minority will ultimately have a chance to become part of the majority and assert its interests because the political decisions of one government can be revisited by the next one. This prospect always exists in a democracy, since new elections take place at regular intervals. Therefore, a democratic system of government can also be organised according to the majoritarian principle. Where this is applied, it ensures its acceptance in society mainly through the transparency and efficiency of political decisions (output legitimacy). The government that gains an electoral majority becomes the sole centre of power and is given the greatest possible scope to implement its political programme. At the same time, it is solely responsible for its political decisions and, at the end of the legislative period, it must once again face the voters, who are then free to elect the minority as the new majority. The ideal type of this system of government is called majoritarian democracy (Powell 2000; Lijphart 2012). Of course, in every democracy, legitimacy must be established through both input and output. It is therefore crucial to include the various societal interests in the political will formation process wherever possible, while also making binding decisions. But conflicts arise between the capacity for inclusion and the capacity to act when decision-makers attempt to achieve both at the same time. The more diverse the interests that are included in the decision-making process, the more difficult and protracted it becomes. But leanness and efficiency in political processes can come at the expense of broadness and effectiveness in taking these interests into account. No system of government can resolve this tension permanently. And there is no democracy that represents the majoritarian or the consensus principle in their purest form. However, within a given system of government, there may either be more elements of majoritarian

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democracy or more elements of consensus democracy, which shape the specific way it functions. In order to explore the empirical patterns of majoritarian and consensus democracy, Lijphart (2012) studied 36 established democracies. To do so, he first identified ten structural characteristics of democratic systems, each of them with two specifications (Grotz 2013, p. 240). 1. Party system: Are two or more political parties represented in parliament? 2. Government: Is the government composed of one party or is it a broad coalition of multiple parties? 3. Executive-legislative relations: Does the government dominate over the parliament or is there a balance of power between the two institutions? 4. Electoral system: Is the parliament elected through a majoritarian electoral system or through a proportional electoral system? 5. Interest groups: Does the government have to deal with an organisationally fragmented system of associations (pluralism) or are there powerful umbrella associations with privileged access to government (corporatism)? 6. State structure: Are political powers concentrated at the national level (unitary and centralised) or divided between the central state and subnational authorities (federal and decentralised)? 7. Parliament: Does the legislature consist of one or two chambers? 8. Constitution: Can the constitution be changed by the governing majority (flexible constitution) or is there a higher threshold (rigid constitution)? 9. Constitutional review: Is there a (strong) constitutional court with the authority to review the political decisions of parliament and government? 10. Central bank autonomy: Is the central bank controlled by the government or can it pursue its monetary policy independently? Thus, a democratic system of government includes both institutional characteristics defined by the constitution and other legal sources (polity), such as the electoral system, and those concerning the constellation of political actors (politics ), such as the party system (Fuchs 2000, p. 41).

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Lijphart categorises the ten structural characteristics of democracies into two dimensions. The executive-party dimension consists of the first five characteristics, which form the core of democratic will formation and decision-making. The federal-unitary dimension consists of the other five characteristics, which form the legal-institutional framework of the decision-making centre and limit its scope for action to a greater or lesser extent. Altogether, the manifestations of these structural characteristics can be summarised into two contrasting models of democracy (Table 1.2). A majoritarian democracy is characterised in ideal-typical terms by a twoparty system emerging from a plurality electoral system. The strongest of the two parties then forms a majority government. Moreover, a majoritarian democracy is organised as a unitary-centralised state. It is further characterised by a pluralist system of associations, a central bank controlled by the government and a unicameral parliament. The government can amend the constitution with a simple majority and is not subject to scrutiny by a constitutional court. Thus, the entire system is organised according to the majoritarian principle. It concentrates power in the hands of the government, which is legitimated by the majority of voters, and endows it with a wide scope of action for the implementation of its political programme. Among the democracies in Lijphart’s study, New Zealand and the United Kingdom come closest to this ideal type, although they have introduced some consensual elements in the recent past (Lijphart 2012, pp. 244–245). Consensus democracy exhibits the exact opposite characteristics. It is defined by a multiparty system emerging from elections conducted under proportional representation. The government consists of multiparty coalitions that have to engage with a highly concentrated, corporatist system of associations. There is a balance of power between the government and parliament, and the central bank is politically independent. In addition, consensus democracy has a federal-decentralised state structure and is based on a constitution that can only be amended by broad majorities. Moreover, legislative power is divided between two chambers of parliament, and the final authority to review existing laws lies with a strong constitutional court. Thus, the consensus principle is incorporated into all structural traits, which ensures broad participation by diverse groups in political will formation and decision-making. At the same time, the government is always dependent on the support of other actors and thus can only implement its own agenda to a limited extent. The

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Table 1.2 Majoritarian and consensus democracy (according to Lijphart)

Executive-party dimension Party system Government Executive-legislative relations Electoral system Interest groups Federal-unitary dimension State structure Parliament Constitution Constitutional review Central bank Real-world cases

Majoritarian democracy

Consensus democracy

Two-party system Single-party majority Dominance of government Majority system Pluralism

Multiparty system Broad multiparty coalitions Power sharing Proportional representation Corporatism

Unitary and centralised Unicameral parliament Flexible constitution No constitutional court Dependent central bank New Zealand United Kingdom

Federal and decentralised Bicameral parliament Rigid constitution Strong constitutional court Independent central bank Switzerland Federal Republic of Germany

Source Authors’ compilation based on Grotz and Müller-Rommel (2011, p. 15) and Lijphart (2012)

empirical cases that correspond most closely to this model of democracy are Switzerland and the Federal Republic of Germany (Lijphart 2012, pp. 244–245). Lijphart’s study therefore enables us to categorise the German system of government in international comparison. It is characterised more than other democracies by the involvement of many institutions and actors, who prevent the government majority from gaining excessive power. This is consistent with other concepts that have been coined to describe the specificities of the German political system, such as “semi-sovereign state” (Katzenstein 1987), “grand coalition state” (Schmidt 2002) or “negotiation democracy” (Lehmbruch 1996). Furthermore, Lijphart offers a theoretical framework that is particularly useful for understanding how democracy in Germany works.3 First, Lijphart’s approach allows us to systematically describe all the structural elements of the political system. Whether the focus is on formalinstitutional arrangements, like the electoral system, or the constellation of actors, like the party system, we can always examine whether they 3 In the following, we only refer to Lijphart’s theoretical framework and not to how it is applied in his comparative study. For more detailed reviews, see Ganghof (2005), Grotz (2013, pp. 241–245) and Schmidt (2019, pp. 329–342).

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are organised according to the majoritarian principle or according to the consensus principle. Second, the distinction between the capacity for inclusion or action allows us to apply a functional perspective on the political system. On this basis, we may also explore how successful the given elements are in ensuring that political will formation and decision-making are inclusive and efficient. Third, the tension between the logics of majoritarian and consensus democracy facilitates a differentiated assessment of institutional reform proposals. For instance, those who deem the effects of a proportional electoral system inadequate in producing stable government majorities and therefore demand a plurality system must also explain what such reform would mean for the parliamentary representation of diverse societal interests. To put it in more general terms: if we wish to do justice to the complexity of modern democracy, we must take the tradeoffs between input-oriented inclusion and output-oriented efficiency into account. For the reasons mentioned above, our book utilises the model of democracy proposed by Lijphart to provide an overview of the structure and functioning of Germany’s political system.4 At the same time, we adapt his approach in two respects. First, Lijphart’s model does not cover all aspects relevant to the functioning of German democracy. Therefore, we will make some modifications and amendments to the structural characteristics, which we will elaborate on in Section 1.3. Moreover, we are less interested in assigning the structures of the political system in its entirety to either the majoritarian or the consensus principle but rather seek to show which different elements of majoritarian and consensus democracy exist in Germany and how they interact in political practice. Second, the historic context plays a central role in understanding the workings of political systems. Democratic institutions are always created in specific situations. Their structure does not just emerge from a discussion on different constitutional models. Instead, historical experiences, political–cultural traditions and the self-interests of political decision makers play a central role (Hall and Taylor 1996). Once established, these institutions may become further consolidated—with the result that they largely remain within the path they have embarked on (path dependency; Werle 2007). Thus, the foundational conditions of democracy can shape its 4 Adrian Vatter (2020) adopts a similar approach in his textbook about the political system of Switzerland.

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institutional structure in the medium and long term. Moreover, socioeconomic conditions and the international environment significantly affect the performance of a political system. For instance, if the society becomes increasingly differentiated, this development may be reflected in a higher fragmentation of the party system—with the result that it becomes more difficult to form government majorities. A democracy can thus experience a significant functional transformation while its formal institutions remain unchanged. Against this backdrop, we present below a compact overview of the foundational conditions of the Federal Republic of Germany as well as the most relevant societal, economic and international factors that shaped its evolution.

1.2 The Federal Republic of Germany: A Historical Overview The Federal Republic of Germany (FRG) was founded on 23 May 1949. It is the longest-lasting political regime in the nation’s history since the nineteenth century. The German Empire (1871–1918), the Weimar Republic (1918–1933), National Socialism (1933–1945) and the German Democratic Republic (GDR; 1949–1990) were all of much shorter duration but had a lasting impact in multiple different ways. It was by no means clear at the outset that the FRG would become such a stable, internationally respected and successful democracy. The “burden of the past” (Wolfrum 2006, p. 17) was immense. The unconditional surrender of the German Wehrmacht on 8 May 1945 did not constitute a “zero hour” that would automatically have smoothed the transition from the Nazi regime to a democratic order. It was not until 40 years later—in a historic speech by then Federal President Richard von Weizsäcker—that 8 May was embedded in national remembrance as “Liberation Day”. Democracy in present-day Germany is hence not the result of a wellthought-out plan but rather of what has rightly been called a “history of normalisation” (Conze 2009) and the “long road to the West” (Winkler 2015) that has been shaped by many different actors, both inside and outside government institutions. Their political room for manoeuvre was not only defined by constitutional provisions but also by the domestic and international context. Hence, we will provide an overview of the most important stages in the history of the federal republic below (Table

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1.3). We will focus on the core events and developments in the international environment as well as in the economy and in society that had a lasting influence on the functioning of the political system. This historical overview is divided into seven phases, which are mainly based on watershed events and crucial developments: the end of the occupation period and the founding of the two separate German states in 1949, the emergence of civil society in the late 1960s, reunification in 1990 and the “Zeitenwende” following the Russian invasion in Ukraine in 2022. Furthermore, the periodisation points to significant changes in the federal government. Our account below has been deliberately condensed and includes references to further chapters of this book where we discuss certain developments in more detail. The first phase covers the period immediately before the founding of the FRG, from 1945 to 1949. The path from fascism to a democratic state, which began after the unconditional surrender, was largely determined by the Allied occupying powers. At the same time, the political legacy of the Weimar Republic—the first democracy on German soil— had a formative impact, with prominent emigrants and figures from the resistance to the Hitler regime contributing to the foundation of the new democracy. Former mid-ranking and low-level functionary elites of the Nazi regime also played a significant role, since there was no far-reaching “denazification” beyond the Nuremberg Trials (1945–1946), which only prosecuted the main war criminals. Consequently, the question posed by Eckard Conze (2009, p. 10) in his book on the history of the FRG remains relevant far beyond the immediate post-war period: “How could a society develop normality in the shadow of National Socialism, in the shadow of the Second World War and the crimes against humanity inextricably connected with it?” In the context of the rule by occupying powers and of an everyday life of deprivation, suffering and insecurity in a “collapsed society” (Kleßmann 1982), democratic structures gradually emerged from the bottom up. At local level, political parties, trade unions and other associations were founded; the churches also played an important role in promoting and stabilising the new political order. Soon afterwards, the German states (Länder) were established. From 1946 onwards, the state parliaments were democratically elected and some of them already adopted their own constitutions (Chapters 2.3 and 13.1). In addition, the prime ministers of the states emerged as political key players as they negotiated with the Allies about the drafting of a federal constitution.

Governments

Allied rule in occupation zones

1949–1963: Adenauer I–IV (CDU/ CSU-FDP) 1963–1966: Erhard I–II (CDU/ CSU-FDP)

1945–1949: Reconstruction and state foundation

1949–1966: Economic miracle and conservative dominance

. 8 May 1945: Unconditional surrender . Start of the East–West conflict (Truman doctrine, blockade of Berlin) . Division of Germany . Foundation of the FRG and GDR . Cold War (Korean War 1950; construction of Berlin Wall 1961; Cuban Missile Crisis 1962) . FRG’s claim to sole international representation . Rearmament (1954); NATO accession (1955) . Start of European integration (ECSC 1952; Treaties of Rome 1957)

International context

Overview of the Federal Republic’s history

Phases

Table 1.3

. “Collapsed society” . Coming to terms with the consequences of the war; partial de-nazification . Democratisation of municipalities and Länder . Foundation of political parties and associations . Cultural Westernisation . Consumer society . “End of proletarianism”

Societal context

(continued)

. Marshall Plan (1948–1952) . Introduction of the D-Mark (1948) . Autonomy of collective bargaining . Economic prosperity . Social market economy . Expansion of the welfare state

Economic context

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Governments

1966–1969: Kiesinger I (CDU/ CSU-SPD) 1969–1974: Brandt I–II (SPD-FDP) 1974–1982: Schmidt I–II (SPD-FDP)

1982–1990: Kohl I–III (CDU/ CSU-FDP)

1966–1982: Societal transformation and social-liberal era of domestic reforms

1982–1990: “Farewell to the provisional state” and reunification

(continued)

Phases

Table 1.3 Societal context

. New dynamics of European integration (SEA 1985) . End phase of Cold War (until 1985) . Perestroika and collapse of communist regimes in Eastern Europe (from 1985) . Democratic revolution in the GDR/German reunification

. Growing environmental awareness (dying forest syndrome, Chernobyl) . Parliamentary integration of the Green Party . Controversial trends (“spiritual-moral transformation”; historians’ dispute) . Successes by right-wing radical Republikaner party

. Detente politics/Neue Ostpolitik . Mobilisation of civil society and (1973: UN accession of FRG protests: new social movements; and GDR) left-wing terrorism (Baader-Meinhof group); . From 1979: “Second Cold War” anti-nuclear movement; (Afghanistan War, NATO foundation of the Green party Double-Track Decision) . From 1973: Crisis of European . Domestic reforms integration (Eurosclerosis)

International context

. Keynesian macroeconomic policy (1966–1975) . End of the Bretton Woods system (1973) . Oil price crises (1974, 1979/ 80) . End of post-war prosperity . Rise of neoliberalism (Thatcherism, Reaganomics) . Privatisation of state-owned enterprises . Start of the restructuring of the welfare state

Economic context

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2009–2013: . New polycentrism (rise of China Merkel II (CDU/ and other regional powers; CSU-FDP) aggressive foreign policy by Russia) 2013–2021: Merkel III–IV . Crisis of multilateralism (CDU/ . Disintegrative trends in the EU CSU-SPD) (problems with democracy in Eastern Europe; Brexit)

2009–2021: Contradictions of globalisation and populist challenges

. Restructuring of Europe (Deepening/expansion of the EU; war in Yugoslavia) . First involvement of the FRG in a war (Kosovo 1999) . 9/11, Islamic terrorism, new asymmetrical wars (Afghanistan, Iraq)

1990–1998: Kohl IV–V (CDU/ CSU-FDP) 1998–2005: Schröder I–II (SPD-Green) 2005–2009: Merkel I (CDU/ CSU-SPD)

1990–2009: German reunification, restructuring processes, search for an international role

International context

Governments

Phases

Economic context

THE POLITICAL SYSTEM OF GERMANY

(continued)

. Transformation of East German . Economic society (institutional transfer; globalisation disappointment and protest; . Economic establishment of PDS/The Left) transformation in East . Asylum compromise Germany and . Societal and social policy reforms Eastern (including Agenda 2010) Europe . Right-wing terrorism (NSU . Financial crisis murders) . Accelerated adjustment of industry and services (internet/ outsourcing) . Mobilisation of right-wing . Exportpopulism and protests oriented (PEGIDA, founding of the AfD) economy as a growth engine . New environmental and climate policies (energy transition after . State debt Fukushima; Fridays for Future) crisis in the Euro countries . Refugee crisis (2015) . Attempts to . COVID-19 crisis (2020/21) reverse the neoliberal paradigm . Platform capitalism/data capitalism

Societal context

1

15

2021–: Scholz I (SPD-GreenFDP)

Since 2021: Zeitenwende and dare to progress

Source Authors’ compilation

Governments

(continued)

Phases

Table 1.3

. Zeitenwende after the Russian invasion of Ukraine (2022): modernisation of Bundeswehr and confrontation with Russia . Reorganisation of energy supply . Economic relations with China under scrutiny

International context

. Increased demands for social security (energy, employment, income) . Increased demands for advanced climate policy

Societal context

. COVID-19 crisis ends debt-avoidance policy . Economic recession . Historically high inflation . Sustainable transformation of the energy sector as a major challenge

Economic context

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The founding of the Federal Republic of Germany took place in the context of the Cold War between the United States and the Soviet Union. The division of the world into two blocs, postulated by the Truman Doctrine (1947) and economically underpinned by US economic aid under the Marshall Plan (1948–1952), made a potential “one-state solution” for Germany a distant prospect. Since the London Big Four Conference at the end of 1947, it had become obvious that there would be a split between the Soviet-occupied zone and the three West-Germanoccupied zones, which began to use a common currency in the form of the Deutschmark in 1948. Between September 1948 and May 1949, the Parliamentary Council drafted the Basic Law as the constitution for the new West German state (Chapter 2.1). It came into force on 23 May 1949 and at the same time established the FRG, which saw itself as the German “core state” and envisaged itself as having a “magnetic effect on the East of Germany” (Wolfrum 2006, p. 41). The GDR was founded on 7 October 1949. This was preceded by the formation of a People’s Council, which was responsible for drafting a GDR constitution that would formally incorporate civic principles and the demands of the workers’ movement, although these constitutional provisions had no binding effect on politics and policies in the GDR. This “dual state foundation” not only cemented the division of Germany but also established an “asymmetrically intertwined history of parallels and differences” lasting over 40 years (Kleßmann 1993). The second phase, from 1949 to 1966, was marked by the FRG’s integration with the West, the economic miracle and the dominance of CDU/CSU-led governments. The ties of the Federal Republic of Germany to the West led to its accession to NATO (1955) and its parallel rearmament (founding of the Bundeswehr) without the status of a nuclear power. A major step of West Germany’s integration into the international community was its accession to the European Coal and Steel Community (1952), which preceded the founding of the European Economic Community (Treaty of Rome 1957; see Chapter 3.1). Following reconciliation with Israel (Luxembourg Agreement of 1952) and France (Élysée Treaty of 1963), the federal republic, in cooperation with France, became the engine of European integration. The integration of the FRG into the Western sphere implied the rejection of the reunification offer made in the Stalin Note (1952) and prompted its claim to be the sole international representation of Germany, as postulated by the Hallstein Doctrine. As large numbers of skilled workers fled the GDR for the FRG in the 1950s,

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the GDR leadership decided in 1961 to build a military-guarded wall along the internal German border. When it became obvious that the GDR could only achieve domestic stability through increasing repression, the legitimacy of West German democracy was further enhanced. Regardless of this, the FRG failed to live up to its own constitutional aspirations in important policy areas, including the equality of women and gay people. Another crucial factor for social and political stabilisation was the “economic miracle” (Wirtschaftswunder), a phenomenon never again experienced in this form. The 1950s and 1960s saw average annual growth rates of around 5% that seemed to guarantee “perpetual prosperity” (Lutz 1989). However, it was not only the successful performance of the economy that contributed to its acceptance but also its “coordinated” structure between the state, the employers and the trade unions, which included above all the autonomy of collective bargaining, the right of co-determination and the Works Constitution Act (Schroeder 2014; Schroeder and Weßels 2017). Economic growth was also associated with the “end of proletarianism” (Mooser 1984), a new level of mass consumption and the expansion of the welfare state (pension reform in 1957; Federal Social Assistance Act in 1961), which provided a convincing response to the quest for social security. At the same time, the executive power of the “chancellor democracy” (Niclauß 2015) embodied in Konrad Adenauer (1949–1963) was limited from the outset by institutional checks and balances. The FRG’s political system, described by Peter Katzenstein (1987) as a “semi-sovereign state”, was thus characterised not only by international dependence but also by a domestic dispersion of power. The fact that the Christian Democratic parties (CDU/CSU) could not maintain their predominant position was due to their insufficient adaptability to social change. At the same time, the Social Democrats (SPD) and the Free Democrats (FDP) underwent programmatic changes, which made them more aligned with broader parts of society. From the mid-1950s, the SPD transformed itself from a traditional workers’ party into a new type of pluralist catch-all party (Klotzbach 1982). The FDP changed from a national-conservative to a social-liberal, reformoriented party (Dittberner 2010). These developments took place in the context of the cultural Westernisation that accompanied the FRG’s political integration with the West and gradually superseded previously predominant references to national culture, especially in music, design and consumption.

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The third phase, from 1966 to 1982, sometimes even perceived as a societal reboot in the sense of pluralisation, liberalisation and increased politicisation (“participatory revolution”), was an era of SPD-FDP coalition governments. This period was distinguished by domestic reforms and a reorientation of foreign policy. Under Chancellor Willy Brandt, Westernisation was complemented by a new Ostpolitik (détente policy towards the Eastern bloc) that was also supported by the United States. For the GDR, this had twofold effects. On the international stage, it enjoyed an upgraded profile (as indicated by its simultaneous admission with the FRG to the UN in 1973). Yet, after the expatriation of well-known singersongwriter Wolf Biermann in 1976, the internal legitimacy of the East German regime began to erode. Following the Soviet Union’s invasion of Afghanistan in 1979 and the NATO Double-Track Decision in the same year, a “Second Cold War” began, which also led to the emergence of a widely supported peace movement in the FRG. The end of post-war economic prosperity—flattening growth rates, the decline of former key industries (including textiles, steel and precision engineering), the oil crises (1973/1979) and the failure of the Bretton Woods system of fixed exchange rates (1973)—also led to the end of Keynesian macroeconomic policy (1966–1975). This became a historic watershed. From now on, the four key objectives of German economic policy—price level stability, high rates of employment, the balance of foreign trade and appropriate economic growth, which were embedded in the 1967 Stability and Growth Act and also referred to as the “magic quadrant”—could no longer be equally pursued. As unemployment figures rose and welfare state standards declined, societal divisions intensified and dissatisfaction with the government grew. Alongside the environmental movement, which had been expanding since the 1970s, major protest streams emerged from the peace movement and the women’s movement. A new party, the Greens (Die Grünen) established itself as their political arm in 1980 and would go on to change the structures of party competition in the long term. In 1969, the CDU/ CSU found itself in parliamentary opposition for the first time, and the new leadership around Helmut Kohl saw this as a mandate to transform the party of chancellors and dignitaries into a modern catch-all party (Schönbohm 1985). At the same time, the SPD-FDP government (1969–1982) aimed to modernise governance and social policies. Some of these reforms had already been laid out before during the grand coalition of CDU/CSU and SPD (1966–1969). A lot of progress was made,

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especially in civil rights and in education and science policies. On the other hand, a left-wing terrorist scene (the Red Army Fraction or RAF, also known as the Baader-Meinhof Group) emerged, which represented a huge challenge to politics and society in the second half of the 1970s. Although barely noticed by the public, covertly operating right-wing terrorism existed as well (see the 1980-Oktoberfest attack). Overall, this third period was characterised by a striking mix of continuity and discontinuity. There was overwhelming continuity, both in terms of government composition (SPD-FDP coalitions) and in the sociopolitical context (civil society mobilisation and protests). In terms of policies, however, the pendulum kept swinging back and forth after 1972, as some of the freedoms previously granted were partially reversed. This backlash began with occupational bans and ended with temporary restrictions on fundamental civic rights in the context of the fight against left-wing terrorism in the second half of the 1970s. A similar dichotomy characterised the area of foreign and security policy. First, there came the détente within the framework of the New Ostpolitik and then a renewed hardening of the Cold War (Afghanistan War, NATO Double-Track Decision). The process of European integration was also ambiguous. At the end of the 1960s, far-reaching options for deepening the European Community were being discussed, and in 1973 a large country, the United Kingdom, joined the EC. However, the following years were dominated by the economic-focused debate about “Eurosclerosis”, in which scepticism about further integration prevailed. Furthermore, the end of post-war economic prosperity had been reached, and a more pessimistic view was spreading, preparing the ground for the subsequent neoliberal boom. Despite all the divergences and inconsistencies, the period from 1966 to 1982 was characterised by two major achievements of the SPD-led government: a proactive expansion of political participation and social and civil rights in the first years and their defence under politically and economically difficult circumstances since the mid-1970s. The fourth phase (1982–1990) was characterised by CDU/CSU-FDP coalition governments under Chancellor Helmut Kohl. It represented the “farewell to the provisional state” (Wirsching 2006), which was completed by reunification. The essence of this period has been pointedly described by Andreas Wirsching (2006, p. 11):

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In the 1980s, the old Federal Republic finally said goodbye to its self-image as a provisional state […]. It had become a largely sovereign partial German state with an independent national interest and an established place in the Western alliance […]. And it is one of the greatest ironies of recent German history that the actual farewell to the provisional state ‘happened’ at the very moment when the ‘old’ federal republic was definitively already detaching from its self-image as a provisional state.

The end of the Cold War was almost entirely unexpected, coming after the glasnost and perestroika reforms in the Soviet Union under Mikhail Gorbachev from 1985 onwards. Communist rule finally collapsed throughout Central and Eastern Europe in 1989/1990. German reunification took place within this context, putting an end to 40 years of division into two states and opening a new chapter in German history. Previously, the majority of West German society had accepted the division as a consequence of fascism and had come to terms with this constellation. The fall of the Berlin Wall on 9 November 1989, forced open by East German citizens, quickly put paid to this impression that there were no alternatives to the current state of affairs. The revolutionary cry “We are the people” (Wir sind das Volk) became “We are one people” (Wir sind ein Volk). On 28 November 1989, Chancellor Kohl presented a TenPoint Programme for Overcoming the Division of Germany and Europe. It outlined a step-by-step path to German unity, which surprised both the German public and the international community. Abroad, Kohl’s plan initially met with great scepticism and outright rejection. But in view of the dynamic developments in East Germany, the picture kept evolving. In the GDR, the CDU-led Alliance for Germany advocated for rapid reunification and emerged as the clear winner of the first free parliamentary election on 18 March 1990. After the principal agreement of the four Allied powers, the FRG and the GDR signed the Unification Treaty on 31 August 1990, which provided for the dissolution of the GDR and its accession under Article 23 of the Basic Law on 3 October 1990. On 12 September 1990, the Two-plus-Four Treaty was signed in Moscow, granting full sovereignty to a reunified Germany. This sealed the peaceful unification of the two German states. At the beginning of this phase, it was unclear whether and how Eurosclerosis could be counteracted. However, European integration soon gathered new momentum, culminating in the first reform of the European treaties (Single European Act, SEA) under Commission

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President Jacques Delors in 1985. Against the backdrop of German unification, the Treaty of Maastricht was adopted in 1992, providing new foundations for the now-renamed European Union and laying the groundwork for the introduction of a common currency. The FrancoGerman axis once again proved to be the engine of European integration. The governments of the United States and the United Kingdom responded to the end of post-war prosperity with strongly neoliberal policies that reduced state control to unleash free market forces. The German government also adopted these new ideas in some policy areas, e.g. by privatising large state-owned enterprises such as the postal service. At the same time, some social policy reforms were made in response to changing demographic requirements (e.g. the pension reform in 1989). Overall, however, the “conservative welfare state” (Esping-Andersen 1990), which was primarily based on contribution-funded social insurance (pension, health, unemployment and accident insurance), remained in place. The accident at the nuclear reactor in Chernobyl in 1986 and public debates on the phenomenon of Waldsterben (dying forest syndrome) solidified an environmental awareness in society that led to the Greens emerging as a new force in the party system. The other parties also began to adapt to these new challenges (Radkau 2011). Nevertheless, an attempt by the CDU/CSU to counter the liberal zeitgeist through a “spiritual and moral transformation” did not make it beyond the announcement stage. In parallel, a dispute among historians (the Historikerstreit ) about the singularity and causality of the Shoa (1986/1987) as well as the emergence of the radical right-wing Republikaner party, which was founded in 1983 and subsequently entered the European Parliament and some state parliaments, generated intensive debates about the intellectual constitution of Germany. The fifth phase covers the first two decades of unified Germany (1990– 2009). It was characterised by the consequences of unification, a new dynamic of simultaneous deepening and widening of European integration, the search for Germany’s role in the world and a restructuring of its economic and social model, oriented towards globalisation. Reunification not only meant the end of German division but it was also linked to new challenges on the international level. Particularly controversial issues included Germany’s participation in the NATO operation in Kosovo (1999) as well as the fundamental changes in asylum law (1993) and the new regulations on migration and asylum at the EU level (Dublin Convention of 1997). With the end of the Cold War, new uncertainties increased everywhere. The Islamist attacks of 11 September 2001 in the United States and the wars that followed in Afghanistan

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and Iraq contributed significantly to this. At the same time, the accession of Central and Eastern European countries to the European Union increased the demands for reforms of the EU under German leadership. Finally, Germany lost its monetary sovereignty, which had been part of its previous identity, by bidding farewell to the Deutschmark and introducing the euro in 1999. In 1998, the SPD won the Bundestag election and formed a joint government with the Greens under Chancellor Gerhard Schröder. Before that, upheavals in the economy and society had led to the narrative of “reform gridlock”, which received an unprecedented level of publicity. Against this background, the SPD-Green government liberalised the citizenship law, laid the foundations for a more sustainable energy policy (Renewable Energies Act, stipulating the subsequent shutdown of nuclear power plants), restructured the welfare state (Agenda 2010) and attempted to redefine Germany’s international role by participating in military missions under the leadership of the UN and NATO. Increasing resistance to these policies not only ended the SPD-Green government but also changed the party system through continuous decline of the Social democrats. The massive vote losses by the SPD and the unwillingness of the party Die Linke (The Left), founded in 2007, to join a federal government made the formation of ideologically connected majority coalitions much more difficult than before (Chapters 6.2 and 13.3). Consequently, the grand coalition of CDU/CSU and SPD that was built as “option of last resort” in 2005 would not prove to be the exception. The sixth phase began with Angela Merkel’s second government and ended with her last one (2009–2021). While the first Merkel government (2005–2009) had still acted in the shadow of the SPD-Green policy legacy, the contradictions of Europeanisation and globalisation now became increasingly obvious and manifested in multiple crises, which brought new and different kinds of challenges for safeguarding economic prosperity and ecological sustainability. At the same time, the political discourse and party politics in Germany became more polarised. The global financial crisis of 2008 showed that crisis management only works by acting within a cooperative international network. This experience again proved relevant during the euro rescue (2011), when Greece faced national bankruptcy, as well as in the refugee crisis (2015/2016) and the COVID-19 pandemic, which erupted in 2020. Despite these

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growing problems, it became more difficult to agree on common solutions at the European and international levels. New political conflicts between Western democracies manifested themselves in the robust veto positions of Poland and Hungary against the rule of law mechanism in the allocation of European funding, the UK’s exit from the EU in 2021 (Brexit) and the temporary withdrawal of the United States from multilateral organisations under President Donald Trump (2017–2021). Furthermore, the rise of China as an economic power with distinct foreign policy interests signalled the emergence of a new polycentrism, accompanied by the aggressive politics of Russia, which occupied Crimea in 2014 and supported secessionist forces in Eastern Ukraine. In Germany, it was ultimately the COVID-19 pandemic that put an end to the policy of a balanced budget. With the suspension of compulsory military service (2011) and the envisaged phase-out of nuclear power and coal, a fundamental shift in defence and energy policies took place. Furthermore, the right-wing populist mobilisation of the Alternative für Deutschland (AfD) party against the EU and the Merkel government’s refugee policy led to the establishment of a six-party system. At the same time, the new climate protection movement, particularly expressed through the Fridays for Future protests and school strikes since 2019, was most beneficial for the Greens, a development that further intensified the crisis of the “old” catch-all parties. As the end of her fourth term as chancellor approached, Angela Merkel opted not to run again. In the 2021 Bundestag elections, the SPD, with its candidate for the chancellorship Olaf Scholz, emerged as the strongest party and formed a coalition with the Greens and the FDP. This government set out to modernise the country, with a coalition treaty programmatically titled “Dare to Progress”. However, extraordinary circumstances thwarted the implementation of this ambitious agenda. Apart from the fact that the COVID-19 pandemic was not completely over, the Russian army invaded Ukraine on 24 February 2022, which not only came quite unexpectedly for most observers but also proved to be a major turning point in several respects. First of all, German politics and society had to realise that the first war of aggression in Europe after 1945 required a substantial improvement of defence capabilities. Three days after the Russian invasion, Chancellor Scholz held a speech before the Bundestag, pointing to the historical shift in Germany’s foreign and security policy, which he called Zeitenwende, and announced a special e100-billion fund to modernise the

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underequipped Federal Armed Forces. This measure ran quite counter to the government’s original agenda, as Germany had profited from the “peace dividend” since the end of the Cold War and most SPD and Green supporters were generally critical of military armament. Furthermore, as Germany had increased its dependence on Russian gas and oil in recent years and could not rely on their deliveries any longer, the federal government had to source new supplies in an extremely short period of time. Since energy prices exploded and the inflation rate reached a historic high, the coalition launched several relief packages to support the ailing economy and the citizens. Finally, cooperative decision-making within the EU and at the international level has become even more challenging than before. This also includes the question of which direction the German–Chinese relations will develop, as a considerable share of Germany’s prosperity has been due to its close economic ties with China, which cannot be easily replaced in the short term. However, the recent experience with Russia shows that economic dependence on an authoritarian regime with an aggressive foreign policy might not be conducive to the long-term resilience of the German economic and social model, which might also affect the democratic order. Hence, although the Scholz government is not more than one year in office at the time of writing, we may quite safely contend that it stands at the beginning of a new, sixth phase in Germany’s post-WWII history, with its further development being more unpredictable than ever before.

1.3

The Outline of This Book

Lijphart’s model of democracy forms the theoretical foundation of our book about the German political system (Section 1.1). Consequently, the following chapters are organised according to the ten characteristics of majoritarian and consensus democracy, with some elements being added in order to take the particularities of the German case into account. To keep the outline as concise as possible, we distinguish between four dimensions of the political system, which include several structural characteristics (Table 1.4). The first dimension consists of three characteristics that form the legal and political framework of the multi-level system. Chapter 2 presents the Basic Law as the constitutional foundation of German democracy. Chapter 3 deals with the European Union as the supranational framework

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Table 1.4 The political system of Germany: Book outline Book chapters 1. The political system of Germany: Analytical and historical foundations The legal and political framework of the multi-level system 2. The Basic Law: Constitutional foundations 3. The European Union as a supranational framework 4. The federal order Democratic will formation and interest intermediation 5. Elections and the electoral system 6. Political parties and the party system 7. Interest groups and the system of associations 8. The media and the media system The federal system of government 9. The German Bundestag 10. The federal government and the federal president: The dual executive 11. The Bundesrat 12. The Federal Constitutional Court States and municipalities: Democracy at the subnational levels 13. The government systems of the German states 14. Politics and administration at the local level Conclusion 15. A resilient democracy? The German political system under scrutiny

Structural characteristics of Lijphart’s democracy model

Constitution (Central bank) State structure

Electoral system Party system Interest groups — Executive-legislative relations Government Parliamentary structure Constitutional review

— —

Source Authors’ compilation

for German politics. Since the 1950s, an increasing number of legislative competences have been transferred from the nation-state to the EU level. This continuous Europeanisation has also changed the form and functioning of domestic political institutions. The most obvious case is the European Central Bank (ECB), which has taken over the most important tasks of the national central banks in the eurozone countries. Therefore, the third chapter includes Lijphart’s criterion of central bank autonomy

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and, at the same time, goes beyond it, since the EU has taken over competences in many further policy areas.5 Finally, the federal order is also part of the multi-level system, encompassing the distribution of powers between the federal level (Bund) and the state level (Länder). This is the subject of Chapter 4. The second dimension of the German political system includes the structural characteristics that organise the democratic will formation and the intermediation of interests. First, Chapter 5 looks at the institutional arrangement that is of fundamental significance for representative democracy: elections and the electoral system. Following this, we focus on the three intermediary organisations that are needed for the political communication between citizens and the government. Chapter 6 deals with the political parties that form the organisational core of political will formation and decision-making. Chapter 7 elaborates on the structure and functioning of the German associations (Verbände) that intermediate sector-specific interests. In Chapter 8, we address a structural characteristic that is missing in Lijphart’s typology but is absolutely essential for the creation of the public sphere and political communication in a democracy: the media and the media system. The third dimension encompasses the federal system of government. It consists of five supreme federal bodies that are presented in four chapters. Chapter 9 explains the structure and functioning of the German Bundestag (the federal parliament), the main legislative institution in the parliamentary system. The political centre of decision-making also includes the federal government (Bundesregierung ), which forms the executive, together with the federal president (Bundespräsident ). Both institutions are therefore discussed in Chapter 10. Chapter 11 introduces the Bundesrat (federal council), which represents the interests of the Länder on the federal level and is thus considered a specific type of second chamber. Finally, the subject of Chapter 12 is the Federal Constitutional Court (Bundesverfassungsgericht ), which occupies the position of the “guardian of the constitution” (Lembcke 2007).

5 Lijphart (2012, pp. 233–234) is also aware of the fact that the Europeanisation of

tasks that were previously addressed at the national level is a challenge for his purely national model of democracy. “If I were to prepare a further update of this book in, say, 2025, the period of the internationalisation of the central banks will have lasted so long that central bank independence should be dropped as a component of the federal-unitary dimension”.

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The fourth dimension addresses the fact that democracy in Germany also takes place at the subnational levels. Chapter 13, therefore, looks at the government systems of the German states, while Chapter 14 considers politics and administration on the local level. These two levels are not included in Lijphart’s model but are vital for a comprehensive understanding of government and politics in Germany. In conclusion, Chapter 15 will summarise the main results and discuss the question as to how German democracy is resilient enough to maintain its functionality even under difficult conditions. Thus, the chapters of this book deal with the individual structural elements of the democratic system and can therefore be read and understood separately. At the same time, they are connected by a consistent theoretical framework. The outline of the chapters also follows a uniform logic. They all start with a central question that specifies the fundamental tension between the capacity for political inclusion and the capacity for action. On this basis, the chapters first discuss the legal, institutional and historical foundations of the respective structural element. Then, they explore typical patterns of political will formation and decision-making and point to relevant functional problems. Furthermore, most of the chapters also explain how the respective structural element is embedded in the multi-level system and in what ways it has been affected by Europeanisation. Each chapter ends with a conclusion that answers the question posed at the beginning and discusses related reform proposals.

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Fuchs, D. (2000). Typen und Indizes demokratischer Regime. In H.-J. Lauth, G. Pickel, & C. Welzel (Eds.), Demokratiemessung (pp. 27–48). Opladen: Westdeutscher Verlag Ganghof, S. (2005). Normative Modelle, institutionelle Typen und beobachtbare Verhaltensmuster: Ein Vorschlag zum Vergleich parlamentarischer Demokratien. Politische Vierteljahresschrift, 46(3), 406–431. https://doi.org/10. 1007/s11615-005-0278-x Grotz, F. (2013). Vergleichende Regierungslehre: institutionelle Bedingungen des Regierens im demokratischen Staat. In M. G. Schmidt, F. Wolf, & S. Wurster (Eds.), Studienbuch Politikwissenschaft (pp. 237–263). Wiesbaden: Springer VS Grotz, F., & Müller-Rommel, F. (2011). Die Regierungssysteme der mittel- und osteuropäischen EU-Staaten als Gegenstand der Vergleichenden Demokratieforschung. In F. Grotz, & F. Müller-Rommel (Eds.), Regierungssysteme in Mittel- und Osteuropa: Die neuen EU-Staaten im Vergleich (pp. 11–24). Wiesbaden: VS Hall, P. A., & Taylor, R. C. R. (1996). Political Science and the Three New Institutionalisms. Political Studies, 44(5), 936–957. https://doi.org/10.1111/j. 1467-9248.1996.tb00343.x Katzenstein, P. J. (1987). Policy and Politics in West-Germany: The Growth of a Semisovereign State. Philadelphia: Temple University Press Kleßmann, C. (1982). Die doppelte Staatsgründung: Deutsche Geschichte 1945– 1955. Göttingen: Vandenhoeck & Ruprecht Kleßmann, C. (1993). Verflechtung und Abgrenzung: Aspekte der geteilten und zusammengehörigen deutschen Nachkriegsgeschichte. Aus Politik und Zeitgeschichte, 43(B 29–30), 30–41 Klotzbach, K. (1982). Der Weg zur Staatspartei: Programmatik, praktische Politik und Organisation der deutschen Sozialdemokratie 1945–1965. Bonn: Dietz Kneip, S., & Merkel, W. (2020). Demokratische Legitimität: Ein theoretisches Konzept in empirisch-analytischer Absicht. In S. Kneip, W. Merkel, & B. Weßels (Eds.), Legitimitätsprobleme: Zur Lage der Demokratie in Deutschland (pp. 25–55). Wiesbaden: Springer VS Lehmbruch, G. (1967). Proporzdemokratie: Politisches System und politische Kultur in der Schweiz und in Österreich. Tübingen: Mohr Lehmbruch, G. (1992). Konkordanzdemokratie. In M. G. Schmidt (Ed.), Die westlichen Länder (pp. 206–211). München: C.H. Beck Lehmbruch, G. (1996). Die korporative Verhandlungsdemokratie in Westmitteleuropa. Swiss Political Science Review, 2(4), 1–24. https://doi.org/10. 1002/j.1662-6370.1996.tb00182.x Lembcke, O. (2007). Hüter der Verfassung: Eine institutionentheoretische Studie zur Autorität des Bundesverfassungsgerichts. Tübingen: Mohr Siebeck

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Lijphart, A. (2012). Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries (2nd ed.). New Haven, London: Yale University Press Lutz, B. (1989). Der kurze Traum immerwährender Prosperität. Frankfurt am Main: Campus Mannewitz, T., & Rudzio, W. (2022). Das politische System der Bundesrepublik Deutschland (11th ed.). Wiesbaden: Springer VS Marschall, S. (2018). Das politische System Deutschlands (4th ed.). Konstanz: UTB Merkel, W. (2013). Vergleich politischer Systeme: Demokratien und Autokratien. In M. G. Schmidt, F. Wolf, & S. Wurster (Eds.), Studienbuch Politikwissenschaft (pp. 207–236). Wiesbaden: Springer VS Mooser, J. (1984). Arbeiterleben in Deutschland 1900–1970. Frankfurt am Main: Suhrkamp Niclauß, K. (2015). Kanzlerdemokratie: Regierungsführung von Konrad Adenauer bis Angela Merkel. Wiesbaden: Springer VS Nohlen, D. (2015). Mehrheit/Mehrheitsprinzip. In D. Nohlen, & F. Grotz (Eds.), Kleines Lexikon der Politik (6th ed., pp. 376–378). München: C.H. Beck Nohlen, D., & Thibaut, B. (2015). Politisches System. In D. Nohlen, & F. Grotz (Eds.), Kleines Lexikon der Politik (6th ed., pp. 510–513). München: C.H. Beck Powell, G. B. (2000). Elections as Instruments of Democracy: Majoritarian and Proportional Visions. New Haven: Yale University Press Radkau, J. (2011). Die Ära der Ökologie: Eine Weltgeschichte. München: C.H. Beck Scharpf, F. W. (1970). Demokratietheorie zwischen Utopie und Anpassung. Konstanz: Universitätsverlag Konstanz Schmidt, M. G. (2002). Germany: The Grand Coalition State. In J. M. Colomer (Ed.), Comparative European Politics (pp. 57–93). London: Routledge Schmidt, M. G. (2016). Das politische System Deutschlands (3rd ed.). München: C.H. Beck Schmidt, M. G. (2019). Demokratietheorien (6th ed.). Wiesbaden: Springer VS Schönbohm, W. (1985). Die CDU wird moderne Volkspartei: Selbstverständnis, Mitglieder, Organisation und Apparat 1950-1980. Stuttgart: Klett-Cotta Schroeder, W. (Ed.) (2014). Handbuch Gewerkschaften in Deutschland (2nd ed.). Wiesbaden: Springer VS Schroeder, W., & Weßels, B. (Eds.) (2017). Handbuch Arbeitgeber- und Wirtschaftsverbände in Deutschland (2nd ed.). Wiesbaden: Springer VS Sontheimer, K., Bleek, W., & Gawrich, A. (2007). Grundzüge des politischen Systems Deutschlands. München: Piper Vatter, A. (2020). Das politische System der Schweiz (4th ed.). Baden-Baden: Nomos

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von Beyme, K. (2017). Das politische System der Bundesrepublik Deutschland: Eine Einführung (12th ed.). Wiesbaden: Springer VS Werle, R. (2007). Pfadabhängigkeit. In A. Benz, S. Lütz, U. Schimank, & G. Simonis (Eds.), Handbuch Governance (pp. 119–131). Wiesbaden: VS Winkler, H. A. (2015). Geschichte des Westens: Die Zeit der Gegenwart. München: C.H. Beck Wirsching, A. (2006). Abschied vom Provisorium. 1982–1990. Stuttgart: Deutsche Verlags-Anstalt Wolfrum, E. (2006). Die geglückte Demokratie: Geschichte der Bundesrepublik Deutschland von ihren Anfängen bis zur Gegenwart. Stuttgart: Klett-Cotta

CHAPTER 2

The Basic Law: Constitutional Foundations

The Basic Law (Grundgesetz, GG) is the constitution of the Federal Republic of Germany. Designed in 1949 as a provisional document, it is still the constitutional foundation of a “successful democracy” (Wolfrum 2006). The Basic Law specifies the goals, tasks and organisational structures of the state. It also incorporates fundamental rights that restrict the state’s authority to interfere in individual freedom and autonomy. Thus, it provides a normatively binding framework for all citizens and political office holders. A constitution significantly contributes to the functioning of a democratic system (Schuppert 1995). To do so, its provisions must have a sufficient degree of “rigidity” to render the processes of democratic will formation and decision-making predictable and to protect the rights of minorities. This is particularly important from the perspective of consensus democracy (Lijphart 2012, pp. 204–205). At the same time, the majoritarian democracy perspective demands that a constitution has to leave enough room for “flexibility” so that the government can effectively respond to societal changes and new challenges. Has the Basic Law proven to be a constitutional framework of this kind—one that promotes rigidity and flexibility at the same time? To answer this question, we will reconstruct the origins of the Basic Law on the background of the failed Weimar democracy, the inhumane © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 F. Grotz and W. Schroeder, The Political System of Germany, New Perspectives in German Political Studies, https://doi.org/10.1007/978-3-031-32480-2_2

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Nazi regime and the division of Germany in Section 2.1. In Section 2.2, we will explain the structure of the Basic Law and retrace its development. Section 2.3 will deal with its relationship to the constitutions of the German states (Länder) and European law. In Section 2.4, we will reflect on the significance of the Basic Law for democratic governance, devoting special attention to the flexibility and rigidity of the constitutional framework.

2.1 The Origins of the Basic Law: Between a Provisional Document and a Comprehensive Constitution No other German constitution has been in force as long as the Basic Law, which is now almost 75 years old. When adopted in 1949, it was understood as a provisional document, since many hoped that the division of Germany would be only temporary. Therefore, it was given the title “Basic Law” instead of “constitution”. Its origins were not only influenced by the context of the immediate aftermath of the Second World War but also by an over 150-year-long constitutional history. A constitution regulates the tasks of the state, its organisational structure and the legal relationship between citizens and the state (Schwegmann 2015, p. 692). Moreover, constitutional law takes precedence over all other forms of law and, therefore, it is at the top of the hierarchy of norms. All representatives of legislative, executive and judicial power are bound in their actions by the constitution. Due to this direct binding effect for all citizens and politicians, amendments to democratic constitutions can usually not be adopted with a simple majority in parliament but must achieve a higher (qualified) majority quorum. Modern constitutionalism emerged and evolved in England, North America and France between the sixteenth and the eighteenth century. In Germany, this development only began in the nineteenth century (Vorländer 2009). During the Napoleonic occupation, the Kingdom of Westphalia acquired the first modern constitution on German soil in 1807 (Frotscher and Pieroth 2019, p. 93). Between 1814 and 1824, various small states in Central Germany as well as the Southern German states of Bavaria, Baden, Württemberg and Hesse-Darmstadt adopted their own territorial constitutions as stipulated in Article 13 of the German Federal Act of 1815. The Frankfurt constitution of 1849 was the first attempt

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to establish a nationwide German constitution. It was drafted by a democratically elected parliament in St Paul’s Church, Frankfurt. Although this constitution failed due to the resistance of the great powers of Prussia and Austria, it had a lasting effect because of its pioneering formulation of fundamental rights (Frotscher and Pieroth 2019, pp. 164–173). Bismarck’s imperial constitution of 1871 ultimately decided the “German question” in favour of the “Lesser German Solution” without Austria. After Prussia and 21 other German states formed the North German Confederation in 1866, Bavaria, Hesse-Darmstadt and Württemberg joined the Reich in 1871 and thereby completed the national unity process. Like the Frankfurt constitution and the constitution of the North German Confederation, the Imperial constitution provided for a federal order, which now consisted of 25 states, including three city-states. In addition, it contained a rule on the conflict of laws that favoured a unified legal sphere (“Imperial law takes precedence over state law” [Art. 2 RV]), which was incorporated in a similar form into the Basic Law (Frotscher and Pieroth 2019, pp. 199–221; Chapter 4.1). After the revolution of 1918/1919, the Weimar constitution established the first nationwide democracy in Germany. The introduction of universal suffrage and parliamentary democracy meant that the new state contrasted starkly with the imperial state that had preceded it. This break with the past was also emphasised by changing the national colours from black, white and red to black, red and gold. This latter colour design was a reference to the roots of the German pro-democracy movement in Hambach Festival of 1832. However, there were also traces of the imperial system of government in the Weimar constitution. For example, the directly elected president was accorded extensive powers, as a “quasiEmperor” (Frotscher and Pieroth 2019, pp. 249–274; Chapter 10.4). The pseudo-legal Enabling Act passed by the National Socialists on 24 March 1933 replaced the separation of powers principle with the Führer principle, which marked the end of the Weimar democracy. The unconditional surrender of 7 and 8 May 1945, which Federal President Richard von Weizsäcker called Liberation Day in a ground-breaking speech in 1985 (Chapter 10.4), ended the Nazi regime once and for all. In the final phase of the Second World War, a collective sense of decline and impending collapse had already taken hold of German society (Kleßmann 1982, p. 37). But the end of the war did not mark a zero hour because the victorious Allied forces immediately took power in Germany and determined its further development in accordance with their strategic

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interests. The state, economy and society were rebuilt relatively quickly after 1945 based on historical structures and traditions. The Allied forces—the Soviet Union, the US and the UK, with the later addition of France—had already made fundamental decisions about the post-fascist system in Germany at the conferences of Tehran (November/December 1943), Yalta (February 1945) and Potsdam (July/August 1945). These decisions included the four Allies taking administrative power, the division into occupation zones and the formation of the Allied Control Council, which exercised the highest powers of government. The council’s work was based on four principles (the “4 Ds”): the denazification of German society (“re-education”), the democratisation of political life, the decentralisation of governmental and economic structures and a complete demilitarisation, including the arms industry. Accordingly, the second German democracy was constructed from the bottom up. Political parties were founded, interest groups and a free press were accredited, and local self-government was re-established (Chapter 14.1). Only later were the states founded in the different occupation zones. Decentralisation also included the break-up of the state of Prussia (Law No. 46 of the Allied Control Council of February 1947), which was widely regarded as the “origin of the German disease” (Clark 2008, p. 9) because of its considerable power and militarised politics. The beginning of the Cold War between the West under the leadership of the United States and the Eastern Bloc under the leadership of the Soviet Union led to the emergence of the Basic Law as a provisional constitution for a West German state. At first, several economic decisions paved the way for the division of Germany. On 1 January 1947, the American and British occupation zones were merged into a unified economic area (Bizone), which was joined in March 1948 by the French occupation zone except for the Saarland (Trizone). In June 1948, the D-Mark was introduced as the official currency in the Trizone, which led to the Soviet occupation zone also introducing its own currency, the Ostmark. For over two million people living in West Berlin, the currency reform had immediate consequences. The Soviet military administration blocked passenger and goods transport between the Eastern and Western sectors of the city and cut off West Berlin’s water and power supply. From 24 June 1948, West Berlin was exclusively supplied by Western Allies’ aeroplanes until the Soviet Union lifted its blockade on 12 May 1949, just a few days before the Basic Law came into effect.

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It was under these circumstances that the three Western Allies initiated the foundation of a West German state. Nevertheless, the new constitutional order was actually drafted by the German side, with the Allied forces demanding the final say. But it was not necessary to start from scratch because first drafts of a post-war constitution had already been discussed during the Second World War by various groups in the resistance and in exile (Feldkamp 2019, p. 17). After the war, position papers by political parties—for example, the principles for a German federal constitution by the Ellwanger Circle of Friends from the Christian Democratic Union/Christian Social Union (CDU/CSU) or the Nuremberg guidelines by the Social Democratic Party (SPD), both published in 1947—contributed to constitutional renewal. Furthermore, political personalities like Hermann Brill (SPD), Carlo Schmid (SPD) and Adolf Süsterhenn (CDU) had a strong influence on specific provisions of the Basic Law. The constitution-making process took place in five steps. (1) At the London Six-Power Conference on 7 June 1948, the US, the UK, France, the Netherlands, Belgium and Luxembourg agreed to merge the three Western occupation zones into one united country with a federal constitution (Feldkamp 2019, pp. 19–21). (2) On 1 July 1948, the prime ministers of the West German states received the Frankfurt documents from the Allied military governors (Feldkamp 2019, pp. 21–28). Document No. I enabled the prime ministers to convene a constitutional assembly for creating a “governmental structure of federal type”. Document No. II stipulated a review of the state borders, while Document No. III contained the basic elements of an occupation statute. (3) With the Koblenz decisions of 8–10 June 1948, the prime ministers accepted the Frankfurt documents in principle. However, they rejected the foundation of a Western state and advocated for a provisional solution. At the Niederwald Conference of 21–22 July 1948, they eventually agreed with the military governors on a procedure intended to express the provisional character of the planned constitutional order. The document was to be called the Basic Law and not the constitution; the Constitutional Assembly (Verfassunggebende Versammlung ) was changed to a Parliamentary Council (Parlamentarischer Rat ) whose members would not be elected by the people but by the state parliaments. Finally, the Basic

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Law was not to be ratified by a referendum, as originally specified by the Allies, but by the state parliaments (Feldkamp 2019, pp. 28–34). (4) An expert commission, formed by the state governments and later called the Herrenchiemsee convention, met from 10 to 13 August 1948 to elaborate on the major contents of the Basic Law. The eleven voting representatives authorised by the states and their staff were predominantly civil servants and professional politicians with administrative experience who could draw on the resources of the state administrations (Feldkamp 2019, pp. 37–38). The institutional setting adopted by the Herrenchiemsee convention included a parliamentary system with two chambers (Bundestag and Bundesrat ), the election of the federal chancellor (Bundeskanzler) by the Bundestag and a head of state (Bundespräsident ) with weak powers. Moreover, elements of direct democracy were rejected. Finally, constitutional changes directed against liberal democracy were to be prohibited. For every point of disagreement with far-reaching consequences, the Herrenchiemsee report included alternative solutions for the Parliamentary Council to decide on (Mußgnug 2003, p. 329). (5) On this basis, the Parliamentary Council drafted the Basic Law in Bonn from 1 September 1948 to 23 May 1949. Its 65 voting members, plus five advisory members from West Berlin, were elected by the state parliaments. Nevertheless, partisan interests influenced decision-making in the Parliamentary Council more than state interests (Morsey 1999, p. 49). CDU/CSU and SPD appointed 27 members each; the Free Democratic Party (FDP) appointed five; and the German Centre Party (DZP), the German Party (DP) and the Communist Party of Germany (KPD) appointed two members each. As council chairman, the then 72year-old Konrad Adenauer (CDU), who was considered a transition figure, was appointed (Bommarius 2009, p. 63). However, this position would not be the end of Adenauer’s political career but only a staging post on the path to his subsequent 14-year tenure as chancellor. The Parliamentary Council had only four female members and an average age of 55, which led to some people calling it a “convention of senior citizens” (Bommarius 2009, p. 18). Many of its members were victims or opponents of the Nazi regime, and eleven of them had been members of the Weimar

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parliament (Reichstag ) before 1933. Wilhelm Heile (DP), Paul Löbe (SPD) and Helene Weber (CDU) had even participated in the adoption of the Weimar constitution in 1919 (Bommarius 2009, p. 18). Just before midnight on 8 May 1949, and thus exactly four years after the day of unconditional surrender, the Parliamentary Council adopted the Basic Law in the third reading with 53 to 12 votes. Six members from the CSU, and all of the members from the KPD, DP and DZP voted against it. From 18 to 21 May 1949, the Basic Law was approved by all state parliaments. Only the Bavarian Landtag voted against it after deciding to recognise the Basic Law if it was ratified by at least two-thirds of the West German states. This was the case; thus, the Basic Law was proclaimed on 23 May 1949, which also marked the foundation of the Federal Republic of Germany. A few months later, on 7 October 1949, the German Democratic Republic (GDR) was founded on the territory of the Soviet occupation zone, with its own constitution. Altogether, the prime ministers of the states took great care to emphasise the provisional status of the Basic Law in order to counteract a permanent division of Germany. This provisional character was evident in the symbolic avoidance of the term “constitution” but also in a procedure without any citizen participation (indirect election of the Parliamentary Council, no referendum). Moreover, the first version of the preamble referred to the intention of the mothers and fathers of the Basic Law “to give a new order to political life [only] for a transitional period” and called on “the entire German people” to “accomplish, by free selfdetermination, the unity and freedom of Germany”. Even the final article documented the framers’ intention of temporary validity by determining that the Basic Law “shall become invalid on the day when a constitution adopted in a free decision by the German people comes into force” (Art. 146 GG old version). Moreover, the Basic Law of 1949 had a few gaps. This was partly due to the initially limited sovereignty of the Federal Republic of Germany (e.g. the lack of provisions on the armed forces) and partly due to the fact that the Parliamentary Council was unable to reach an agreement on certain issues. Therefore, it postponed a number of decisions, for example, on the distribution of specific kinds of taxation (Art. 107, para. 1 GG old version) or the territorial restructuring of the states (Art. 29 GG old version; Chapter 4.2).

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However, these provisional characteristics and gaps do not change the fact that the Basic Law as a whole has been a full constitution from the very beginning. Even its first version contained a catalogue of fundamental rights, specified the goals and structural principles of the state and defined the competencies of the political institutions at the federal level and their relationships to the other levels of the political system. Therefore, since 1949, the Basic Law has included all the essential components that characterise a democratic constitution.

2.2

Structure and Development of the Basic Law

Originally, the Basic Law was divided into eleven sections with 146 articles. Since then, the text has grown to 197 articles overall and 14 sections (as of 2022). These figures show how difficult it is to fully understand the structure and development of the German constitution. Therefore, we will present the formal architecture of the Basic Law before taking a closer look at its structural principles. Subsequently, we will examine how the Basic Law has changed since 1949. The 14 sections of the Basic Law do not convey a “useful impression of the structure of the text” (Möllers 2019, p. 39). For the following overview, we will group the sections into six parts (Table 2.1). (1) Like most other constitutions, the Basic Law starts with a solemn declaration (preamble). After reunification, it was rephrased as follows: “Conscious of their responsibility before God and man, inspired by the determination to promote world peace as an equal partner in a united Europe, the German people, in the exercise of their constituent power, have adopted this Basic Law. Germans […] have achieved the unity and freedom of Germany in free selfdetermination. This Basic Law thus applies to the entire German people” (Preamble GG, revised). This introductory passage has no immediate application in law but is of fundamental significance for the interpretation of other constitutional and legal norms. The explicit commitment to European integration (Chapter 2.3) is particularly important but so is the fact that the notion of the Basic Law as a provisional document now belongs firmly in the past. (2) The Basic Law starts with a catalogue of fundamental rights (Art. 1–19 GG). The human and civil rights listed in it are not

Source Authors’ compilation

(6) Transitional and final provisions

(5) Structures and procedures of policy-making

Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.

III. The Federal Parliament (Bundestag) IV. The Federal Council (Bundesrat) IVa. The Joint Committee V. The Federal President VI. The Federal Government VII. Federal Legislation VIII. The Execution of Federal Laws and Federal Administration VIIIa. Joint Tasks, Administrative Cooperation IX. The Judiciary X. Finance Xa. Defence XI. Transitional and Concluding provisions

38–49 GG 50–53 GG 53a GG 54–61 GG 62–69 GG 70–82 GG 83–91 GG 91a–91e GG 92–104 GG 104a–115 GG 115a–115l GG 116–146 GG

– Art. 1–19 GG Art. 20–37 GG

– I. Fundamental Rights II. The Federation and the States

(1) Preamble (2) Catalogue of Fundamental Rights (3) Foundations of the state organisation (4) Structure and competencies of the federal institutions

Articles

Sections

Structure of the Basic Law

Parts

Table 2.1

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just “declamations, declarations or directives” (Carlo Schmid in Deutscher Bundestag and Bundesarchiv 1996, p. 37) but are immediately binding for all those exercising legislative, executive and judiciary power (Art. 1, para. 3 GG). The prominent position of individual rights of defence against the state is accentuated by the fact that this section is placed at the beginning of the Basic Law, unlike in all predecessors in German constitutional history (Mußgnug 2003, p. 334). The rejection of the Nazi regime is nowhere more apparent than in Article 1, paragraph 1 of the Basic Law, which expresses the fundamental idea of the entire constitution: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority”. Other “innovations of fundamental rights” (Hornung 2015) include the right of conscientious objection to military service (Art. 4, para. 3 GG), the comprehensive prohibition of discrimination (Art. 3, para. 3 GG) or the right to political asylum (Art. 16a GG). Further fundamental rights like the inviolability of the home (Art 13, para. 1 GG) are already familiar from the constitution of St Paul’s Church and the Weimar constitution (WRV) respectively. The catalogue of fundamental rights of the Basic Law also reflects the diverse influences of societal interest groups. The trade unions, for example, were unable to assert their ideas about a fair economic and social order. This is why fundamental social rights like the protection of labour (Art. 157 WRV) found no place in the Basic Law. In contrast, the Christian churches managed to secure the adoption of the Weimar church laws (Art. 136–141 WRV), ensure the acceptance of denominational schools with religious instruction (Art. 7 GG) and enshrine the right of parents to care for their children (Art. 6 GG). The equal treatment of men and women (Art. 3, para. 2 GG), which was demanded by Elisabeth Selbert in the Parliamentary Council and eventually implemented, was by no means a foregone conclusion but needed massive societal support through letters and protests (BMFSFJ 2019, p. 5). (3) The next part of the Basic Law consists of the section “The Federation and the States” (Der Bund und die Länder; Art. 20–37 GG). It contains basic regulations for the state organisation that are of fundamental significance for both domestic and international politics. Starting with the structural principles explained below (Art. 20 GG), we find a few state objectives that are not directly enforceable

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through legal action, such as the protection of natural resources (Art. 20a GG); this contrasts with the status of fundamental rights. In addition, the political parties are given constitutional rank and a right to participate in political will formation (Art. 21 GG; Chapter 6.1). Besides issues concerning the representation of the nation (federal capital and flag in Art. 22 GG), the basic rules of the relationship between the federal level and the state level are enshrined here (Chapter 4.1). These particularly include the sovereign powers of the Länder (Art. 30 GG), the precedence of federal law over state law (Art. 31 GG), the primary authority of the federal government regarding international relations (Art. 32 GG), the (optional) revision of the state territories (Art. 29 GG), the mutual obligation of legal and administrative assistance (Art. 35 GG) and the obligation of the states to implement federal law (Art. 37 GG). Fundamental issues on local self-government are also regulated here (Art. 28 GG; Chapter 14.1). Moreover, this part contains some general provisions on Germany’s international relations, such as the prohibition of wars of aggression, which is an explicit lesson from the Second World War (Art. 26 GG) and the direct applicability of international law as federal legislation (Art. 25 GG), which was already established in Article 4 of the Weimar constitution. Finally, Article 24, paragraph 1 of the Basic Law opens up the possibility of transferring sovereignty to international organisations by federal law. This passage was the constitutional precondition for Germany’s integration into the European Communities until the revised Article 23 of the Basic Law specified the role of the Federal Republic of Germany and its constitutional bodies in the European Union (Chapters 3.1 and 9.3). (4) Part Four of the Basic Law regulates the structure and competencies of the federal institutions. The German parliament (Deutscher Bundestag ) occupies the highest position. It is the only federal institution that is directly elected by the citizens (Art. 38–49 GG; Chapter 9). This section of the Basic Law contains various provisions relating to members of parliament and the internal organisation of the Bundestag as well as the principles of universal suffrage for its election in Article 38 while the electoral system and the organisation of federal elections are regulated by ordinary law (Chapter 5.1). The Federal Council (Bundesrat ) follows

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next, composed of delegates of the state governments and representing their interests in federal legislation and EU affairs (Art. 50–53 GG; Chapter 11). The “Joint Committee” section was inserted between the sections of the Bundestag and Bundesrat as part of the National Emergencies Act in 1968. It consists of only one article. The following section deals with the federal president (Bundespräsident ) as the representative head of state with weak powers, elected by the Federal Assembly (Bundesversammlung ), which is composed of the Bundestag members and an equal number of representatives of the federal parliaments (Art. 54– 61 GG; Chapter 10.4). Finally, we have the federal government (Bundesregierung ), which is the “efficient” part of the executive, consisting of the chancellor and the federal ministers (Art. 62–69 GG). The focus here is on the chancellor, who is the only member of government elected by parliament and can only be recalled if a successor is elected at the same time (constructive vote of no confidence; Chapters 10.1–10.3). In contrast, the Federal Constitutional Court (Bundesverfassungsgericht; FCC for short) has no section of its own in the Basic Law. Its competencies and composition are regulated in the section on the judiciary (Art. 92–94 GG; see below) because its status among the federal institutions was quite unclear at the beginning. Although the FCC quickly gained the role as the ultimate interpreting instance of the Basic Law (Leibholz 1957), it still plays no prominent part in the text (Chapter 12). (5) The penultimate part of the Basic Law concerns the structures and procedures of policy-making. Most of the respective articles relate to the distribution of competencies between the federation and the Länder (Chapter 4.1). For example, the section on legislation prescribes in detail which policy areas are regulated at the federal level and how the Bundesrat must be involved (Art. 70–82 GG). The procedure for constitutional amendment is also enshrined there (Art. 79 GG; see below). The section “Execution of Federal Laws” defines the basic procedures of policy implementation by federal and state administrations (Art. 83–91 GG). The section “Joint Tasks” (Gemeinschaftsaufgaben), inserted in 1970, specifies policy areas where the federal government contributes substantially to the fulfilment of state tasks (Art. 91a–91e GG). The section “Finance” (Art. 104a–115 GG) includes the essential

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provisions of tax legislation as well as the federal fiscal equalisation mechanism. The section on “The Judiciary” contains basic rules for national and state jurisdiction (Art. 92–104 GG). The section “State of Defence”, inserted later as part of the emergency laws, has no logical place in the systematic structure of the text (Art. 115a–115l GG). Fortunately, its provisions have never had to be applied. (6) The final part of the Basic Law consists of the transitional and concluding provisions (Art. 116–146 GG). Based on the number of articles, this is the most extensive part of the constitution. It contains some provisions that were significant when the Basic Law was written but are no longer relevant, such as the funding of payments imposed by WWII (Art. 120 GG). In addition, there are various passages relating to the norms that the Federal Republic of Germany adopted from its predecessors or the time before the Bundestag first convened (so-called pre-constitutional law; Art. 123–125 GG). The final article, already mentioned above, makes provision for a replacement of the Basic Law by a new constitution (Art. 146 GG). The provisions of the Basic Law reflect the German constitutional history in a differentiated way. Unlike constitutional conventions in other post-authoritarian states, the Parliamentary Council was not guided by an external model such as the US Constitution but drew, in many ways, on the national legal tradition (Nolte 2020, p. 13). For instance, some of the fundamental rights and basic features of the federal order were already enshrined in the Frankfurt constitution of 1849. Moreover, pre-constitutional law conforming to the Basic Law was adopted (Art. 123–125 GG), which includes the German Civil Code (Bürgerliches Gesetzbuch) and other previous legislation. For this reason, the Basic Law is characterised by a “pronounced path-dependency” (Nolte 2020, p. 32). At the same time, it contains numerous constitutional innovations reflecting two core lessons from the immediate past. The first implication was the “unequivocal rejection of the years of National Socialist dictatorship” (Dreier and Wittreck 2019, p. XV), which is especially evident in the part on fundamental rights, primarily in the provision on the inviolability of human dignity (Art. 1, para. 1 GG). The second lesson motivating constitutional innovations resulted from the experience that the Weimar constitution and its inability to prevent the collapse of parliamentary

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democracy and the pseudo-legal establishment of a totalitarian regime. Therefore, the constitutional framework of the German political system is informed by certain “lessons of Weimar” (Frotscher and Pieroth 2019, p. 369), as will become clear in the following. The Parliamentary Council inserted a number of provisions to prevent the erosion of the democratic constitutional order by political majorities. First, amendments to the Basic Law must be passed with two-thirds majorities in the Bundestag and Bundesrat (Art. 79, para. 2 GG), whereas the Weimar constitution could be changed by a two-thirds majority in the Reichstag alone (Art. 76 WRV). Second, constitutional changes are only permitted in the form of explicit amendments to the Basic Law, which is superior to ordinary legislation in the hierarchy of norms (Art. 79, para. 1 GG; Art. 20, para. 3 GG). In the Weimar Republic, by contrast, constitutional regulations could be codified in ordinary law. Third, changes to the “principles laid down in article 1 and 20 of the Basic Law” are not permitted (Art. 79 para 3 GG). Hence, the Basic Law has an unchangeable “constitutional core” (Grimm 2009, p. 604), which is also called the “fundamental norm of the state” (Staatsfundamentalnorm; Gröpl et al. 2020, p. 340). This is expressed primarily and concisely in the first three paragraphs of Article 20 of the Basic Law: (1) The Federal Republic of Germany is a democratic and social federal state. (2) All state authority is derived from the people. It shall be exercised by the people through elections and other votes and through specific legislative, executive and judicial bodies. (3) The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice”.

In these few words, the five structural principles of the constitutional order protected by the “eternity clause” (Ewigkeitsklausel ) of Article 79, paragraph 3 of the Basic Law are listed, namely democracy, republic, social state, rule of law and federalism. These principles were also enshrined in the Weimar constitution (Art. 1, 2, 102–108, 119–134 and 151–165 WRV) but they were defined in slightly different ways (Dreier 2019; Table 2.2). The main difference between the Weimar constitution and the Basic Law lies in the specification of the democracy principle, according to which all “state authority is derived from the people” (Art. 1, para. 2

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Table 2.2 Structural principles of the Weimar constitution and the Basic Law Structural principles

Weimar constitution

Basic Law

Democracy

Representative democracy with elements of direct democracy

Representative democracy without elements of direct democracy Parliamentary system Head of state with weak powers Chancellor democracy Politcal parties with constitutional status Constitutional provisions for the protection of democracy Rejection of monarchy (Head of state elected for a limited term) Cooperative federalism Bundesrat as federal chamber Strong protection and effectiveness of fundamental rights Separation of powers, legality of administrative action, fundamental rights of justice Constitutional review by federal Constitutional Court (with constitutional complaint) Non-specified principle of the social state Transfer of sovereignty to supranational institutions by ordinary legislation

Semi-presidential system Head of state with strong powers

Republic

Federalism Rule of law

Chancellor without strong powers Political parties without constitutional status No constitutional provisions for the protection of democracy Rejection of monarchy (Head of state elected for a limited term) Cooperative federalism Reichsrat as federal chamber Fundamental rights with legal effect

Separation of powers, legality of administrative action, fundamental rights of justice Constitutional review by State Court (without constitutional complaint) Social state Open state

Fundamental social rights as normative objectives –

Source Authors’ compilation based on Dreier (2019) and Haug (2014, p. 76)

WRV; Art. 20, para. 2 GG). Although the Basic Law mentions “elections and votes”, democratic legitimation by the people is concentrated on the election of the Bundestag (Art. 38, para. 1 GG; Dreier and Wittreck 2019, p. XXIII). Direct democracy is only to be used in exceptional cases, for instance, when new state territories are to be drawn (Art. 29, para. 2 GG)—by contrast, the Weimar constitution allowed for popular initiatives and referenda on a broad range of policy issues (Art. 73–76 WRV). A major lesson the mothers and fathers of the Basic Law learned

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from the Weimar experience relates to the head of state. In the semipresidential system of the Weimar Republic, the president was not only directly elected but also had extensive political powers, including the power to nominate and dismiss the chancellor (Art. 53 WRV) as well as the right to issue emergency decrees in crises (Art. 48 WRV). Since the last Weimar President Paul von Hindenburg had used his competencies in a manner detrimental to democracy, the Parliamentary Council envisaged the federal president as a weak head of state, elected by the Bundestag and predominantly performing representative tasks (Chapter 10.4). Here, the Basic Law follows the ideal of a pure parliamentary system by tasking the Bundestag with government formation; the federal government depends on the confidence of the Bundestag but is independent of the head of state (Chapter 9.1). At the same time, the position of the head of government (Bundeskanzler) was strengthened, both vis-à-vis parliament (constructive vote of no confidence; Art. 67 GG) and within the cabinet (guideline competency, Art. 65 GG). Therefore, the Federal Republic of Germany is sometimes called a “chancellor democracy” (Niclauß 2015; Chapter 10.1). Moreover, the Basic Law emphasises the crucial role of the parties in the process of political will formation (Art. 21 GG; Chapter 6.1), while they were not specifically mentioned in the Weimar constitution. One of the most important lessons from Weimar is that the Basic Law considers itself as the foundation for a “fortified” or “militant democracy” (Papier and Durner 2003; Thiel 2003). It makes provisions for defending democracy against persons or organisations who wish to do away with the liberal democratic order. The Federal Constitutional Court (FCC) can declare the forfeiture of various fundamental rights if they are used to attack the liberal democratic order (Art. 18 GG). Moreover, extremist organisations (Art. 9, para. 2 GG) and political parties that are hostile to the constitution (Art. 21, para. 2 GG) can be banned, the latter only by the FCC. The Basic Law also mentions specific federal and state authorities responsible for the protection of the constitution (Art. 73 and Art. 87 GG). Finally, every citizen has an individual right of resistance “against any person seeking to abolish this constitutional order” (Art. 20, para. 4 GG). Unlike the principle of democracy, the other fundamental norms of the Basic Law are less strongly influenced by the negative experiences of the Weimar period. The principle of the republic, which mandates that the

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head of state is not a monarch who rules for life but a term-limited president, exists both in the Basic Law and in the Weimar constitution. The institutional design of German federalism is also characterised by continuity. Both constitutions assign the major areas of legislative competence to the federal level; the states are responsible for implementing federal laws (cooperative federalism; Chapter 4.1). Furthermore, the respective federal chambers, the Reichsrat and Bundesrat, resemble each other with regard to their composition. They do not consist of directly elected members but of members of the state governments. Only the veto powers of the Bundesrat are stronger than those of the Reichsrat (Chapter 11.1). The term Rechtsstaat (rule of law) is only mentioned in Article 28, paragraph 1 of the Basic Law. However, its essential characteristics are also named in Article 20 of the Basic Law, i.e. the separation of powers and the fact that all state powers are bound by the rule of law. Likewise, Article 1, paragraph 1 of the Basic Law codifies that all state powers are bound by fundamental rights. Further features of the Rechtsstaat include the guarantee of legal protection (Art. 19 para. 4 GG), the independence of the judiciary (Art. 97 GG) and certain rights in court proceedings (fundamental rights of justice; Art. 101–104 GG). In the Weimar constitution, these rights were not specified as explicitly, but they also formed an integral part of the constitutional framework and had an “immediate, actual legal effect” (Dreier 2019, p. 23). Moreover, the Weimar Republic also had an authority that exercised constitutional review in the form of the State Court. However, unlike the Basic Law, there was no provision for constitutional complaints, which enable citizens to take a case to the Federal Constitutional Court if they feel that their fundamental rights have been violated (Dreier 2019, p. 24; Chapter 12.1). The social state is the fifth and final principle of the fundamental norms. However, it is not further defined and is only mentioned once elsewhere in the Basic Law (Art. 28 GG). Its specification was hence left to ordinary legislation and constitutional review. The Weimar constitution included a few fundamental social rights, but they were not enforceable in law and therefore only had the status of programmatic objectives (Hartwich 1977, p. 21). Although not part of the fundamental norm, a sixth structural principle of the Basic Law should be mentioned here, the “open state” (Schmidt 2016, p. 31). It manifests in Article 24, paragraph 1 of the Basic Law, which states that “the Federation may, by a law, transfer sovereign powers

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to international organisations”. This explicit openness towards supranational integration was not just “an absolute novelty in the history of German constitutions” (Sturm and Pehle 2012, p. 43) but also unique by the international standards of the time (Giegerich 2003, pp. 1188–1198). The open state was a conscious decision by the Parliamentary Council, which, by an overwhelming majority, felt that integration into international and European institutions would “open up the best chance for a speedy resurgence” for defeated Germany (Bermanseder 1998, p. 202). This principle gave the federal government a powerfully effective “lever of integration” (Ipsen 1972, p. 58) to transfer sovereign rights by a simple majority in the Bundestag. Therefore, the government could participate with relative flexibility in supranational projects such as the European Communities (Chapter 3.1). At the same time, this regulation is in latent tension with the general rigidity of the Basic Law, as any amendment of the constitutional order requires two-thirds majorities in the Bundestag and Bundesrat. As European integration progressed, Article 24, paragraph 1 of the Basic Law was therefore complemented by a new “EU article” (Art. 23 GG; Chapter 2.3). In light of the Weimar experience, the Parliamentary Council made the defence of constitutional democracy its special mission and, hence, included a number of rigid rules into the Basic Law. But how “robust” is the protection that the Basic Law could provide against a serious attack on democracy (Steinbeis 2019)? In the history of the Federal Republic, the democratic state has been challenged a few times by political parties of the extreme right and the extreme left (SRP, KPD, NPD) as well as by terrorist organisations like the Red Army Faction (RAF) and the National Socialist Underground (NSU). Nevertheless, it was able to cope with these challenges on the foundation of the Basic Law. However, if we look at other countries, like Poland or Hungary, which took the Basic Law, in part, as a guide for their own constitutions, we can see that democratically elected majorities may misuse their political power within a solid constitutional framework and undermine the principles of democracy and rule of law (Steinbeis 2019, p. 7). So it might be worth critically examining whether certain norms in ordinary law, such as the electoral system for the Bundestag or the selection system for the judges of the FCC, should be codified in the Basic Law in order to raise the barriers against potential threats to democracy (Steinbeis 2019, p. 9). But even the best possible constitutional rules cannot safeguard the democratic order if the vast majority of politicians and citizens do not defend it.

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So how has the Basic Law developed since 1949? Has the development been largely consistent with its original design or have there been substantial changes? We will answer these questions by differentiating between two forms of constitutional change (Jellinek 1906, p. 3). On the one hand, formal amendments to the Basic Law according to Article 79 indicate “explicit constitutional change”. On the other hand, there is “implicit constitutional change”; that is, the meaning of constitutional regulations may change although the text of the constitution remains the same. For instance, some provisions may be interpreted differently by parliament or government in legislative practice or be re-interpreted by the Constitutional Court (Hönnige et al. 2011, p. 11). An important condition that affects the extent of explicit constitutional change is the design of the amendment procedure. As stated above, changes in the Basic Law require two-thirds majorities in the Bundestag and Bundesrat, which is a much higher quorum than required for ordinary legislation (Art. 79, para. 3 GG). Compared to other established democracies, this barrier to constitutional change is somewhere in the upper middle range (Lijphart 2012, p. 208): The British House of Commons, for example, can change constitutional regulations with a simple majority, while amendments to the US constitution need the approval of three quarters of all state parliaments in addition to two-thirds majorities in both chambers of the federal parliament. In spite of this barrier, changes in the Basic Law are not uncommon. Between 1949 and 2022 there were 67 constitutional amendment acts altogether. Many of these acts changed several articles at the same time (Dreier and Wittreck 2019, p. 9). Hence, the Basic Law is one of the more frequently amended constitutions in international comparison (Lorenz 2008). However, the changes have been distributed very unevenly within the Basic Law (Busch 2006, p. 48). Some articles have been amended several times, while around half of the original 146 articles have remained unchanged. The sections on the distribution of legislative powers and fiscal federalism have been changed the most, whereas those on the federal president and the federal government have only been slightly modified. In the first two decades of the Basic Law, there were two “retrospective” changes to the constitution that were not yet implemented in 1948/ 1949 because of Germany’s status as an occupied country. In 1954/1956, the so-called defence constitution (Wehrverfassung ) was created, which formed the constitutional framework for the foundation of the Federal Armed Forces (Bundeswehr) and the simultaneous accession to NATO on

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6 May 1955 (Art. 12a, 17a, 45b, 87a and 87b GG). Because large parts of the population were sceptical of rearmament, this decision was accompanied by major political protest (von Bredow 2008, pp. 87–91). The so-called emergency constitution (Notstandsverfassung ), introduced in 1968 under the first grand coalition between CDU/CSU and SPD, was similarly controversial. The respective articles codify a “State of Tension” (Art. 80a GG) and a “State of Defence” (Art. 115a to 115l GG). In addition, this period saw the creation of a new constitutional body, the Joint Committee, which would take over the tasks of the Bundestag and Bundesrat in such a state of defence (Art. 53a and 115e GG). This reform of the Basic Law was also preceded by major domestic political frictions, which intensified protest by the so-called “extra-parliamentary opposition” (Rolke 1987, pp. 195–241). It remains to be seen whether the emergency constitution could in fact keep the system of government functioning if it came to an actual emergency scenario. One might also argue that it is “the expression of a certain legalistic perfectionism seeking to regulate situations that are very difficult to regulate” (Möllers 2019, pp. 76–77). The reunification of Germany gave rise to a “constitutional moment” (Ackerman 1999) that seemed to provide an extraordinary opportunity for a fundamental change of the constitutional order. At the beginning of the unification process, the Basic Law became the subject of intensive public discussion (Stein 2020). In particular, a heated debate arose as to whether a completely new constitution for the unified Germany according to Article 146 of the Basic Law should be drafted or whether unification with the GDR should be implemented according to Article 23, which provided for the accession of “other parts of Germany” to the state of the Basic Law. Due to the dynamic development towards swift unification (“We are one people”), the decision was made quite early to choose the second option, which also meant that there would neither be a constitutional assembly nor a new constitution adopted by referendum. However, Article 5 of the unification treaty of 31 August 1990 did recommend that future amendments be made to the Basic Law. Bundestag and Bundesrat complied with this at the end of 1991, when the Joint Constitutional Committee (Gemeinsame Verfassungskommission; GVK) was established and discussed the need for constitutional amendments triggered by unification. The final report by the GVK, submitted in 1993, contained numerous proposals for selective amendments to the Basic Law, but only very few of them were implemented (Batt 2003, pp. 187–255). These

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included minor modifications in the federal order of competencies as well as a new version of Article 23, which was changed from the article about “accession” to the article about “Europe” (Chapter 2.3). Thus, the connection of this constitutional reform “to the trigger moment of German reunification […] was barely visible in the end” (Busch 2006, p. 40). Apparently, the Basic Law, which had originated as a provisional document, provided a sufficiently flexible framework for the accession of the former GDR with around 17 million East German citizens and five new states. At the same time, a feeling remained that this rather technical mode of “quiet accession” left a legitimacy gap that affected the acceptance of the political system in East Germany (Stein 2020). The most frequent and most extensive amendments to the Basic Law concerned the distribution of competencies between the federal and state levels. Starting as early as the 1950s, continuous reforms of the federal order took place, which have become even more frequent in the recent past (2006, 2009 and 2019). For some observers, these constitutional reforms caused a certain amount of discomfort, since the constitution “should be the foundation of the political common good” and changes in the constitution should be “a rare exception rather than an everyday routine” (Dreier and Wittreck 2019, p. XXVI). Despite the numerous changes to the Basic Law in this area, the structure of cooperative federalism has remained almost unchanged (Chapter 4.2). How “rigid or flexible constitutional law really is depends significantly on its practical application” (Schuppert 1995, p. 88). Hence, a comprehensive assessment of the Basic Law has to include the implicit constitutional change as well. In this regard, the rulings of the Federal Constitutional Court are of outstanding significance, since they provide the authoritative interpretation of constitutional provisions. The FCC’s decisions do not happen in a “clinical environment” but are connected in many ways with the norms and values in politics and society, which change over time. One example of such a change that affected the FCC’s interpretation of Basic Law refers to the “Protection of Marriage” (Art. 6, para. 1 GG). In 1957, the Court stated that homosexuality was immoral in principle, which meant that the legal provisions for punishing sexual practices between men (§ 175 StGB) were in conformity with the constitution (BVerfGE 6, 389). Today, “marriage for all” is broadly accepted in German society and also reflected in the more recent rulings by the FCC on adoption law (BVerfGE 133, 59) or on the legislation for spousal

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income splitting for taxation purposes for same-sex life partners (BVerfGE 133, 377). On these and many other issues, the FCC has changed the normative understanding of the relevant passages in the Basic Law (Chapter 12.2). The exact extent of this implicit constitutional change is difficult to quantify. Nevertheless, it remains crucial for the functioning of German democracy that the interpretation of the Basic Law by the FCC is sufficiently clear and widely accepted in politics and society. This is the only way to create the predictability and reliability that characterise a rigid constitutional framework promoting political stability. At the same time, the constitutional judges must be careful in their rulings to provide enough flexibility to the democratically elected representatives in parliament and government to shape policies in accordance with their electoral pledges. So far, the FCC seems to have been successful in this balancing act, in spite of all the criticism of its rulings (Chapter 12.4).

2.3

The Constitutional Order in the Multi-Level System

The constitutional framework of the German political system is determined substantially, but not exclusively, by the Basic Law. There are also constitutional regulations on the subnational level in the constitutions of the German states as well as on the supranational level in EU law. Both exist in a complex interrelation with the Basic Law and affect democratic policy-making in the multi-level system (Hönnige et al. 2011, p. 13). As mentioned in Section 2.1, democratic systems of government were established in the German Länder during the Allied occupation. The states located in the American Zone gave themselves their own constitutions between 1946 and 1947. They were drafted by constituent assemblies, approved by the occupying forces and, in most cases, ratified by referendum (Reutter 2008, p. 46). In 1947, the states in the French Zone followed by establishing their own constitutions even before the Basic Law came into force. These two groups of Länder included Württemberg-Baden, Hesse, Bavaria, Bremen, Rhineland-Palatinate, Baden, Württemberg-Hohenzollern and Saarland, which was taken out of the French Zone as a formally autonomous state in 1947 and only joined the Federal Republic of Germany in 1957. Besides specifying the organisation of the state, these early state constitutions also

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included quite extensive provisions for fundamental rights and state objectives. In contrast, the states in the British Zone—Schleswig-Holstein, North Rhine-Westphalia, Lower Saxony and Hamburg—as well as West Berlin, which had a special status—only established their constitutions after the foundation of the Federal Republic of Germany. Therefore, these constitutions were strongly influenced by the spirit of the Basic Law: they were also understood to be provisional, they were not ratified through referenda (with the exception of the North Rhine-Westphalian constitution) and they contained very few provisions for fundamental rights, if any at all, to complement the catalogue of fundamental rights of Article 1 to 19 of the Basic Law (with the exception of the West Berlin constitution). The constitution of Baden-Württemberg, which merged from Baden, Württemberg-Baden and Württemberg-Hohenzollern in 1953, also belongs to this group. After reunification, the five East German states passed their own constitutions between 1992 and 1994. They were ratified by referenda in Brandenburg, Thuringia and Mecklenburg–Western Pomerania, while Saxony and Saxony-Anhalt decided against ratification by the citizens. Finally, reunited Berlin gave itself a new constitution in 1995. The Federal Constitutional Court already stated in one of its first decisions in 1951 that the states are invested with their “own, although limited, sovereignty which is not derived from the federation but recognized by it” and are therefore permitted to regulate their own internal order (BVerfGE 1, 14, 34). Nevertheless, the state constitutions only exist in the “shadow of the Basic Law” (Möstl 2005). Although Article 70 of the Basic Law cedes all areas of legislation not explicitly reserved for the federal level to the state level, Articles 72–74 of the Basic Law assign the bulk of legislative competencies to the federal level. Consequently, the states only retain a few areas of autonomous legislation, in particular in the fields of education and culture, policing, public administration and media (Chapter 4.1). At the same time, the Basic Law leaves no doubt about who is in charge: “Federal law shall take precedence over state law” (Art. 31 GG). This so-called collision norm also applies to constitutional rules. For example, Article 27 of the Hessian constitution originally incorporated a provision on capital punishment “for particularly severe crimes”. However, Article 102 of the Basic Law declares capital punishment as “abolished”. Hence, this provision of the Hessian constitution had been meaningless since 1949, long before it was formally removed from the constitution in 2018.

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Moreover, the constitutional autonomy of the Länder is limited by the principle of homogeneity according to which their order must “conform to the principles of a republican, democratic and social state governed by the rule of law within the meaning of this Basic Law” (Art. 28, para. 1 GG). While the principles of republic and rule of law do not allow many opportunities for individual configuration, the state constitutions differ notably when it comes to other structural principles (Reutter 2008, p. 42). The social state, for example, is defined differently in the catalogues of fundamental rights. Hesse, where the SPD had the majority in the Constitutional Advisory Assembly at the time, has particularly extensive provisions. These include the right to work (Art. 28 HV), the right to strike (Art. 29 HV), the eight-hour working day as a legal standard (Art. 31 HV), a minimum entitlement to paid holidays (Art. 34 HV), the principle of social insurance (Art. 35 HV) and worker participation in companies (Art. 37 HV). Art. 41 HV, which enables the socialisation of key industries, is particularly remarkable. Fundamental social rights are less extensively and precisely defined in the constitutions of Bavaria and Baden-Württemberg, where the Christian Democrats were dominant. Instead, their preambles contain a reference to God, and Christian values are specifically emphasised in the sections about marriage and family as well as school and education. Another respect in which the constitutional regulations on the state level deviate somewhat from the Basic Law is in the institutional design of democracy. For example, all state constitutions include provisions for popular initiatives and referenda. There are also specific regulations in some constitutions regarding the voting age, elections, dismissal of the state government and the composition of the state constitutional court (Chapter 13.2). Yet, given the potential institutional variety available to the states, their systems of government are relatively homogenous. They have also frequently responded to new amendments in the Basic Law by incorporating the relevant changes (Pestalozza 2014, pp. XXXVII– XLVII). For instance, the “debt brake” enshrined in Art. 109 and 115 GG in 2009 (Chapter 4.1) has been codified in twelve of the sixteen state constitutions by now. Finally, the state constitutions vary with regard to their formal rigidity. Particularly high barriers exist in Bavaria and Hesse, where constitutional changes require a two-thirds majority in the state parliament followed by a popular referendum (Reutter 2020, p. 232). In Berlin and in the Saarland, however, constitutional changes can be adopted by parliament

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with only a qualified majority, while, in all other states, they can also be triggered through popular initiatives. The actual extent of constitutional change also varies considerably from state to state. The constitutions of Lower Saxony (1993) and Berlin (1995) were completely overhauled, others were extensively reformed several times (e.g. Schleswig-Holstein in 1990 and 2014) and others only experienced minor changes (e.g. Saxony; Reutter 2020, p. 225). So far, the state constitutions have proved to provide a robust framework that enables state politics to respond flexibly to changing environments. Whether this will continue in the future, considering the increasing fragmentation and segmentation of the party system in several states, remains to be seen. While the Basic Law enjoys a clear precedence over the state constitutions, its relationship with international law is less clearly defined (Streinz 2019). The Basic Law presents itself as an “open” constitution, with Article 24, paragraph 1 functioning as an “integration lever”. Moreover, the regulations of international law qualify as an “integral part of federal law” (Art. 25 GG). However, provisions in international law have the status of ordinary federal legislation (Art. 59, para. 2 GG). This means that they do not rank higher than the provisions of the Basic Law but will be considered merely as supplementary legislation, such as, for example, the European Convention on Human Rights (ECHR) (Streinz 2011, p. 132). Furthermore, the extradition of German citizens to an international court can only take place “provided that the rule of law is observed” (Art. 16, para. 2 GG) and is therefore subject to the supervisory authority of the Federal Constitutional Court. Regarding the law of the European Union, the situation is completely different, since it establishes supranational regulations that apply consistently and immediately to all member states (Chapter 3.1). Thus, both primary EU legislation, which forms the “constitutional framework” codified in the European Treaties, as well as its secondary legislation, which encompasses “ordinary” norms (directives, regulations and decisions), in principle take precedence over federal law as well as state law. This did not pose a big problem for the constitutional order of the Basic Law at the beginning of European integration, since the European Coal and Steel Community (ECSC), founded in 1951 by Germany and five other countries, was limited to the steel and coal industry. Article 24, paragraph 1 of the Basic Law enabled the federal government to participate flexibly in this supranational organisation without any change in the Basic Law (Wollenschläger 2015, p. 569). The next steps in European integration,

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the Treaties of Rome (1957) and the Single European Act (1985), also transferred national competencies to the supranational level via the integration lever. Thus, European integration remained “a kind of subsidiary legal order” whose regulations “did not substantially touch the content of the Basic Law apart from the loss of certain competencies” (Möllers 2019, p. 90). The Treaty of Maastricht (1992), which founded the European Union and provided for the transition to a common currency (euro), marked a watershed in this development. On the one hand, the extensive supranationalisation of formerly national competencies required amendments to the Basic Law (Streinz 2011, pp. 137–139). These changes included voting rights for EU citizens at local elections (Art. 28, para. 1 GG; Chapter 5.1) as well as the transfer of monetary competencies to the European Central Bank (Art. 88 GG). Moreover, the revised version of Article 23 of the Basic Law regulated the participation of the Federal Republic of Germany at the EU level precisely. Since then, the same provisions that apply to other constitutional changes have applied to the transfer of sovereign rights to the EU: two-thirds majorities in the Bundestag and Bundesrat, precluding any changes in the fundamental principles of the state as codified in Articles 1 and 20 of the Basic Law (Art. 23, para. 1 GG). In addition, Bundestag and Bundesrat each received specific participation rights in EU policy-making (Art. 23, para. 2–6 GG; Chapters 9.3 and 11.3). For this purpose, the Bundestag must establish its own EU committee (Art. 45 GG), while the Bundesrat may form a Chamber of European Affairs (Art. 52, para. 3a GG). Later, there were additional amendments to the Basic Law following European legal requirements. Since 2000, women soldiers in the German military have been permitted to perform “armed combat duties” because the European Court of Justice (ECJ) deemed the previous prohibition under Article 12a, paragraph 4 of the Basic Law a violation of the equal treatment of men and women in the workplace mandated in European law (Streinz 2011, p. 140). In view of the European Arrest Warrant (EAW) originating in the Treaty of Amsterdam, the Basic Law now facilitates the extradition of German citizens to other EU countries (Art. 16, para. 2 GG). In response to the budgetary provisions of the European Monetary Union, a “debt brake” and a system of “burden sharing” between the federation and the states regarding potential EU fines were enshrined in the Basic Law in 2009 (Art. 109 GG; Chapter 4.1). Finally,

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the EU-related competencies of the Bundestag and Bundesrat were modified in view of the Treaty of Lisbon in 2009 (Streinz 2011, pp. 144–145; Chapters 9.3 and 11.3). Altogether, European integration has led to some explicit changes in the Basic Law. In contrast, the implicit constitutional change caused by EU law has not only been more substantial but has also been subject to heated discussions. For example, some fundamental rights, such as occupational freedom (Art. 12 GG), now also apply to EU citizens without this being explicitly mentioned in the Basic Law. Moreover, fundamental rights need to be interpreted by German courts in accordance with European law. The European Charter of Fundamental Rights, included in the EU’s primary law since 2009, is a case in point. Finally, since 2010, the governments of EU member states and the European Central Bank have provided substantial funds to overcome the euro crisis without an explicit mandate in primary law, although this will considerably restrict the member states’ budgetary scope in the medium and long term. This raises the question of how far these decisions, taken on the EU level, impose excessive limitations on the policy-making competencies of the national parliaments and thereby violate the principle of democracy protected by Article 20, paragraph 1 of the Basic Law. As a result, the Federal Constitutional Court was confronted with numerous lawsuits against the European aid programmes. As in its earlier decisions on EU affairs, the FCC tried to find a middle ground between an integration-friendly position and the preservation of the democratic constitutional order, which is ultimately based on the idea of the sovereignty of the nation-state (Chapter 12.3). As Europeanisation proceeds, it is becoming increasingly difficult to maintain harmony between the “domestic” rigidity of the Basic Law and its equally desired flexibility regarding European integration.

2.4

Conclusion: Flexible or Rigid Constitution?

Even though the initiative for the Basic Law came from the Allied occupation forces, it is ultimately the work of German constitutional experts and politicians. The Basic Law received a great deal of praise and recognition on the occasion of its 70th anniversary in 2019. In the opinion of an influential German journalist, it has become the “bible of the Germans” (Kohler 2019). Moreover, it enjoys very high legitimacy. In 2019, 88 percent of German citizens expressed the view that it has stood the test

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of time (Infratest Dimap 2019). In 1949, such widespread approval was far from guaranteed. Initially, the Basic Law met with great scepticism, since it was seen as a contribution to the division of Germany and, hence, as a transitional basis for the West German state. Since then, it has become a symbolic expression of the fundamental consensus of German society. This becomes particularly apparent when its broad public acceptance is compared with the significantly lower approval ratings of parliaments, governments and political parties. One explanation for this unexpected success story is that the Basic Law combines features of a rigid and a flexible constitution. Its rigid characteristics resulted primarily from the immediate experience of the failed Weimar democracy and the totalitarian National Socialist dictatorship. Therefore, the Parliamentary Council designed a particularly robust constitutional core to protect democracy and the rule of law and established institutional provisions that would counter any destabilisation of the parliamentary system of government. The flexible features of the Basic Law resulted primarily from its initially provisional nature, which arose due to the limited sovereignty of the Federal Republic. This meant it could not regulate all areas conclusively. Moreover, the firm belief in a united Europe led the Parliamentary Council to include the “integration lever” (Art. 24, para. 1 GG) that rendered the Basic Law compatible with a supranational constitutional framework even before European integration began. The large number of amendments to the constitution are further evidence for the flexibility of the Basic Law. Between 1949 and 2022, roughly every second article was changed, some of them several times. This way, initial “blank spaces”, such as the defence constitution and the emergency constitution, were filled in. The Basic Law also offered an appropriate framework for a swift constitutional integration of East Germany in the process of German unification. At the same time, its compatibility with the dynamically developing constitutional order of the European Union was preserved by specific amendments to its text. Yet despite these many amendments, the original substance of the Basic Law has largely been preserved. Although the distribution of competencies between the federal and the state levels has seen numerous changes since the 1950s, the structure of cooperative federalism has remained essentially untouched. The relatively high barrier for amendments has also contributed to the substantial rigidity of the constitutional framework: since two-thirds majorities in the Bundestag and Bundesrat can only be

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achieved by involving all major parties, only widely supported amendments to the Basic Law have been possible, which usually meant minor constitutional changes on the lowest common denominator. It is mainly to the political actors’ credit that rigidity and flexibility have been well-balanced in Germany’s “living” constitution. This particularly includes the political parties, which have been capable of compromising on constitutional issues. Furthermore, the Federal Constitutional Court has made significant contributions to developing a contemporary understanding of the Basic Law that is consistent with changing societal values. In so doing, it has ensured that the implicit constitutional changes by its rulings have found widespread acceptance. Needless to say, the positive performance of the Basic Law cannot be taken for granted in future. In view of the increasing fragmentation of the German party system and heterogeneous government coalitions on the federal and state levels, necessary constitutional amendments could fail to receive the required majorities in the Bundestag and Bundesrat more frequently. The incapacity to adapt could lead to the rigidity of the Basic Law becoming dysfunctional. At the same time, the development towards an EU fiscal union, reinforced by the extensive COVID-19 recovery fund, poses the great challenge of preserving the rigid constitutional framework for democratic governance at home without affecting Germany’s positive orientation towards European integration. Against this background, different reform options are being discussed. On the one hand, demands for specific additions to the Basic Law have emerged that would offer even better protection of the constitutional framework against anti-democratic government majorities and therefore increase its rigidity (Steinbeis 2019, p. 9). On the other hand, there has been criticism of the increasingly detailed nature of the amendments in the Basic Law, which could negatively impact its constitutive character as well as its flexibility. To assess these and other reform proposals, it is worth taking another look at the origins of the Basic Law. Because the Parliamentary Council felt that the transition to the Nazi dictatorship was partly due to the construction flaws of the Weimar constitution, it tried to configure the democratic order of the Basic Law as rigidly as possible. Although these lessons of Weimar were important to solidify democracy in the German federal republic, there is a broad consensus today that the failure of the Weimar Republic cannot be ascribed to functional weaknesses of its constitution (Gusy 2018; Kielmansegg 2019). Constitutional provisions alone are insufficient to safeguard democratic stability. While

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it is true that democracy needs a constitution that enshrines the separation of powers, fundamental rights and the rule of law, it relies first and foremost on the broad acceptance of its integral principles and their application in practice.

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A. Lorenz (Eds.), Verfassungswandel im Mehrebenensystem (pp. 130–157). Wiesbaden: VS Streinz, R. (2019). Europarecht (11th ed.). Heidelberg: C.F. Müller Sturm, R., & Pehle, H. (2012). Das neue deutsche Regierungssystem: Die Europäisierung von Institutionen, Entscheidungsprozessen und Politikfeldern in der Bundesrepublik Deutschland (3rd ed.). Wiesbaden: Springer VS Thiel, M. (Ed.) (2003). Wehrhafte Demokratie: Beiträge über die Regelungen zum Schutze der freiheitlichen demokratischen Grundordnung. Tübingen: Mohr Siebeck von Bredow, W. (2008). Militär und Demokratie in Deutschland: Eine Einführung. Wiesbaden: VS Vorländer, H. (2009). Die Verfassung (2nd ed.). München: C.H. Beck Wolfrum, E. (2006). Die geglückte Demokratie: Geschichte der Bundesrepublik Deutschland von ihren Anfängen bis zur Gegenwart. Stuttgart: Klett-Cotta Wollenschläger, F. (2015). Artikel 24. In H. Dreier (Ed.), Grundgesetz: Kommentar. Band II, Artikel 20–82. Tübingen: Mohr Siebeck

CHAPTER 3

The European Union: The Supranational Framework

The European Union (EU) occupies a special position in Germany’s international environment. On the one hand, the Federal Republic of Germany was a founding member of the European Communities and had a big part in determining their development as the largest member state. On the other hand, the EU is a supranational organisation. Its institutions make legislative decisions on many policies that the member states have to implement. Germany therefore has a “Europeanised” political system (Sturm and Pehle 2012, p. 5), which cannot be entirely understood without the EU. What does the European framework of the German political system look like? Does it constrain democratic will formation and decision-making? Or does it widen the scope of action of democratically legitimised actors by allowing them to participate in European policy-making? To answer these questions, we will retrace the history of European integration in Section 3.1. Section 3.2 will describe the EU system of government and explain why it can be considered a multi-level democracy. Section 3.3 will show the multiple effects of Europeanisation on German domestic institutions and actors. Section 3.4 will summarise the core results and discuss various options to improve democratic governance in the EU multi-level system.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 F. Grotz and W. Schroeder, The Political System of Germany, New Perspectives in German Political Studies, https://doi.org/10.1007/978-3-031-32480-2_3

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3.1 Integration in Steps: The Historical Development of the European Union The European Union currently has 27 member countries and performs a wide range of political tasks that previously were within the remit of the nation-state. Its decisions have significant consequences for all institutions and actors in the German political system. Even though the EU is a construct of international law, founded on treaties between its member states, its supranational legislation is binding for EU institutions and for the member states (see Bieber et al. 2019; Haltern 2017). Therefore, European law has precedence over national law much in the same way that, inside Germany, federal law has precedence over state law (Art. 31 GG; Chapter 2.3). Even constitutional regulations in EU member states can come in conflict with European law. Against this backdrop, the Federal Constitutional Court has repeatedly deliberated on the effect of EU regulations on the German constitutional order (Chapters 2.3 and 12.3). EU law is divided into primary legislation, which forms the constitutional framework of the union, and secondary legislation, which emerges from the political decisions within this framework. The core of primary legislation includes the Charter of Fundamental Rights of the European Union (CFR), the Treaty on European Union (TEU), containing the fundamental principles of the union, and the Treaty on the Functioning of the European Union (TFEU), which determines the competences of the EU and its institutional structures and procedures. These documents of primary legislation have the same function as a constitution in the context of a nation-state. At the same time, “European Constitutional Law” (von Bogdandy and Bast 2009) differs from national constitutions in one central aspect: EU institutions cannot change their constitutional regulations themselves but can only perform the tasks allocated to them within that framework (principle of conferral). All reforms of the TEU and the TFEU must be approved by a unanimous vote of all member states. However, the treaties also include rules for the harmonisation of legislation (Art. 114–115 TFEU) and alignment of competences (Art. 352, para. 1 TFEU), which opens a possibility to circumvent the principle of conferred powers. Secondary legislation adopted by EU institutions includes different forms. Regulations are “European laws” and have immediate and binding

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effects in all member states. Directives are “European framework legislation”, that is, their content has to be transposed into national law. Decisions are immediately binding regulations that apply in individual cases, while statements and recommendations do not have legally binding effect but are often considered when setting other legal norms. Unlike the German Basic Law, the constitutional order of the EU was not created at a specific point in time but is the result of a two-dimensional integration process. On the one hand, the original treaty to found a community of states has been reformed and complemented many times, with the European level continuously gaining more powers (deepening ). At the same time, more and more countries have joined the EU (enlargement ). In the following, we will retrace the most important steps in the development of this supranational framework.1 Plans to create a unified Europe were developed as early as the end of the First World War (Loth 1996, pp. 10–12). After 1945, they experienced a revival. In view of the suffering and destruction caused by the Second World War, the underlying idea seemed self-evidently sensible: the integration of the European nation-states was intended to enhance economic welfare and prevent future wars between them once and for all. In this context, various international institutions were founded, such as the Organisation for European Economic Co-operation (OEEC, the predecessor of the Organisation for Economic Cooperation and Development, OECD) in 1948 and the Council of Europe in 1949. However, the most successful integration project began when the European Coal and Steel Community (ECSC) was founded in 1951 on the initiative of the French Foreign Minister Robert Schuman, based on an idea by the French planning commissioner Jean Monnet. The six founding members (Belgium, France, Germany, Italy, Luxembourg, The Netherlands) committed to subjecting their coal and steel sectors to a supranational High Authority flanked by a council of national ministers, an assembly of national members of parliament and a court of justice. Apart from economic considerations, the congruent interests of the two largest member states on foreign and security policy played a decisive role. France was mainly interested in controlling the newly founded West German state through a supranational supervision of key industries 1 The following paragraphs are based on Grotz and Kretschmer (2015, pp. 111–118). On the history of European integration see also McCormick (2015), Tömmel (2014), Schimmelfennig and Winzen (2020) and Weidenfeld (2020).

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of military significance. By contrast, for the young Federal Republic of Germany, the ECSC offered access to the international stage (Haftendorn 2001). France and Germany thus became the “engine” of European integration (Weidenfeld 2020, p. 19). Whenever their interests aligned, they usually managed to convince the other member states to enter into further integration. In doing so, they continued the method developed by Monnet: keeping the final form of the supranational framework open and instead seeking a gradual transfer of sovereign powers wherever the member states could find consensus. The basic idea behind this strategy was that shared sovereignty in individual sectors would spill over into other policy areas and lead to a political union. Soon afterwards, the integration project experienced its first setback. In August 1954, French Prime Minister René Pleven’s proposal to complement the ECSC with a European Defence Community (EDC) failed in the French National Assembly. This also put the plan to establish a European Political Community with its own constitution on ice. In 1957, the six ECSC countries signed the Treaties of Rome to found the European Economic Community (EEC) and the European Atomic Energy Community (EURATOM). The main goal of the EEC treaty was economic: the creation of a customs union and a single market. In 1967, the three European Communities (EC) were institutionally fused, meaning that the ECSC, EEC and EURATOM now had one single Commission (formerly High Authority), one Council of Ministers and one Parliament (formerly Parliamentary Assembly). Just before that, another integration crisis emerged when France opposed the transition from unanimous consent to qualified majority voting in the Council of Ministers and therefore did not attend its sessions (“empty chair crisis”). This disagreement was resolved through the Luxembourg compromise, which granted every member state a veto in the case of important national interests. However, this event illustrated the limits of member states’ willingness to engage in supranational integration. The greater focus on “intergovernmental” arrangements manifested itself most obviously in the meetings of heads of state and government in the European Council, which have taken place regularly since 1974 with the aim of removing blocks to further integration. In 1970, the European Political Cooperation (EPC) was established as a coordinating procedure outside the EC treaties for harmonising the foreign policies of the member states.

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The enlargement of the EC proceeded just as reluctantly as its deepening. The United Kingdom had already applied to join twice in the 1960s but had failed on each occasion due to the veto by French President Charles de Gaulle. The country was only able to join the EC in 1973, together with Ireland and Denmark. Norway had also concluded its negotiations with the EC successfully but failed to become a member because a majority of Norwegian voters rejected the accession in a referendum. The end of authoritarian regimes in Southern Europe led to a new round of enlargement: Greece joined the EC in 1981, and Spain and Portugal followed in 1986. At that point, the number of member states had doubled from six to twelve. In the mid-1980s, the debate about further integration re-emerged, which prompted the first change to the foundational treaties: the Single European Act (SEA), ratified by the member states in 1985. The main goal of the SEA was the completion of the European single market by the end of 1992. In addition, it formally codified the EPC and provided for new EC powers in the areas of environmental, technological and social policies. Finally, the decision formula in the Council was changed from unanimous consent to qualified majority voting. However, numerous exemptions from this rule remained. The collapse of the Eastern Bloc in 1989/1990 posed unforeseen challenges for the EC. On the one hand, a major issue was the future position of a unified Germany. While the states of the former GDR were admitted to the EC along with their accession to the Federal Republic of Germany on 3 October 1990 without having to go through a standardised accession process, it remained unclear how the balance of power in the European Community could be maintained in view of Germany’s increased economic dominance. On the other hand, the EC soon faced the prospective accession of the newly democratised Central and Eastern European (CEE) countries, whose political and economic stability appeared uncertain. Against this backdrop, the most wide-ranging reform of the European treaties up to then took place with the Treaty of Maastricht, ratified in 1992. Once again, the “German-French tandem”, this time under the leadership of French President François Mitterrand and German Chancellor Helmut Kohl, turned out to be crucial for the success. In addition, the president of the European Commission, Jacques Delors, exerted considerable influence on the core of the Maastricht Treaty: the Economic and Monetary Union (EMU), which would supplement the single market

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and establish a new quality of Europeanisation with its transition to a supranational monetary policy and a common currency (euro). Moreover, the TEU created a unified umbrella for the “three pillars” of the EU: the EC treaty (ECT), which absorbed the previous EEC treaty, the common foreign and security policy (CFSP) and the police and judicial cooperation in criminal matters (PJCC). However, the image of symmetrical pillars obscured their fundamental differences. The European Community only had supranational decision-making competences in the first pillar, with the European Parliament also receiving co-decision powers in several policy areas. In the other two pillars, there was no transfer of sovereignty to the union, which meant that intergovernmental structures remained in place. Moreover, the limits of the pro-integration consensus became apparent even within the first pillar. In a supplementary protocol, the United Kingdom and Denmark insisted on being exempt from participating in the common currency. The upcoming enlargement through the accession of the CEE countries gave the EU occasion to implement further reforms. In 1993, the heads of state and government adopted the Copenhagen criteria, which define the preconditions for EU membership. Accordingly, any candidate country would have to have a democratic order under the rule of law, to maintain a functioning market economy and to implement the entire corpus of EU legislation (“acquis Communautaire”). Before the start of negotiations with the first CEE countries, Austria, Finland and Sweden joined the EU in 1995, which increased the number of member states to 15. To make the union “fit” for Eastern enlargement, the Treaty of Maastricht was revised very soon after coming into force. The result was the Treaty of Amsterdam, signed in 1997, which modified some provisions in the second and third pillars. Furthermore, the treaty introduced an option for “enhanced cooperation” that aimed at facilitating future integration steps by allowing a smaller group of member states to cooperate more closely under certain circumstances. Last but not least, the Schengen Agreement was incorporated into the EU framework. In this intergovernmental treaty, Germany, France and the Benelux states had already agreed in 1985 to abolish border controls for travellers between their countries. The Treaty of Amsterdam expanded these regulations to the other EU countries as well as to Norway, Liechtenstein and Switzerland. Only the UK and Ireland continued controls at their EU borders.

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The Treaty of Amsterdam did not succeed in making the union “fit for enlargement”. Just a few months after it came into force, the next round of institutional reforms began, leading to the Treaty of Nice in 2001. Again, the changes to the EU’s institutional framework were rather modest. The number of Commission members was not significantly reduced, which would have improved its functionality in an enlarged EU. A complicated “triple” majority rule was introduced for the Council of Ministers, even though the scope of application for such majority decisions was not substantially expanded. The rules for enhanced cooperation were somewhat simplified but were still not applied to the CFSP. Notably, the Charter of Fundamental Rights was solemnly proclaimed but was not granted the status of binding legislation. In the Treaty of Nice, the heads of state and government adopted a declaration on the future of the EU that specified key issues for the further reform process. The subsequent debate led to the establishment of the Convention on the Future of Europe in 2002, consisting of representatives of the national governments, the EU Commission, the European Parliament and the national parliaments. The convention met publicly and was chaired by former French President Valéry Giscard d’Estaing. This transparent format set a counterpoint to the previous treaty revisions, which had been negotiated “behind closed doors” by government representatives. The Convention was also supposed to elaborate on a new Treaty establishing a Constitution for Europe (TCE). In mid-2003, it presented the draft that was soon called a “Constitutional Treaty” or “European Constitution”. Even though it included some remarkable innovations, it essentially merged the main contents of the previous treaties into one document (Hesse and Grotz 2005, pp. 27–31). It took until autumn 2004 before the heads of state and government were able to agree on a final version of the TCE. Eventually, the constitutional treaty failed because a majority of the citizens of France and the Netherlands voted against it in referenda in spring 2005. In view of these negative voting outcomes in two of the EC founding countries, the ratification process was suspended. The “European constitution” project had failed. In the subsequent period, all efforts focused on a reform treaty. The Treaty of Lisbon, signed in 2007, avoided any constitutional terminology or symbolism. Nevertheless, its content was largely based on the failed TCE. The most important innovations included the abolition of the three-pillar structure, the full incorporation of the EC into the EU and the implementation of the Charter of Fundamental Rights as binding

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law. Moreover, the European Council was given the position of a permanent president; the range of decisions that could be made by a majority in the Council was expanded; and the co-decision procedure in which the European Parliament has a veto right was declared the “ordinary legislative procedure”. Again, the ratification process proved difficult. This time, there was only a referendum in Ireland, which led to a rejection. This initial decision of the Irish people was subsequently reversed in a second referendum. Shortly before that, the German Federal Constitutional Court had declared the treaty compatible with the Basic Law (Chapter 12.3). On 1 December 2009, the Treaty of Lisbon came into effect. It has been the core of primary legislation since then. In parallel, the EU experienced the greatest enlargement in its history with the accession of the CEE countries. After the start of the first accession negotiations at the end of the 1990s, ten countries were admitted in 2004 (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia, Malta and Cyprus). Bulgaria and Romania followed in 2007, and Croatia joined in 2013. Thus, the EU grew to 28 member states. Since 2009, no new attempts have been made to reform the treaties. Nevertheless, there is still a significant need for change. This is particularly true for the economic and monetary union, whose construction has some weaknesses and shortcomings. Croatia joined the Eurogroup on 1 January 2023, meaning that twenty EU member states have now replaced their national currencies with the euro. Before a country introduces the euro, it must meet the convergence criteria laid down in the Treaty of Maastricht relating to price levels, interest rates, currency exchange rates and national debt, as defined in the Stability and Growth Pact of 1997 (Hesse and Grotz 2005, pp. 50–68). Mutual liability for national debts is ruled out, which was especially important for the German government at that time (“no bailout”; Art. 125 TFEU). Likewise, the European Central Bank (ECB), which is responsible for monetary policy, was prohibited from granting loans to member states or purchasing newly created government bonds. During the state debt crisis, which heavily affected several member states from 2010 onwards and thereby threatened the stability of the euro, the EU’s constitutional framework was severely tested. In this situation, the countries of the Eurogroup agreed on a hitherto unprecedented emergency plan. Together with the EU and the International Monetary Fund (IMF), they opened a “rescue umbrella” called the European Stability Mechanism (ESM) in the amount of e750 billion, which was

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intended to ensure the solvency of Greece and other heavily indebted EU countries. In addition, they established the European Financial Stability Facility (EFSF) outside the European treaties, which was later merged with the European Stability Mechanism (ESM). This was accompanied by the European Fiscal Compact, signed in 2012, which prescribed “debt brakes” for national constitutions (Chapter 4.1) and a reform of the European System of Financial Supervision (ESFS). The ECB also passed a large-scale buying programme for state bonds from eurozone countries. These extraordinary efforts attenuated the worst of the debt crisis. The regulations to rescue the euro were set outside the framework of EU primary legislation and are therefore outside the control of EU institutions. For this reason, there have been demands to “democratise” the eurozone by putting it under the supervision of a parliamentary assembly (Hennette et al. 2017). Moreover, numerous lawsuits have been filed against the euro rescue, also involving the Federal Constitutional Court (Chapter 12.3). More specifically, the plaintiffs argued that the rescue umbrella violated the “no bailout” clause and that the ECB was engaging in prohibited state funding through its bond-purchasing programme. Even if all pending cases were to be rejected, the question still remains of how all EMU-related regulations could be incorporated into the framework of the EU treaties. During the COVID-19 pandemic, the cohesion of the EU was severely tested again. In November 2020, the EU governments followed an initiative by Germany and France and agreed with the EP on a recovery plan called “Next Generation EU” of a total of e750 billion, which provides loans of e360 billion and non-repayable grants of e390 billion. For the first time, the EU has borrowed large amounts of money from the international capital markets. It intends to repay the debt by 2058 (Matthes 2020). These funds are primarily intended to benefit the Southern and Eastern European member states, whose economies were particularly affected by the pandemic. At the same time, the European Parliament insisted on introducing a “rule of law mechanism”, whereby member states violating fundamental standards of democracy and the rule of law may have their allocated EU funding reduced. In response, the governments of Hungary and Poland threatened to block the multiyear EU budget that was to be passed at the same time. This shows once more how fragile the integration consensus has become among EU members. Currently, similar conflicts of interest between the member states have arisen with regard to a European energy strategy, although

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a joint approach would facilitate the transformation towards renewable energies, which seems even more urgent in light of the Russian invasion of Ukraine in February 2022. Major challenges for the EU are also arising due to a prospective further enlargement. At the end of 2022, there were eight official accession candidates: Albania, Bosnia-Herzegovina, Moldova, Montenegro, North Macedonia (called Macedonia until 2019), Serbia, Turkey and Ukraine. Further potential candidates include Georgia and Kosovo. Whether or when these countries will become EU members is impossible to predict. This also holds true for Ukraine, which was granted EU candidate status in light of the Russian attack in June 2022 but did not enter an accelerated accession procedure. Turkey’s accession to the EU has come to a standstill a while ago and still seems unrealistic. Moreover, the EU has established various partnerships and trade agreements with countries in the Mediterranean and the Caucasus since the mid-2000s. It is difficult to estimate whether these agreements promote stability and prosperity in the union’s neighbourhood and thus mitigate the new territorial division at the outer borders of the EU. An especially serious turning point in the history of integration was the withdrawal of the United Kingdom from the EU . After “Brexit” got the majority of votes in a referendum in June 2016, it was implemented on 31 January 2020. This was only the culmination of an EU-wide trend towards increased assertions of national self-interests and disintegration (Schimmelfennig and Winzen 2020). In view of the euro rescue and the refugee crisis, Eurosceptic parties have gained importance, which has led to a stronger polarisation in national party systems on European integration (Hutter and Kriesi 2019). Overall, the idea of an “ever closer Union among the peoples of Europe” (Art. 1 TEU) seems to have lost the self-evident attraction it possessed at the beginning of the supranational project. Table 3.1 summarises the most important steps in European integration. It highlights the parallel deepening and widening of the European Union. Since the mid-1980s, the extent of EU competences has strongly increased. At the same time, the number of member states has more than doubled. These integration dynamics have had two consequences for the German political system. On the one hand, the EU is now definitely part of national political will formation and decision-making. Therefore, domestic political and administrative structures and routines need to be adjusted to the supranational framework if Germany wants to articulate

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its interests effectively in a union of 27 member states and implement European law in conformity with the rules. On the other hand, the Europeanisation of policy-making requires democratic political structures and procedures at the EU level to ensure its legitimacy with the German citizens.

Table 3.1 Historical development of the European Union: Deepening integration and territorial enlargement Year

Deepening integration (European treaties)

Territorial enlargement (Founding members, accessions, withdrawals)

1952

European Coal and Steel Community European Defence Community Treaties of Rome (EEC, EURATOM)

Germany, France, Italy, Belgium, The Netherlands, Luxembourg

1954 1958 1973 1981 1986 1987 1990 1993 1995 1999 2003 2004 2005 2007 2009 2013 2020

United Kingdom, Ireland, Denmark Greece Spain, Portugal (EC-12) Single European Act East Germany (former GDR) Treaty of Maastricht Finland, Sweden, Austria (EU-15) Treaty of Amsterdam Treaty of Nice Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia, Malta, Cyprus (EU-25) EU Constitutional Treaty Bulgaria, Romania (EU-27) Treaty of Lisbon Croatia (EU-28) Withdrawal of the United Kingdom (EU-27)

Source Authors’ compilation following Grotz and Kretschmer (2015, p. 117). Failed integration steps or steps towards disintegration are indicated in italics. Dates of European treaties refer to the year of their coming into force; they were usually signed one or two years earlier (see text)

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3.2

The EU System of Government

The basic structure of the EU system of government was already in place in the ECSC treaty. It consisted of a supranational High Authority, which was later renamed the European Commission and performed the most important executive tasks, and a council of national ministers, which made political decisions and was advised by an assembly of national parliamentarians, the predecessor to the European Parliament (EP). It also contained a European Court of Justice (ECJ), which was responsible for solving legal disputes within the community. Thus, the European system of government followed a separation of powers logic from its very beginning. This feature lent it some similarity to the national systems of government (Jachtenfuchs 2002). At the same time, the EU has remained a union of sovereign states. Therefore, it also differs from the democratic polities of its members. How democratic is the political system of the EU? This question has become increasingly urgent over time. Since more and more political issues are decided at the EU level, it is no longer sufficient to justify these decisions to citizens on the basis of their substantive quality (output legitimacy; Scharpf 1999). Rather, European policy-making needs to link back to the people as the sovereign body via institutionalised structures and procedures that meet the standards of representative democracy (input legitimacy). A twofold concept of popular sovereignty is necessary to understand the EU as a democratic multi-level system (Kielmansegg 2009, p. 232): the people are both citizens of the EU and citizens of the individual member states. Accordingly, there are two different types of institutions. Supranational institutions provide for equality in the participation and representation of individual EU citizens while intergovernmental institutions ensure equal participation and representation of the democratically elected governments of the member states, which represent the interests of their citizens. The EU system of government therefore requires both supranational and intergovernmental institutions to guarantee its democratic legitimacy. However, if all 27 member states are to be included appropriately according to their different sizes while maintaining the systems’ decision-making capacity, the design of EU institutions becomes problematic. This “democratic dilemma” becomes apparent when we look at the individual EU institutions (Hodson and Peterson 2017; Steffani 1995).

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The Council of the European Union, also called the Council of Ministers or just Council, includes one representative of each national government and therefore represents the interests of the member states (Art. 16 TEU). It makes decisions on European legislative acts, a task it shares with the European Parliament in most EU areas of competence. The Council meets in various compositions, depending on the policy subjects. There have been up to 20 different council configurations in place at various points in time. Since the Treaty of Lisbon, their number has been limited to ten. The Foreign Affairs Council—composed of foreign ministers—has a prominent role, since it is responsible for “foreign relations” as well as for “general affairs”, which means that it coordinates all councils composed of ministers from other departments. The treaties provide a rather broad definition for Council membership. Accordingly, ministers of the German states (Länder) may replace the federal government in specific policy areas (Chapter 11.3). The presidency of the Council rotates every six months between the member countries. To ensure a certain continuity in the chair, “trio presidencies” were introduced in 2007, i.e. the three countries scheduled to head the Council consecutively coordinate their agenda. Only the Foreign Affairs Council meets under the permanent chair of the High Representative for Foreign Affairs and Security Policy (Art. 18 TEU). The Council also supervises the implementation of EU law. For this purpose, there is a system of around 250 committees (“comitology”) that include national civil servants and experts whose meetings are chaired by the European Commission. Voting rules in the Council have changed over time. In the early phase of European integration, all decisions had to be made by unanimous vote. With the growing number and heterogeneity of member states, this intergovernmental procedure could no longer be applied consistently, since it would have increased the risk of deadlock. Today, the Council takes its decisions in most policy areas by a qualified majority. For some time, the exact nature of this qualified majority rule was highly controversial because individual governments could be outvoted and would still have to implement these decisions “at home”. According to the Treaty of Lisbon, a double majority is now standard procedure. This means that at least 55% of the member states, who also represent at least 65% of the EU population, must vote in favour of a decision. Consequently, a minority of at least four member states may block a decision (Art. 16 TEU). Overall, qualified majority rule has replaced unanimity between the member states. At the same time, high consensus barriers still apply, and the varying population

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sizes of the member states are also taken into account, which safeguards the national principle of popular sovereignty. The Council is supported in its legislative tasks by a Committee of Permanent Representatives (abbreviation COREPER, based on its French name). It consists of the EU ambassadors of the member states (COREPER II) or their deputies (COREPER I; Art. 240 TFEU). Because this committee meets on a regular basis, it greatly facilitates the formation of intergovernmental consensus (Chapter 10.3). Another intergovernmental EU institution is the European Council (EUCO). It includes the heads of state and government of the 27 member countries, the EUCO president and the president of the European Commission (Art. 15 TEU). The High Representative for Foreign Affairs and Security Policy and, depending on the subject matter, further members of national governments and EU commissioners also attend its meetings. The president of the European Council is elected by its members with a qualified majority for a term of two-and-a-half years and can be re-elected once (Art. 15, para. 5 TEU). The EUCO was not envisaged in the foundational treaties of the European Communities. It has been meeting since the mid-1970s on a regular basis, but it was only with the passing of the Treaty of Lisbon that it acquired the status of an EU institution and received a permanent president. Unlike the Council of Ministers, it does “not exercise legislative functions” but works as an initiator of integration by determining the “general political directions and priorities” of the EU (Art. 15, para 1 TEU). It is also the final instance of political controversies. The EUCO meets at least four times per year and usually presents its “conclusions” to the public. These contain political intentions as well as requests to the Commission to take action in specific areas. Although the EUCO generally takes its decisions “by consensus” (Art. 15, para. 4 TEU) and hence works according to the intergovernmental principle, explicit vetoes are rare. The informal atmosphere of the EUCO meetings has contributed to the fact that it is able to function even in difficult constellations and has promoted European integration overall (Fabbrini and Puetter 2016). The European Parliament (EP) is the only directly elected EU institution and therefore represents the EU citizens. It currently has 705 members, elected for a five-year term. The seats in the EP are distributed among the 27 member states according to a fixed quota (Art. 14 TEU). The ratio is based on the principle of “degressive proportionality”.

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This apportionment attempts to achieve a balance between intergovernmental and supranational representation, meaning each member state has a minimum of six seats, and the number of seats increases for larger countries. However, the increase is not proportional to member states populations. For instance, Germany, the country with the largest population, receives 96 seats, while Malta, the smallest country, has six members. Thus, 867,000 German citizens elect one Member of the European Parliament (MEP), while the ratio in Malta is 87,000 citizens (own calculation based on Eurostat 2023). Within the national contingents, EP seats are allocated according to the principle of proportional representation. Since the member countries have the right to specify the electoral system for their EP seats, minimum thresholds of representation differ (Chapter 5.3). In spite of the nationally segmented electoral system, the MEPs organise themselves in transnational party groups. However, there are no classic political parties on the EU level, only more or less loose umbrella organisations based on ideological families (Chapter 6.3). Currently, the EP has seven parliamentary groups (Fig. 3.1). The largest is the European People’s Party (EPP; 25% of the 705 seats), which the CDU and CSU as well as one MEP of the Family Party (Familienpartei) belong to, followed by the Progressive Alliance of Socialists and Democrats (S&D; 20.6%), to which the SPD belongs. The MEPs from the Free Democrats (FDP) and the Free Voters (Freie Wähler) are members of the “Renew Europe” group (14.5%). The Greens formed the group “The Greens/European Free Alliance” (10.1%) together with their sister parties; this group also includes MEPs from other German parties (ÖDP, Pirate Party) as well as one MEP from the transnational Volt movement and an independent MEP (a former member of PARTEI). The Alternative for Germany (AfD) is a member of the Identity and Democracy group (ID; 9.2%), composed of various right-wing populist and extremist parties. There is also a similar-sized parliamentary group of conservative and Eurosceptic parties (ECR; 8.9%). In this group, Germany has only one MEP (former member of AfD). The smallest group is “The Left in the European Parliament” (GUE/NGL; 5.4%), consisting of various socialist and communist parties, including the German Left Party (Die Linke). Over 6% of MEPs (46) are independents. Whereas most of them used to come from various small parties (one German MEP

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EPP 25.0% 102 176

71

ECR 8.9%

S&D 20.6%

63

ID 9.2%

145 64

The Left 5.4% 38

705 seats

NI 6.3% 46

Fig. 3.1 Parliamentary groups in the European Parliament (2019–2024) (Source Authors’ compilation. Seat allocation as of 19 December 2022 [after Brexit])

is from PARTEI), the number of non-attached members grew significantly when the MEPs of the Hungarian Fidesz party left the EPP group in 2021. The European Parliament is chaired by a president elected for a term of two-and-a-half years by the MEPs. Its internal organisation is modelled on a working parliament, i.e. consultation and decision-making largely take place in the 20 standing committees, where seats are allocated in proportion to the parliamentary groups. These arrangements are very similar to those in the German Bundestag (Chapter 9.2). The most important task of the EP is to make legislative decisions, which are reached jointly with the Council in most cases. However, it does not have the right to initiate legislation but can only ask the European Commission to propose a bill. In addition, the EP and the Council jointly decide on the annual EU budget prepared by the Commission. Finally, it participates in the appointment of the Commission and may also dismiss it under certain conditions (see below). In the course of European integration, the EP has gained more powers than any other EU institution. For this reason, the gradual democratisation of the EU’s political system has manifested itself most clearly in this

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continuous strengthening of the parliament. At the same time, the EP still has democratic shortcomings compared to the member state parliaments. Above all, it lacks the right to initiate legislation, has only partial budgetary powers and possesses limited oversight over the Commission. Another problem is the unequal representation of national citizens through degressive proportionality. Finally, the EP has struggled with its low public visibility. Although the most recent EP elections saw an increase in voter turnout from 42.6% (2014) to 50.6% (2019), they are still considered “second order” in the eyes of the citizens (Braun and Tausendpfund 2020; Chapter 5.3). The European Commission is the main executive body of the EU. Like the EP, it is also a supranational institution. Its main task is to promote the general interests of the union (Art. 17, para. 1 TEU). The Commission consists of 27 members (one commissioner for every member state) as well as its administration, which is comparable to a national ministry. Each commissioner has his or her own department, like the federal and state ministers in Germany. One of the members holds the office of the President of the Commission; the High Representative for Foreign Affairs and Security Policy is also one of the vice presidents. After every EP election, a new Commission is formed according to the following procedure. First, the EUCO elects a person with a qualified majority to become a candidate for the office of the Commission President. In this decision, the EUCO is required to take the result of the EP elections into consideration (Art. 17, para. 7 TEU). The EP must then confirm the candidate. Afterwards, the other members of the Commission are nominated by the national governments and submitted to the EP in a unified draft list. If the European Parliament approves it, the Commission is appointed by the EUCO with a qualified majority. Following its appointment, the Commission is largely politically independent. It can only be recalled by the EP with a two-thirds majority. The only Commission that did not finish its regular term was the one headed by Jacques Santer, which resigned in 1999 to forestall a parliamentary no confidence vote in view of accusations of corruption. The Commission makes its decisions by simple majority; usually, it tries to find a consensus. Each commissioner has a personal circle of advisors, consisting of six to nine civil servants (“cabinet”) who are authorised to issue directives to their departments (Directorates General). The President of the Commission plays a preeminent role. He or she represents the

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Commission externally, determines the guidelines for Commission policy and can even force individual commissioners to resign. The Commission performs several tasks that are largely similar to those of national executives but also tailored to its specific role as a supranational institution. More concretely, it is the only EU institution with the right to initiate legislative acts. This prerogative has promoted pro-integrationist legislation beyond the lowest common denominator of member state interests. In addition, the Commission is the guarantor of the single market as it supervises economic competition and takes measures against prohibited state aid. Its tasks also include the preparation and implementation of the EU budget as well as the supervision of EU law enforcement (Chapter 3.3). The highest judicial body in the EU is the European Court of Justice (ECJ). It consists of 27 judges (one per member state), nominated by the national governments by unanimous consent for a six-year term after a hearing before an expert panel (Art. 255 TFEU). Re-appointments are possible. In addition, there are eleven advocates general, who support the judges by preparing decisions and providing expert assessments. The president of the ECJ, elected for a three-year term from among the judges, presides over the hearings and consultations and leads the court administration. The ECJ rarely sits in full assembly but meets most of the time in a grand chamber (15 judges) or in smaller chambers (of three to five judges respectively). The ECJ is responsible for the final interpretation of EU law, which provides it with the authority of a constitutional court (Höreth 2008). Its rulings have made a decisive contribution to supranational integration. As early as 1963, the Court stated in its decision on the Van Gend & Loos case that the EEC constitutes a “new legal order of international law” whose regulations are to be immediately and completely implemented by the member states. This supranational interpretation of EU law was confirmed and extended by the Costa vs. ENEL decision (1964) and further judgements. The procedure of “preliminary rulings” is of particular importance, whereby national courts can turn to the ECJ directly if there are issues with the interpretation of EU law (Art. 267 TFEU). The court in question then has to consider the interpretation received from the ECJ. In 2014, the German Federal Constitutional Court made use of this provision for the first time (Chapter 12.3). The European Commission can also call on the ECJ in cases of treaty violation. In the event of an action for annulment, it reviews whether an EU body has violated EU

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law upon the request of another EU body, a legal person or a natural person. Finally, EU member states, EU institutions or individual persons affected can bring an action before the ECJ if they accuse EU institutions of failure to act even though the action was required by EU law (Art. 265 TFEU). The ECJ is supported by the Court of the European Union (CJEU; until 2009: Court of First Instance) and the European Union Civil Service Tribunal (CST), both of which are subordinate to the ECJ. There are two further EU institutions with special functions. The European Central Bank (ECB), established in 1998 and modelled on the German Bundesbank, has the primary task of maintaining price stability (Art. 282 para. 2 TFEU). Its most important decision-making body is the ECB Governing Council, which includes the members of the Executive Board (president, vice president and four further members, all appointed by unanimous consent by the EUCO for an eight-year term) and the governors of the central banks of the EU countries. The Executive Board is responsible for common monetary policy and is authorised to give instructions to the central banks of the euro countries. In addition, the ECB is in charge of currency transactions, the administration of the member states’ currency reserves and the promotion of frictionless payment transactions. The European Court of Auditors (ECA) is broadly similar to the courts of auditors in Germany on the federal and state levels (Chapter 9.2). Responsible for auditing and budgetary oversight, it submits annual reports about the management of EU funds. In cases of irregularities, it informs the European Anti-Fraud Office (OLAF), which then investigates. Finally, there are two bodies that have an advisory function in EU policy-making. The first one is the European Economic and Social Committee (EESC), which has existed since the Treaties of Rome (1957) and includes representatives of various interest groups (employers, employees, consumers, etc.). The second one, the European Committee of the Regions (CoR), gathers representatives from the regional and local levels with the intention of getting the input of decentralised interests. Both committees consist of 329 members each. Every national government nominates its country’s delegation, which is then to be approved by the Council. The distribution of seats to the member states generally follows the principle of degressive proportionality. Germany sends 24 delegates to each of these committees—just as many as the second largest member states, France and Italy. Because of the weak competences of

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the EESC and CoR, Germany’s disproportionate representation does not result in a substantial impairment of the democracy principle. Figure 3.2 provides a summarising overview of the EU system of government. Two aspects are essential for the understanding of Germany’s supranational framework. First, the EU combines intergovernmental and supranational institutions. Although each of these can be overall categorised as intergovernmental or supranational, their internal organisation contain elements of both principles. If we follow the argument that both intergovernmental and supranational arrangements contribute to the EU’s democratic legitimacy, the union may be considered a multi-level democracy with some limitations. These limitations result from the fact that the intergovernmental principle has more weight on the EU level than in a democratic nation-state and the EP as the body representing the “peoples of Europe” has weaker powers than the national parliaments. Second, the EU system of government exhibits characteristics of a consensus democracy because of its pronounced diffusion of power (Costa and Magnette 2003; Lijphart 2012). Political actors from Germany are represented in various positions. Although the federal republic is the largest member state, it has no veto power over most EU policies on its own. This means that representatives of German interests must engage in

European Council

nominates EC president and commissioners

elects ECB Executive Board

appoint Heads of state and government form EC and elect EC President

Member state governments

appoint

European Central Bank Court of Justice of the EU European Court of Auditors

European Economic and Social Committee

European Commission initiates

European Committee of the Regions appoints

adopts/ rejects

Council of the European Union

send ministers

elects

§

adopts/ rejects

European Parliament

elect/ oversee

Member state parliaments

elect

elect

Citizens

Fig. 3.2 The EU system of government (Source Authors’ compilation)

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cooperation with other national and European actors in order to promote their agenda.

3.3 The Europeanisation of German Politics: Policy Shaping and Implementation The European Union has a multifaceted impact on the politics of its member states. Since all policy areas are affected by Europeanisation to varying degrees (Sturm and Pehle 2012, p. 347), the institutions and actors in the German political system have to adapt to the EU framework in two ways. On the one hand, European politics starts at the federal, state and local level. If national actors seek to influence supranational decisionmaking on behalf of their citizens, they need to become aware of the policy agenda at the EU level as early and comprehensively as possible in order to articulate their interests and to forge strategic alliances. On the other hand, the implementation of EU regulations by the member states takes place in accordance with the provisions of the Charter of Fundamental Rights (Art. 51, para. 1 CFR). This requires specific administrative capacities and political know-how about the legally correct execution of supranational regulations without causing unwanted side effects in the domestic environment. The need for adjustment to European integration varies enormously between the different institutions and actors of the German political system. This will be discussed extensively in further chapters of this book. In order to put these detailed findings into perspective, we will give a systematic overview of the Europeanisation of German domestic politics below. First, we will outline the scope of EU policies in order to illustrate the importance of proactive shaping of political decisions on the supranational level. Furthermore, we will address typical problems with the national implementation of European legislation and look at the specific requirements to overcome these problems. Finally, we will list the most important challenges and consequences that the main political institutions and intermediary organisations in Germany face due to Europeanisation. The scope of European legislation has continuously increased in the course of time. By now, there are almost no policy areas in which the

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EU has no competences at all. The TFEU divides the union’s legislative competences into five categories (Art. 2–6 TFEU): • Exclusive competence: Only the EU can pass legislation in this field, while the member states can only become active if they are empowered by the union. Inter alia, this category includes customs, issues of economic competition, monetary policy of the euro countries, foreign trade policy and the protection of marine life. • Shared competence: The category typically refers to parts of a policy area that have been transferred to the EU, whereas the member states are responsible for other parts. This concerns a wide range of tasks such as internal market regulations, structural and regional policy, agriculture and fisheries, environment and consumer protection, transport and trans-European networks, energy and development cooperation as well as various aspects of science, internal, legal, social and health policies. • Furthermore, the EU is in charge of coordinating the economic, social and employment policies between the member states. • The union is also responsible for supportive and supplemental measures of national policies in various fields (health care, industry, culture, tourism, general and professional education, youth and sport, disaster management and administrative cooperation). • Finally, the development of the common foreign and security policy, with its intergovernmental structures and procedures, forms a specific category of EU competencies (see Art. 21–46 TEU). This catalogue provides a first impression of the huge variety of EU policies across and within different areas. EU institutions have also made very different use of these competences (Sturm 2016, pp. 225–228). For instance, the trade, competition and currency policies that fall into the EU’s exclusive competence have largely ceased to be national tasks. There has been a similar development in agricultural policy and in most parts of environmental, structural and regional policy, which are all under shared competence and where policy-making takes place predominantly at the European level. Other policy fields, such as judiciary and internal affairs, have not been affected by supranational regulations for a long time. However, they have also experienced an increasing Europeanisation during the recent past.

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Like national legislation, European legislation uses different modes of governance to achieve its political goals. In most policy areas, the EU focuses on regulatory measures that set uniform standards and thus create a level playing field throughout the EU (Majone 1994). This can be achieved either by the reduction of national barriers to competition or trade (“negative integration”) or by the creation of new standards (“positive integration”, Scharpf 1999, p. 49). Although regulatory measures usually do not take financial means from the EU budget, they may impose considerable adaptation costs on public administrations, the economy and society. For example, air pollution policy in Germany traditionally focused on the avoidance of emissions. Since the respective EU regulations have been based on and monitored by using standards of environmental quality, they fundamentally transformed the German practice, which proved to be quite costly (Jörgens and Saerbeck 2016). In contrast to regulatory measures, redistributive measures that involve financial resources have been more limited on the EU level than on the national level for a long time. One reason is that the EU budget, whose multiannual framework (called “financial perspective”) is determined by the heads of state and government at regular intervals (Hesse and Grotz 2005, pp. 216–221), is considerably lower than the budgets of the member states. For instance, the federal budget in Germany envisaged e476 billion of expenditures in 2023, while the entire EU budget for the same year was e187 billion. One other reason has to do with the policy priorities of the union. While the largest part of the German federal budget—around 40%—is spent on labour and social affairs, around three quarters of the EU budget goes to agriculture and structural and regional subsidies. These financial resources are not distributed proportionally among the member states but predominantly go to the structurally weaker regions of the Southern and Eastern European member countries. Nevertheless, EU structural policies have also played a significant role in Germany (Zimmermann 2016). This is especially true for the East German states that received extensive subsidies from Brussels after reunification because they belonged to the relatively poor regions in the union. Since socioeconomic conditions have improved more in East Germany than in many other regions, East German states only receive reduced EU funding. Therefore, the role of EU subsidies in German structural and regional policy has decreased. However, with its e750 billion package of 2020 to revive the European economy after the COVID-19 pandemic

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(“Next Generation EU”), the EU departed from its previous path of financial restraint and limited redistribution among the member states. The “pressure” of Europeanisation on the German political system not only results from the necessity to shape supranational legislation proactively but also from the requirement to implement EU law correctly and in a timely manner. This is particularly true for the two most important kinds of EU legislation (Chapter 3.1): regulations, which come into effect immediately and therefore have to be implemented directly by the member state administrations, and directives, which still need to be transposed into national legislation and hence require time and effort in national parliaments before they can be implemented. The European Commission monitors the compliance of member states with EU law. When violations occur, it can instigate treaty infringement proceedings at the ECJ, which may lead to significant fines in the event of a negative verdict (Art. 258 TFEU). For instance, in March 2020, the Bundestag and Bundesrat decided after a long struggle to introduce stricter regulations for the use of fertilisers, which had become necessary due to EU standards for nitrate in the groundwater. Otherwise, Germany would have faced fines in the amount of e850,000 per day (Schulz 2020). This example illustrates that the national implementation of EU legislation cannot be taken for granted. The Commission has continuously launched infringement procedures against the member states. Unlike other countries, Germany managed to avoid incurring a substantial increase in infringement procedures in 2021. With 71 pending cases, it currently ranks among the average of the EU member states (Fig. 3.3; European Commission 2022). The vast majority of these pending cases are in the areas of environmental protection, internal market, transport, justice and consumer affairs. There are different reasons why the implementation of European legislation is sometimes postponed for longer than permitted or remains below the mandatory standards. For example, the Anti-Discrimination Directive (2000) was implemented in Germany after a long delay because the SPD-Green government wanted to go significantly above the minimum standards set by the EU and initially failed because of the resistance of the opposition centre-right parties and the German businesses (Treib 2008). In the area of environmental policy, there were repeated conflicts between the federal government and the German states, because the latter are responsible for implementing EU directives and were not willing to make the necessary amendments to their administrative procedures (Sturm and Pehle 2012, pp. 264–289).

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Even in the field of the European Monetary Union, shaped “largely after the German model of an independent central bank and a monetary policy aimed at price stability” (Börzel 2006, p. 500), German domestic policies were not always in line with supranational provisions. In the early 2000s, the SPD-Green government was willing to provoke a breach of the stability and growth pact because the measures for budget consolidation were unpopular with German voters. This behaviour by the German government, which had been mainly responsible for introducing the strict regulations of the pact, seriously affected its credibility with other member states (Wenzelburger 2019, p. 68). As diverse as the problems of implementing EU legislation may be, they all have one thing in common: they are the result of prior political decisions taken on the EU level. In cases where German actors were the main “policy shapers” (Börzel 2006, p. 501), there were usually no significant repercussions in national implementation. This shows that policy-making in the multi-level system is not a “top-down” imposition but rather an interactive process in which representatives of member states need to engage on the EU level in order to influence supranational decisions in their favour. The challenges of being actively involved in EU politics and of implementing EU policies effectively have specific consequences for the domestic institutions and actors in the German political system (Chapter 1.3). The federal government participates in supranational policy-making through the European Council and the Council of Ministers. This means that it must synchronise the positions of its delegates, who participate in the discussions and decisions on legislative acts in the various Council formations. EU policy coordination between the federal chancellery and the federal ministries is thus the most important challenge (Krax 2010; Chapter 10.3). The Bundestag, by contrast, has lost legislative powers due to Europeanisation (Töller 2014; Chapter 9.3). However, as a democratic parliament, it still shares responsibility for EU policies (Hufeld 2018, p. 40). Furthermore, it plays an important role in the implementation of EU directives. To do this job effectively, it has to increase its capacity for information processing and scrutiny in European affairs—both towards the federal government and towards the EU. The Federal Constitutional Court has to consider the general openness to integration of the Basic Law in its EU-related judgements without putting the core of the democratic constitution at risk. This balancing act is becoming increasingly delicate (Chapter 12.3).

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ES IT EL PL BE BG CZ RO FR AT CY SI PT DE HR SK SE HU IE LU LV NL MT LT EE FI DK

105 102 102 92 91 87 85 84 80 76 75 73 72 71 68 66 60 60 59 58 57 53 52 51 49 48 31 0

20

40

60

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Fig. 3.3 Infringement proceedings against EU legislation in member states (Source Authors’ compilation based on European Commission [2022]; as of the end of 2021)

The German states have also transferred legislative competences to the supranational level. At the same time, they are required to implement the bulk of EU legislation. Therefore, the state governments have made sure to acquire substantial participation rights in EU affairs via the Bundesrat (Chapter 8.3), while the state parliaments have been weakened further (Chapter 13.4). The local level must implement EU legislation on behalf of the states. Moreover, EU regulations affect the realm of local selfgovernment in many ways. Local governments and administrations thus

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have had to strategically develop and extend their EU-related capacities in order to cope with the consequences of Europeanisation (Chapter 14.4). The intermediary organisations face particular challenges in view of increased Europeanisation, because their main structures and routines are still bound to the domestic environment. Even if German citizens have had an overall positive attitude towards European integration, their unreserved approval has “cooled off” significantly since the 1990s (Knelangen 2018, p. 131). Furthermore, Eurosceptic forces like the Left Party and the Alternative for Germany have emerged in the German party system, which was previously characterised by a broad pro-integration consensus for a long time (Chapter 6.3). Against this backdrop, there is a lot of incentive for other parties to take differentiated positions on European integration and thus contribute to a more substantial politicisation of EU affairs (Treib 2018). The situation is somewhat different for German associations (Verbände), because they have already created sector-specific access to EU institutions and networks with their sister organisations from other member states to influence supranational policies (Chapter 7.3). At the same time, it remains a permanent task for national interest groups to define their political position on European integration. In particular, the German trade unions face a dilemma here (Schroeder 2018). On the one hand, the EU is moving further and further away from its idea of a social Europe, which has prompted criticism from all workers’ interest organisations. On the other hand, there is no real alternative to the EU that would ensure the success of the export-oriented German economy and its workers. Finally, the media system has been confronted with distinct demands arising from Europeanisation. This particularly applies to public services broadcasters. On the one hand, they have had to expand their reporting on EU affairs quantitatively and qualitatively in order to create an appropriate public sphere for the multi-level system. On the other hand, their services are increasingly affected by EU media regulations and competition law (Chapter 8.3).

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3.4

Conclusion: Expansion or Limitation of Democratic Governance?

The EU impacts the domestic politics of its member states in many ways due to its extensive decision-making authority. It therefore forms the supranational framework of the German political system. This has doubleedged consequences for the functioning of democracy. On the one hand, the EU extends the scope of action for the democratically legitimised representatives by allowing them to participate in political decisions that are binding across all member states. This has enabled the creation of a European single market, which has led to a considerable increase in prosperity (Mion and Ponattu 2019). Germany has especially benefited from this economic integration, since more than half of its exports go to other EU countries. Moreover, European integration has contributed to maintaining peace on the continent which was barely imaginable at its beginnings in the early 1950s. In particular, the Federal Republic of Germany has experienced a “gain in sovereignty through renunciation of sovereignty” (Haftendorn 2001, p. 436) resulting from its membership in the supranational project. On the other hand, Europeanisation is affecting democratic governance in two distinct ways. First, the EU system of government does not fully comply with the normative standards that the parliamentary democracies of its member states are based on. Although the EU can be generally seen as a democratic multi-level system that convincingly balances supranational and intergovernmental elements, obvious shortcomings remain, such as the unequal representation of EU citizens in the European Parliament. Second, EU law limits the substantive scope of national policy-making. Furthermore, the institutional setting of the multi-level system reinforces the power shift from parliaments to governments, a phenomenon already familiar from “executive federalism” in Germany (Chapter 4.1): national governments take legislative decisions on the EU level, while their parliaments are only left with political oversight. How can the quality of democracy be improved in the EU multilevel system? In the face of increasing Euroscepticism, this question is more relevant than ever before. Potential answers address the question at different levels. For a long time, there has been a debate on how to reduce the “democratic deficit” at the EU level (Schäfer 2006). In this context, there have been many proposals for institutional reform, such as

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an increase in equality of representation in the European Parliament, a parliamentary right to initiate legislation or a directly elected president of the Commission (Decker and Sonnicksen 2009). However, there are always “risks and side effects” to consider. For example, if the seats of the EP were to be distributed in proportion to the member countries’ populations, the parliament would become almost unworkable because of its immense size. More generally, any institutional reform that affects the balance between the supranational and the intergovernmental elements would have to be accepted by the “peoples of Europe”. Contrary to the widespread criticism the EU has faced, its architecture seems to possess “an astonishing amount of institutional rationality” (Kielmansegg 2009, p. 234). Another reason for the low societal acceptance of EU politics is the weakness of intermediary organisations at the European level. Despite the extensive Europeanisation of legislative powers, most political parties, interest associations and mass media have maintained their primary focus on the domestic context. Public discussion on European issues is still scarce. At the same time, the political heterogeneity of the member countries in the EU-27 has increased. Under these conditions, even a formal expansion of majority decisions would barely improve output legitimacy if the outvoted countries did not implement the decisions. The EU refugee policy is a case in point (Bendel 2017). Overall, the functioning of democracy in the EU multi-level system crucially depends on the “Europeanness” of the German political system. Its institutions must provide the necessary capacities for the political actors to actively shape policies at the EU level and implement EU regulations in a rule-compliant and context-appropriate manner. Therefore, the remaining chapters of this book will also pay specific attention to the Europeanisation of German politics.

References Bendel, P. (2017). EU-Flüchtlingspolitik in der Krise: Blockaden, Entscheidungen, Lösungen. Bonn: Friedrich-Ebert-Stiftung Bieber, R., Epiney, A., Haag, M., & Kotzur, M. (2019). Die Europäische Union: Europarecht und Politik (13th ed.). Baden-Baden: Nomos Börzel, T. (2006). Europäisierung der deutschen Politik? In M. G. Schmidt, & R. Zohlnhöfer (Eds.), Regieren in der Bundesrepublik Deutschland (pp. 491– 509). Wiesbaden: VS

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Braun, D., & Tausendpfund, M. (2020). Die neunten Direktwahlen zum Europäischen Parlament: Rahmenbedingungen, Parteien und Bürger in der Bundesrepublik Deutschland. Zeitschrift für Parlamentsfragen, 50(4), 715– 735. https://doi.org/10.5771/0340-1758-2019-4-715 Costa, O., & Magnette, P. (2003). The European Union as a Consociation? A Methodological Assessment. West European Politics, 26(3), 1–18. https://doi. org/10.1080/01402380312331280568 Decker, F., & Sonnicksen, J. (2009). Parlamentarisch oder präsidentiell? Die Europäische Union auf der Suche nach der geeigneten Regierungsform. In F. Decker, & M. Höreth (Eds.), Die Verfassung Europas (pp. 128–164). Wiesbaden: VS European Commission. (2022). Monitoring the Application of European Union Law. 2021 Annual Report. Retrieved December 12, 2022, from https://commission.europa.eu/publications/2021-annual-report-mon itoring-application-eu-law_en Eurostat. (2023). Population on 1 January by Age and Sex. Retrieved March 13, 2023, from https://ec.europa.eu/eurostat/databrowser/view/DEMO_ PJAN/default/table?lang=en&category=demo.demo_pop Fabbrini, S., & Puetter, U. (2016). Integration without Supranationalisation: Studying the Lead Roles of the European Council and the Council in the Post-Lisbon EU Politics. Journal of European Integration, 38(5), 481–495. https://doi.org/10.1080/07036337.2016.1178254 Grotz, F., & Kretschmer, A. (2015). Die Europäische Union. In A. Grimmel, & C. Jakobeit (Eds.), Regionale integration (pp. 109–143). Baden-Baden: Nomos Haftendorn, H. (2001). Deutsche Außenpolitik zwischen Selbstbeschränkung und Selbstbehauptung, 1945–2000. Stuttgart i. a.: DVA Haltern, U. (2017). Europarecht. Dogmatik im Kontext. Band I: Entwicklung— Institutionen—Prozesse (3rd ed.). Tübingen: Mohr Siebeck Hennette, S., Piketty, T., Sacriste, G., Vauchez, A., & Bischoff, M. (2017). Für ein anderes Europa: Vertrag zur Demokratisierung der Eurozone. München: C.H. Beck Hesse, J. J., & Grotz, F. (2005). Europa professionalisieren: Kompetenzordnung und institutionelle Reform im Rahmen der Europäischen Union. Berlin: Duncker & Humblot Hodson, D., & Peterson, J. (Eds.). (2017). The Institutions of the European Union (4th ed.). Oxford: Oxford University Press Höreth, M. (2008). Die Selbstautorisierung des Agenten: Der Europäische Gerichtshof im Vergleich zum U.S. Supreme Court. Baden-Baden: Nomos Hufeld, U. (2018). Europäische Integration und Verfassungsänderung. In A. von Arnauld, & U. Hufeld (Eds.), Systematischer Kommentar zu den LissabonBegleitgesetzen (2nd ed., pp. 39–82). Baden-Baden: Nomos

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Hutter, S., & Kriesi, H. (2019). Politicizing Europe in Times of Crisis. Journal of European Public Policy, 26(7), 39–82. https://doi.org/10.1080/13501763. 2019.1619801 Jachtenfuchs, M. (2002). Die Konstruktion Europas: Verfassungsideen und institutionelle Entwicklung. Baden-Baden: Nomos Jörgens, H., & Saerbeck, B. (2016). Deutsche Interessen und Prioritäten in der europäischen Umweltpolitik. In K. Böttger, & M. Jopp (Eds.), Handbuch zur deutschen Europapolitik (pp. 304–315). Baden-Baden: Nomos Kielmansegg, P. G. (2009). Lässt sich die Europäische Union demokratisch verfassen? In F. Decker, & M. Höreth (Eds.), Die Verfassung Europas (pp. 219–236). Wiesbaden: VS Knelangen, W. (2018). Die öffentliche Meinung zur Europäischen Union in der Bundesrepublik Deutschland. In A. G. Harryvan, A. Kause, & H. Volaard (Eds.), Europa zwischen Hoffnung und Skepsis (pp. 115–133). Münster: Waxmann Krax, M. (2010). Nationalstaatliche Koordination der europapolitischen Willensbildung: Politikformulierung in Deutschland, Frankreich und dem Vereinigten Königreich im Vergleich. Opladen: Barbara Budrich Lijphart, A. (2012). Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries (2nd ed.). New Haven and London: Yale University Press Loth, W. (1996). Der Weg nach Europa: Geschichte der europäischen Integration 1939–1957 (3rd ed.). Göttingen: Vandenhoeck & Ruprecht Majone, G. (1994). The Rise of the Regulatory State in Europe. West European Politics, 17(3), 77–101. https://doi.org/10.1080/01402389408425031 Matthes, J. (2020). EU-Wiederaufbaufonds: Wie die EU die Blockade von Ungarn und Polen umgehen kann. Retrieved December 8, 2020, from https://www.focus.de/finanzen/experten/iwkoeln/gastbeitrag-eu-wiederauf baufonds-wie-die-eu-die-blockade-von-ungarn-und-polen-umgehen-kann_id_ 12680825.html McCormick, J. (2015). European Union Politics (2nd ed.). Basingstoke: Palgrave Mion, G., & Ponattu, D. (2019). Estimating Economic Benefits of the Single Market for the European Countries and Regions. Policy Paper. Gütersloh: Bertelsmann Stiftung Schäfer, A. (2006). Nach dem permissiven Konsens. Das Demokratiedefizit der Europäischen Union. Leviathan, 34(4), 350–376. https://doi.org/10.1007/ s11578-006-0020-0 Scharpf, F. W. (1999). Regieren in Europa: Effektiv und demokratisch? Frankfurt am Main: Campus Schimmelfennig, F., & Winzen, T. (2020). Ever Looser Union? Differentiated European Integration. Oxford: Oxford University Press

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Schroeder, W. (2018). Deutsche Sozialpartner und Europa: Zwischen EUOptimismus und EU-Pessimismus. In A. G. Harryvan, A. Kause, & H. Volaard (Eds.), Europa zwischen Hoffnung und Skepsis (pp. 159–180). Münster: Waxmann Schulz, F. (2020). Bundesrat nimmt neue Düngeverordnung durch Deal mit EU-Kommission an. Retrieved May 25, 2020, from https://www.euractiv. de/section/landwirtschaft-und-ernahrung/news/bundesrat-nimmt-neue-due ngeverordnung-durch-deal-mit-eu-kommission-an/ Steffani, W. (1995). Das Demokratie-Dilemma in der Europäischen Union. Die Rolle der Parlamente nach dem Urteil des Bundesverfassungsgerichts vom 12. Oktober 1993. In W. Steffani, & U. Thaysen (Eds.), Demokratie in Europa (pp. 33–49). Opladen: Westdeutscher Verlag Sturm, R. (2016). Die Europäisierung des deutschen Regierungssystems. Integration, 39(3), 213–229. https://doi.org/10.5771/0720-5120-2016-3-213 Sturm, R., & Pehle, H. (2012). Das neue deutsche Regierungssystem: Die Europäisierung von Institutionen, Entscheidungsprozessen und Politikfeldern in der Bundesrepublik Deutschland (3rd ed.). Wiesbaden: Springer VS Töller, A. E. (2014). Europäisierung der deutschen Gesetzgebung: Wissenschaftliches Kurzgutachten. Hagen: FernUniversität Tömmel, I. (2014). Das politische System der EU (4th ed.). München: De Gruyter Oldenbourg Treib, O. (2008). Europäisches Recht und nationale Parteipolitik: Warum Deutschland zu den Schlusslichtern bei der Umsetzung der EUAntirassismusrichtlinie gehörte. Sozialer Fortschritt, 57(7–8), 202–208 Treib, O. (2018). Deutsche Parteien und die EU: Traditioneller Integrationskonsens trotz zunehmend euroskeptischer Bürger. In A. G. Harryvan, A. Kause, & H. Volaard (Eds.), Europa zwischen Hoffnung und Skepsis (pp. 67–93). Münster: Waxmann von Bogdandy, A., & Bast, J. (Eds.). (2009). Europäisches Verfassungsrecht (2nd ed.). Berlin: Springer Weidenfeld, W. (2020). Die Europäische Union (5th ed.). Stuttgart: UTB Wenzelburger, G. (2019). Die Europäisierung nationaler Policies: Divergenz oder Konvergenz? In C. Scholz, H. P. Dörrenbächer, & A. Rennig (Eds.), Europa jenseits des Konvergenzparadigmas (pp. 51–72). Baden-Baden: Nomos Zimmermann, K. (2016). Regionalpolitik und Stadtentwicklungspolitik. In A. Hildebrandt, & F. Wolf (Eds.), Die Politik der Bundesländer (2nd ed., pp. 315–337). Wiesbaden: Springer VS

CHAPTER 4

The Federal Order

Federalism is a structural principle of the Basic Law (Art. 20, para. 1 GG). It stipulates that public authority is divided between the federal level of government (Bund) and the states (Länder). A federal order confers rights of autonomous policy-making (self-rule) to the states and, at the same time, compels the federation and the states to cooperate (shared rule; Elazar 1987). Because this vertical power-sharing limits the scope of action for the central government, every federal system shows traits of consensus democracy (Lijphart 2012, pp. 174–186). The dimension of shared rule is particularly prominent in Germany because the federal government and the states cooperate in most policy fields (cooperative federalism). The performance of German federalism has been a controversial subject. Some scholars have stressed the positive aspects of federal governance, such as the ability to integrate territorial interests appropriately and facilitate coordinated policy-making and implementation (Hesse and Benz 1990). However, other scholars have criticised the “interlocked” federal order for lacking transparency, producing compromises on the lowest common denominator and leading to “reform blockades” (Scharpf 2009, p. 13; Abromeit 1992). This hence prompts the question: does cooperative federalism offer a functional framework for democratic governance or an immobile form of state organisation that needs fundamental change? © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 F. Grotz and W. Schroeder, The Political System of Germany, New Perspectives in German Political Studies, https://doi.org/10.1007/978-3-031-32480-2_4

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To answer this question, Section 4.1 will elaborate on the historical roots of German federalism and explain the division of powers as well as the fiscal relations between the Bund and the states. Section 4.2 will explain the governance patterns in cooperative federalism, paying special attention to the significant changes brought about by German unification and intensified Europeanisation. Section 4.3 will take a look at horizontal cooperation between the states, even beyond their legal obligations to work together. Section 4.4 will summarise the most important results and discuss the opportunities and limitations of federal reform.

4.1 The Vertical Distribution of Powers and Fiscal Federalism Germany has a longstanding federal tradition (Rokkan 2000, pp. 185– 274). From the Middle Ages onwards, the Holy Roman Empire of the German Nation consisted of a multitude of different territories. Unlike in France, Spain or Portugal, a political-administrative centre that promoted the development of a unitary state never emerged on German soil. The unification of the country only took place in 1871 with the foundation of the German Empire. This established a federation and left the German states intact as independent entities. The decision to opt for a federation was the means by which Prussian prime minister Otto von Bismarck, who drove the unification process, could convince the larger states in Southern Germany to relinquish their sovereignty (Lehmbruch 2002, p. 79). The Imperial constitution (1871) made provision for vertical distribution of powers already laid out in the constitutions of St Paul’s Church (1849) and the North German Confederation (1867). The states were responsible for the execution of legislation that was passed on the imperial level. At the same time, the state monarchs participated in the legislative process through the Federal Council (Bundesrat ), which was a powerful counterweight to the democratically elected parliament (Reichstag ). The federalist character of the German Empire was also reflected in the fact that the central government maintained no ministries of its own, employed very few administrative staff and was completely dependent on the financial contributions from the states. The agreement of the Southern German states to the far-reaching centralisation of legislative powers was not only the result of the economic and military dominance of Prussia but also corresponded with the preferences of the liberal bourgeoisie for unitary, Germany-wide legal standards (Lehmbruch 2002,

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pp. 71–74). Thus, the imperial constitution triggered a “massive boost of unitarisation that aligned the living conditions of German citizens in the 25 individual states” (Weichlein 2012, p. 113). The Weimar constitution (1919) kept the essential components of “executive federalism”, i.e. it ensured the national level had legislative precedence but maintained the strong position of the state governments, who were formally integrated into the federal decision-making process via the Reichsrat (Lehmbruch 2002, pp. 92–97). In addition, the system of taxation was largely centralised. As “paying lodgers in the boarding house of the Empire” (Weichlein 2012, p. 118), the states no longer possessed sufficient funds, although their portfolio of tasks was steadily increasing. After the global economic crisis of 1929, this asymmetric structure of financial resources also contributed to the delegitimisation of the Weimar system. After the National Socialists took power, the states were coerced into a forced “alignment” but mostly retained their status as territorial administrative units. The federal tradition was resumed with the foundation of the Federal Republic of Germany (Boldt 2003; Grotz 2007, pp. 82–87). The Allied Occupation Forces were predominantly interested in weakening the central government of a future West Germany. Therefore, by 1947, twelve Länder were founded in the American, British and French zones. Compared to the Weimar Republic, their territories were extensively redrawn (Chapter 13.1).1 Breaking up Prussia was of particular significance, since it was considered the epitome of German militarism and had dominated intergovernmental relationships (Lehmbruch 2002, pp. 98– 100). Moreover, the Frankfurt Documents delivered to the prime ministers of the states by the Allied military governors on 1 July 1948 stipulated a federal form of government for West Germany (Kilper and Lhotta 1996, p. 81). All parties in the Parliamentary Council that met afterwards agreed in principle about a federal state structure, except the Communist Party (KPD), which preferred a unitary state. Nevertheless, the Social Democratic Party (SPD), the Free Democratic Party (FDP) and large parts of the Christian Democratic Union (CDU) spoke out in favour of extensive legislative powers at the federal level. Only the Bavarian Christian Social Union (CSU) was interested in stronger autonomy of the Länder (Kilper and Lhotta 1996, pp. 85–92).

1 West Berlin had a special status until 1990.

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As a result, the Parliamentary Council constructed the federal order based on the following characteristics, which are still evident today: • The federal state organisation is constitutionally guaranteed. According to Article 79, paragraph 3 of the Basic Law neither the “division of the Bund into Länder” nor their “participation in the legislative process” may be abolished (the “eternity clause”). In addition, any change in the federal division of powers requires a twothirds majority in the Bundesrat, the body representing the states (Art. 79, para. 2 GG). Because of this constitutional veto power, the states are on an “equal footing” with the federal level. • In keeping with the German federal tradition, the federal order proposed by the Parliamentary Council re-established a functional allocation of state powers—most legislative matters are decided at the federal level, while the states are in charge of implementing most federal laws (“executive federalism”). The preference for unitary regulations manifests itself in the constitutional provision that the Bund has the right to legislate on many policy matters if this furthers the “maintenance of legal or economic unity” or the “establishment of equivalent living conditions” (before 1994, this was termed “unity of living conditions”; Art. 72, para. 2 GG). The unitarisation of regulatory standards is further enhanced by the principle of the social state enshrined in Articles 20 and 28 of the Basic Law, which compels the legislators to “mitigate the adverse effects of unequal participation” (Kropp 2010, p. 17). • Regarding fiscal federalism, the Parliamentary Council also decided to adopt widely uniform structures (Renzsch 1991, pp. 54–74). More concretely, it assigned tax legislation and fiscal administration competences to the federal level. Furthermore, the most profitable taxes—value-added tax (VAT), income tax and corporation tax— were to be “pooled” and allocated between the Bund and the states after the fact. For the Allies, this centralisation of financial resources went too far. Therefore, the task of fiscal administration was eventually assigned to the states (Art. 108 GG), and the pooling of major tax revenues was only achieved later (see below). Moreover, the Basic Law provides for a fiscal equalisation scheme to “ensure uniformity of living standards throughout the federal territory” (Art. 106, para. 3 GG).

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• Besides their administrative powers, the states have a right to participate in federal legislation through the Bundesrat (Art. 50 GG). At the same time, this enhances the structures of executive federalism, since it is not the parliaments but the governments of the states that are represented in the Bundesrat (Schmidt 2001, p. 474; Chapter 11.1). Beyond these general characteristics, there is a highly differentiated vertical allocation of legislative and administrative powers. These constitutional provisions on the federal order of competences have important implications for how democratic governance works in the German multilevel system. In each federal polity, the states need a sufficient scope for autonomous action so that their parliaments can make sovereign decisions on behalf of the voters (self-rule). In their autonomous policy fields, state governments can also experiment with innovative solutions and learn from each other by competing on “best practices” (Benz 2012). At the same time, nationwide policies are required in many areas to meet citizens’ demands for equal standards (e.g. in social security), solve cross-border problems (e.g. in fighting crime) or address new challenges (e.g. digitalisation). In such areas, the federal government and the states have to work closely together (shared rule). Ensuring nationwide standards also requires comparable financial resources for the individual states, which presupposes a certain degree of solidarity between them. Thus, every federal polity must find a balance between self-rule and shared rule. Against this backdrop, we will now explain the order of legislative and administrative competences as well as the characteristics of the fiscal constitution. In doing so, we will demonstrate how the respective order of competences can be located between the poles of “diversity and unity” as well as “federal competition and solidarity”.2 The Basic Law allocates the primary right to legislate to the states but then names multiple policy areas where the Bund has regulatory authority (Art. 70–74 GG). The areas of legislation emerging from this general rule can be divided into four categories: (1) Exclusive legislation, where the Bund has sole regulatory authority. The states only have the right to legislate if they are expressly

2 The role and function of the Bundesrat will be discussed separately in Chapter 11.

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authorised to do so by a federal law (Art. 71 GG). This category includes a variety of tasks typical of a nation-state, such as foreign affairs, defence, citizenship law, currency, monetary policy, customs and foreign trade, the protection of borders and safeguarding cultural assets (Art. 73 GG). Some of these matters have since been transferred to the European Union, such as monetary and foreign trade policy (Chapter 3.3). Moreover, the Bund regulates numerous issues around cross-regional infrastructure, such as the postal service and telecommunications, aviation, the nationwide railway network and the civil use of nuclear energy. Finally, it is responsible for cross-state matters regarding domestic security, such as the defence against international terrorism or gun and explosives laws. (2) Concurrent legislation, where the states only have regulatory authority if the Bund has not yet been active in this area (Art. 72, para. 1 GG). The Bund has the advantage here as well because the states no longer have legislative power in a given area after the Bund has entered the field. This category includes a wide range of significant policy matters listed in Article 74, paragraph 1 of the Basic Law such as civic law and criminal law, commercial law and labour law, large parts of environmental law and transport law as well as central areas of social security and the health care system. The Bund is only allowed to legislate on some of these concurrent matters if this ensures “the establishment of equivalent living conditions throughout the federal territory” or the “maintenance of legal or economic unity” (Art. 72, para. 2 GG). However, this clause has not prevented the Bund from taking over a multitude of powers once held at state level (Mende 2010, p. 67). Since 2006, the states have had the option to deviate from existing federal laws in certain concurrent matters and pass their own legislation. This applies to hunting, protection of nature, landscape management and regional planning as well as admission to institutions of higher education and requirements for university degrees (Art. 72, para. 3 GG).3

3 Most of the latter areas previously fell into the category of framework legislation, where the Bund could issue general directives that had to be implemented by the states. Framework legislation was abolished in 2006 (Art. 75 GG, old version).

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(3) Joint tasks are specific legislative matters of nationwide significance that require federal participation (Art. 91a GG). This includes improving regional economic structures, agrarian structures and coastal preservation. The details of such intergovernmental cooperation are regulated by a federal law that needs approval by the Bundesrat. Moreover, the Basic Law mentions several areas where the Bund and the states can work together. This includes the promotion and support of science, research and teaching as well as the measurement of the performance of the German education system (Art. 91b GG); the development of systems of information technology for their administrations (Art. 91c GG); the assessment of the performance of their administrations (Art. 91d GG); and the provision of basic support for persons seeking employment (Art. 91e GG). (4) Finally, there are areas of autonomous state legislation, which include all matters that are not regulated by the Bund and are thus not mentioned explicitly in the Basic Law. This category includes the fields of education policy and internal security, the state organisation of the Länder and local government as well as certain areas of media, environmental, agricultural and social policy. Thus, legislation in German federalism is concentrated at the federal level. However, the Bundestag does not have legislative autonomy, because the state governments are substantially involved in law making via the Bundesrat (Chapter 11). We will now look at the distribution of administrative competencies in German federalism. Since there is significant scope for discretion when implementing legislative regulations, public administrations are not politically irrelevant; indeed, they are rather powerful players (Benz 2017, p. 411). The Basic Law distinguishes four types of administrative competences: (1) The standard procedure is the execution of federal laws by the states “in their own right” (Art. 83 GG). This means that the state governments decide which administrative agencies are in charge and which administrative procedures are applied; they provide the staff; and they cover the costs. The federal government may only monitor whether policies have been implemented in conformity

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with the law, but it has no influence on how, for instance, the naturalisation of foreigners takes place, the deportation of rejected asylum seekers is to be handled or how identity cards are to be issued (Pötzsch 2009, pp. 116–119). Furthermore, the state governments are free to delegate the implementation of federal legislation to local authorities (Chapter 14.1). Direct commissioning of local authorities by the federal government is prohibited (Art. 85, para. 1 GG). Where federal law specifies administrative procedures for implementation at state level, the states may enact derogating regulations. Federal laws requiring administrative regulations without the option to derogate need the consent of the Bundesrat (Art. 84, para. 1 GG). The same is true when a federal law obliges the states to provide financial grants (Art. 104a, para. 4 GG). The veto power by the Bundesrat provides the state governments with an effective instrument to defend their administrative autonomy (Hesse and Ellwein 2012, p. 293). Nevertheless, they have at times tacitly approved of decisions that enabled the Bund to interfere in their own realm of competencies (Section 4.2). (2) In certain areas, the states can execute legislation on behalf of the Bund (Art. 85 GG; federal commission). This includes the administration of federal roads and motorways (Art. 90, para. 3 GG), federal waterways (Art. 89, para. 2 GG) and air transportation (Art. 87d GG) as well as the production and utilisation of nuclear energy (Art. 87c GG). In such cases, federal agencies may instruct the relevant state authorities (Art. 85 para. 3 GG), and the Bund has to cover the resulting expenditures (Art. 104a para. 2 GG). (3) Some federal laws are executed by the federal administration (Art. 86–89 GG). This includes the various matters of foreign and security policy and protection of national borders carried out by the Federal Police, the Federal Criminal Police Office, the Federal Intelligence Services, the Federal Armed Forces and the Customs Administration. Moreover, there are a few federal authorities dealing with cross-regional infrastructure, such as waterways and shipping facilities. In such cases, the Bund may employ a company under private law to discharge its responsibilities, such as the Federal Motorway GmbH, which has been in charge of the planning, construction and maintenance of German motorways since 2021 (Art. 90, para. 2 GG). Due to the privatisation of railways, postal services and telecommunication since the 1980s, the

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federal administration has been slimmed down considerably (König and Benz 1997). (4) Finally, there are specific cases of mixed administration, where the execution of federal regulations is carried out jointly by administrative agencies from different levels. Since mixed administration is normally impermissible under the Basic Law, it has to be explicitly specified there, as in the case of basic support for job seekers (Art. 91e GG) and for certain areas of tax administration (Art. 108, para. 4 GG). The fiscal constitution is at the “heart of the federal order” (Schuppert 2012, p. 242). The federal government, the states and the local authorities are only able to perform their tasks if they have sufficient financial means to do so. This also implies that the distribution of tax revenues needs to be adapted whenever the distribution of tasks changes or new tasks emerge. Therefore, the fiscal constitution is always particularly dynamic and politically controversial. To understand fiscal federalism in Germany, we will first have to explain how taxes are determined and how they are distributed in the multi-level system (the revenue side). Then we will present the regulations on budgetary spending at the different levels (the expenditure side). On the revenue side, the distribution of competences in taxation law is of fundamental importance—that is, who has the right to determine the individual taxes, their amount and the assessment thresholds. The Basic Law provides the Bund with the exclusive legislative power over customs duties and with a concurrent legislative power when it comes to other taxes, insofar as it receives their revenues completely or in part or where the necessity clause according to Article 72, paragraph 2 of the Basic Law applies (Art. 105, para. 1 and 2 GG). In reality, this means that most taxes are entirely regulated by federal law. The option for the states to regulate taxes on real property is an exception (Art. 72, para. 3 GG; Art. 105, para. 2 GG; Art. 125b, para. 3 GG). Moreover, states may only set the tax on acquisition of real estate autonomously and independently regulate local taxes on consumption and expenditure (Art. 105, para. 2a GG). Therefore, the state governments’ scope for generating additional revenue is severely limited (Heinemann 2017, pp. 210, 212). At the same time, the Bundesrat has an absolute veto power over the regulation of taxes that either wholly or partially benefit the states and municipalities (Art. 105, para. 3 GG) and a suspensive veto on all other tax matters. This means

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that the federal government also has limited autonomy in taxation policy. The municipalities may determine the rates on real property and trade taxes within a pre-set legal framework (Art. 106, para. 6 GG). In addition, they can introduce their own taxes on consumption and expenditure as long as this is not prohibited by federal or state legislation (Chapter 14.1). The picture gets even more complex when it comes to the issue of which territorial authority receives which tax revenues. The distribution of tax revenue takes place according to two different systems (Fig. 4.1). The revenues from most individual taxes go to one specific level (system of separation). For instance, the federal level receives most of the excise taxes (energy, tobacco etc.), the insurance tax (Art. 106, para. 1 GG) and the solidarity surcharge. The states receive the revenue from inheritance tax, most of the transport taxes and several further forms of low revenue taxation, such as the beer tax (Art. 106, para. 2 GG; BMF 2019a, p. 2). Revenues from land and business tax as well as the local excise and expenditure taxes go to the municipalities (Art. 106 para. 6 GG). Customs duties and sugar tax revenues go to the European Union (Hacke 2012, p. 6). Other “independent EU resources” do not come from the EU’s own taxation but from allocations by the member states based on the amount of VAT revenue and gross national income (GNI; Weiß 2017; Chapter 3.3).4 The three forms of taxation with the highest revenue— income tax, corporation tax and value-added tax (VAT)—are shared taxes, which means they are distributed proportionally between the Bund and the states (Art. 106, para. 3 GG; joint system). The municipalities also receive 15% each of the income tax and VAT (BMF 2019a, p. 2). The next feature of fiscal federalism includes the distribution of tax revenues among the individual states. It makes sure that the states have the financial resources needed to perform their tasks. At the same time, it shows how extensive the solidarity between high-performing and low-performing states actually is in a federal system dedicated to the “establishment of equivalent living conditions” (Art. 72, para. 2 GG). The legal foundations for fiscal federalism can be found in Articles 106 and 107 of the Basic Law. These constitutional provisions are specified in three federal laws that need the consent of the Bundesrat: the reallocation law (Zerlegungsgesetz; ZerlG), the standards law (Maßstäbegesetz; MaßstG) and the fiscal equalisation law (Finanzausgleichsgesetz; FAG). The FAG, 4 In the EU context, financial contributions from member states based on sales tax revenue are called “own VAT revenue”.

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300 Sum of all joint taxes: €576 billion, among others:

250

40.3

7.4

114.2

110.8

114.2

116.5

Taxes in billion Euro

Joint taxes

200

150 100 50

16.7 16.7

0

Wage and income taxes Federal share

Value-added tax (VAT) State share

Corporation taxes Municipal share

Municipalities VAT-based contribution to the EU budget: €28.6 bn

Federation

Exclusive taxes

Sum of federal taxes: €108.6 bn among others: Energy duty Solidarity surcharge Tobacco duty Insurance tax Electricity duty Alcohol duty Aviation tax Coffee duty

€40.9 bn €18.9 bn €14.3 bn €13.8 bn €6.9 bn €2.1 bn €1.2 bn €1.0 bn

Sum of state taxes: €23.9 bn among others: Real property transfer tax Inheritance tax Tax on gambling establishments Beer duty Fire protection tax

€14.1 bn €6.8 bn €1.9 bn €0.7 bn €0.5 bn

Sum of local authority taxes: €71.8 bn among others: Trade tax Real property tax B Real property tax A

€55.9 bn €13.8 bn €0.4 bn

Fig. 4.1 The tax system in the German federal system: Forms, revenue sovereignty and revenues (Source Authors’ compilation based on BMF 2019c and Statistisches Bundesamt [Federal Office of Statistics] 2019a, b; as of 2018)

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in particular, has been amended several times, since it provides detailed provisions on the distribution of VAT and federal supplementary grants. Conflicts between the Bund and the states over the distribution of tax revenues have continued to erupt, and the Federal Constitutional Court has ultimately acted as an arbitrator (Geske 2007; Chapter 12.2). The primary tax allocation among the states follows the principle of local revenue, meaning that all state taxes and state shares in joint taxation collected by the financial authorities of a state flow into its budget (Art. 107, para. 1 GG). Income tax goes to the location where the taxpayer is registered, while corporation tax goes to all states where the tax-paying company has its premises (BMF 2019a, p. 2). VAT has a special status. It is collected centrally and later distributed according to a specific ratio (see below). Since VAT revenues are less dependent on economic cycles than those raised from income or corporation taxes, it is a suitable and flexible tool to “react to shifts between revenues and expenditures of the Bund and the states” (Kropp 2010, p. 97). Article 107, paragraph 2 of the Basic Law demands “a reasonable equalisation of the disparate financial capacities of the Länder”. This happens within the framework of a fiscal equalisation scheme, regulated in detail in the FAG (Tappe and Wernsmann 2019, pp. 73–99). Until 2019, the first step was VAT primary equalisation, which included up to 25% of the state share of VAT. States whose revenues from income tax, corporation tax and state taxes per inhabitant were below the nationwide average received greater allocations. The rest of the VAT revenue (2018: 85%) was allocated according to population numbers. Through this “redistribution measure”, e9.1bn was allocated in ways other than the population ratio (BMF 2019b). This was followed by the interstate fiscal adjustment, where better-performing states made equalisation payments to financially weaker states. In order to achieve this, the revenue situation of each state was determined and compared with the financial needs per inhabitant. The inhabitants of city-states and thinly populated states received a higher weighting. If the figure on the index of financial strength was lower than the figure on the equalisation index, the states received payments from other states whose financial strength surpassed the needs calculated for them. In 2018, Berlin benefited the most from this equalisation measure (+e4.4bn), while Bavaria made the highest contributions (−e6.7bn). The law about new regulations for the fiscal equalisation scheme of 2017 formally abolished interstate fiscal balancing from 2020 onwards. However, a horizontal equalisation mechanism between “richer” and

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“poorer” states still exists, since a new ratio applies to the distribution of the VAT share of the states, now called the “financial strength equalisation system”, which is based on population numbers and envisages reductions for financially strong states and supplementary payments to financially weak states (Benz 2017, p. 404). As a consequence, there is now more money left in the cash registers of richer states, particularly Bavaria, money that is now missing in the budgets of poorer states. Therefore, the Bund has committed to making up the missing amount within the framework of federal supplementary payments, the final step of fiscal equalisation. According to Article 107, paragraph 2 of the Basic Law, supplementary payments serve to reduce persistent differences between the revenues and financial needs of financially weak states and their municipalities. These payments have continuously increased in size because the states frequently coordinated among themselves in the run-up to the regular renegotiations of the financial equalisation system so that the Bund had to absorb the controversial financial obligations in order to facilitate a compromise (Martens 2003, p. 32). Apart from this, “special federal supplementary payments” exist, aimed at the “equalisation of special, only temporary financial needs of certain states” (BMF 2019b). This includes, for instance, infrastructure deficits and structural unemployment, but also the enormous support payments for the East German states within the framework of the Solidarity Pact, which expired at the end of 2019 (Lenk and Glinka 2018; Sect. 4.2). On top of this, there are various payments by the Bund to address temporary or permanent financial burdens, such as local public transport (Art. 106a GG), the transfer of the motor vehicle tax to the federal level (Art 106b GG) or the housing of refugees. Altogether, these funds paid by the Bund amount to around e9.5bn annually (Büttner and Görbert 2016, p. 818). Hence, German federalism also increasingly includes vertical “grants-in-aid” to poorer states. Figure 4.2 shows the redistribution effect of fiscal equalisation. Four of the five East German states had less than 60% of Germany-wide financial strength per inhabitant before equalisation (Mecklenburg–West Pomerania, Saxony, Saxony-Anhalt and Thuringia). By contrast, the values for Baden-Württemberg, Bavaria, Hesse and Hamburg were between 116 and 157%. After equalisation, the differences between all states fluctuated between 98 and 107%. Even if Fig. 4.2 does not include all federal funding streams and a complete alignment of the financial differences between the states is prohibited (BVerfGE 101, 158), the

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“high degree of levelling-out” is apparent (Kropp 2010, p. 107). A major reason for this is the principle of the social state, which aims at giving all citizens the same opportunities for societal participation. Since the states have to implement the bulk of social policies at their own cost but cannot always fund them from their own revenues, they need to be equipped with equivalent resources. On the expenditure side, the Bund and the states are generally “independent in the management of their respective budgets” (Art. 109, para. 1 GG). However, this principle of separate budgets is limited by further constitutional provisions. In particular, there are matters of mixed financing, where the Bund partly covers the cost for performing tasks that are actually the remit of the states. These include the above-mentioned joint tasks (Art. 91a GG) but also financial assistance that the Bund may 160

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0

BB

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BY

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Länder share of income and corporation taxes plus exclusive Länder taxes per inhabitant in percentage of the average, before the allocation of VAT (2021) Financial capacity in percent of Länder average (after fiscal equalisation and supplementary federal grants), more percisely: in percent of the equalisation indicator (Ausgleichsmesszahl) (2021)

Fig. 4.2 Financial resources of the states before and after equalisation (Source BMF [2019b])

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grant states and municipalities “for particularly important investments” (Art. 104b GG), such as the improvement of the municipal education infrastructure (Art. 104c GG). In addition, the Bund helps fund various support and promotion measures via monetary payment laws (Art. 104a GG). For example, it pays for half of the housing benefits received by low-income households in the form of rent subsidies. Usually, members of the respective state ministries and parliaments are the ones who strongly defend mixed financing: to protect their department from budget cuts, they may draw the attention of the ministry of finance to the fact that ending mixed financing measures would effectively “throw away” federal subsidies (Kropp 2010, p. 88). Both the Bund and the states are subject to strict budgetary discipline: Their budgets “shall, in principle, be balanced without revenue from credits” (Art. 109, para. 3 GG). While the Bund may borrow to the amount of 0.35% of annual GDP, the states are not allowed to take on any new debt. Since the states do not have any competences to generate their own taxes, spending cuts are the only way to balance their budgets. Because this regulation, passed in 2009, affects the states with the highest debt the most, these states—Berlin, Bremen, Saarland, Saxony-Anhalt and Schleswig–Holstein—were promised consolidation aid from the federal budget (Art. 143d, para. 2 GG). In addition, Bremen and Saarland may receive further redevelopment assistance from the federal level from 2020 onwards (Art. 143d, para. 4 GG). Exceptions from the borrowing ban are only possible in the case of “market developments that deviate from normal conditions”, as well as in the case of “natural disasters or unusual emergency situations beyond governmental control and substantially harmful to the state’s financial capacity” (Art. 109, para. 3 GG). Therefore, the huge new debt incurred by the Bund and the states in 2020 because of the COVID-19 pandemic was compliant with the constitution. However, the constitutionally required “amortisation plan” for this extraordinary borrowing has not been adopted yet (Art. 109, para. 3 GG). The main cause for introducing this “debt brake” are provisions in European law. Article 126 of the Treaty on the Functioning of the European Union (ex-Article 104 ECT) commits the EU member states to keeping their annual new borrowing under 3% of GDP as well as to reducing their public debt to below 60% of GDP. In cases of infringement, the European Commission can initiate an excessive deficit procedure against the respective country that may lead to the imposition of severe

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monetary fines by the European Court of Justice (Chapter 3.3). The Bund and the states must pay such fines “at a ratio of 65 percent to 35 percent”. 35% of the share of the states is borne by all the states together, proportional to their population, and 65% by individual states “according to their degree of causation” (Art. 109, para. 5 GG). To ensure compliance with budgetary guidelines, the Stability Council was established in 2009 (Art. 109a, para. 1 GG). It is the successor to the Financial Planning Council, which could only issue non-binding recommendations (Heinz 2016, p. 298). The Stability Council consists of the finance ministers from the federal government and the states as well as the federal minister for economic affairs. It can determine imminent budgetary emergencies and introduce binding recovery plans if necessary (Hacke 2012, p. 9). In that case, the ministers in question must justify their budgets in front of the Stability Council and prepare a path towards consolidation. Improved transparency is just as important as sanctioning measures. The reports by the Stability Council provide clear insights into the budgetary situation of the Bund and the states (Heinz 2016, p. 297). This “naming and shaming” mechanism has obviously enhanced the financial discipline of state governments (Kropp and Sturm 2015, p. 103). Altogether, the institutional structure of German federalism is characterised by a high degree of joint policy-making (Politikverflechtung; Scharpf et al. 1976). This means that the Bund and the states are forced to work together while fulfilling their policy tasks (Kropp 2010, p. 12). This cooperation between the different levels of government mainly aims to set nationwide standards and to ensure the “establishment of equivalent living conditions”. In contrast to many other federal countries that seek territorially differentiated solutions, German federalism is based on unitarianism as a guiding principle (Hesse 1962; Lehmbruch 2004). In spite of socioeconomic disparities between the states, regional approaches of policy-making that differ significantly from each other do not seem to be acceptable to the vast majority of citizens. “Unity” definitely comes before “diversity”.

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4.2 Federal Governance Between Interlocked Decision-Making and Structural Dynamics Cooperative federalism has multifaceted effects on the functioning of German democracy (Benz 2009). On the one hand, it offers citizens a high degree of political access and ensures that different regional interests are integrated into the nationwide process of will formation and decision-making. At the same time, the orientation towards unified standards facilitates a high degree of individual equality of opportunity. On the other hand, joint policy-making can make it hard to distinguish who is responsible for which political decisions, since different parties at federal and state levels participate in them all the time. Because so many actors take part in federal governance, and because the interests of political parties and states overlap, the outcome is often a “lowest common denominator” compromise. Moreover, nationwide reform projects can be blocked if some states make use of their veto power because of their specific interests. Whether the advantageous or problematic aspects of cooperative federalism prevail is determined by the given context. The extent of territorial homogeneity is of particular significance here (Erk 2007): the more the states differ in socioeconomic and sociocultural terms, the more the wins and losses taken from unitary regulations and fiscal redistribution differ. As a result, the willingness to reach a consensus, so essential for the functioning of cooperative federalism, also diminishes among the states. Thus, if territorial heterogeneity increases, the need for coordination in the joint decision-making system increases as well, and the probability of political blockades grows. Against this backdrop, governance in German federalism has been shaped by different contextual challenges and political dynamics since 1949. After the foundation of the Federal Republic of Germany, the initial rules and regulations of cooperative federalism were extended (Grotz 2007, pp. 89–91). From the 1950s onwards, law making became increasingly centralised because the Bund made far-reaching use of its right to concurrent legislation (Art. 74, para. 1 GG) and framework legislation (Art. 75 GG, old version). In this period, the federal government could largely determine whether the constitutional requirements for taking over legislative powers were met, since the Federal Constitutional Court did not question this practice (Oeter 1998, p. 207). In compensation for the centralisation of legislative powers, the state governments

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could strengthen their veto position in federal policy-making through the Bundesrat. Because the Bundestag often passed laws with administrative directives to the states, which required the consent of the Bundesrat (Art. 81, para. 1 GG), the proportion of “co-determined” legislation rose from 42% (1949–1953) to 56% (1957–1961; Dästner 2001, p. 293). This strengthening of joint decision-making was unanimously approved by the Bund and the states and took place without any constitutional amendments. The development of fiscal federalism was much more controversial. Since the Parliamentary Council had deliberately left the “eventual distribution of taxes subject to concurrent legislation” open (Art. 107 GG, old version), there was a need for constitutional adjustment (Renzsch 1991, pp. 130–169). The financially powerful states—at the time Bremen, Hamburg, Hesse and North Rhine-Westphalia—demanded a “flexible” distribution of tax revenue, while the financially weaker states hoped to gain more advantages from a comprehensive, obligatory tax-sharing scheme and therefore entered into a strategic alliance with the federal government that was also interested in a unitary solution. As a compromise, the fiscal reform of 1955 created a “small tax-sharing scheme”, which included income and corporation tax but not VAT. The trend towards unitarisation continued afterwards. The federal government issued several financial aid packages for specific purposes, which the states, particularly the financially weaker ones, readily accepted. Through these “golden reins”, the federal government increased its influence in the planning and implementation of policies that were actually state competences (Kilper and Lhotta 1996, p. 167). In 1967/69, a constitutional reform took place under the grand coalition of CDU/CSU-SPD that enshrined the previous developments towards “interlocking federalism” in the Basic Law (Renzsch 1991, pp. 209–260; Grotz 2013, pp. 334–337). Again, the drivers behind enhanced joint policy-making were the financially weaker states in conjunction with the federal government, while the financially powerful states were against it because they wanted to preserve their autonomy. Eventually, both sides reached a compromise on constitutional reform. Accordingly, a few matters were added to the catalogues of concurrent legislation and framework legislation (Art. 74 and 75 GG; Grotz 2007, p. 96). Moreover, the new article on “joint tasks” made provisions for “federal participation for the improvement of living conditions” in four policy areas (establishment and construction of universities, improvement

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of the regional economic infrastructure and of agricultural structures and coastal protection; Art. 91a GG). Furthermore, the Bund could give investment aid to the states in certain areas, which increased its political influence (Art. 104a GG). A “grand tax-sharing scheme”—which now included VAT as well—was created (Art. 106, para. 3 GG). Finally, the fiscal equalisation scheme was changed such that the financial disparities between the states were levelled out even further (Zabel 1985, p. 386). The SPD/FDP government under Chancellor Willy Brandt, which succeeded the grand coalition, embarked on a new delimitation of the federal territory. Referring to the constitutional mandate that each state should “be of a size and capacity to perform its functions effectively” (Art. 29, para. 1 GG, old version), this reform aimed at improving the efficiency and effectiveness of cooperative federalism. In 1970, the federal government established an expert commission that recommended the formation of five or six states of similar sizes instead of the previous ten. However, since the state governments categorically rejected this proposal, the federal government postponed its implementation. Eventually, they agreed to change the constitutional mandate for territorial restructuring into an optional directive (Oeter 1998, p. 304). Since then, there have been no attempts to restructure the territory of the federal republic in its entirety, although debates on this issue have emerged from time to time.5 Until the end of the 1980s, the federal order did not undergo significant changes because all major political actors—the federal government, the state governments and the municipalities—benefited from the given structures of joint policy-making, the tax-sharing scheme and the fiscal equalisation system. Only when the budgetary situation became more difficult in the mid-1970s did the federal government under Chancellor Helmut Schmidt (SPD) attempt to reduce its financial contributions for some joint tasks (Benz 1989). But without offering any compensation to the states, this initiative was doomed. The change of government to a CDU/CSU-FDP coalition under Chancellor Helmut Kohl did not affect the established patterns of federal governance either. It was particularly during this phase that German federalism showed a high degree of adaptability (Hesse and Benz 1990, pp. 152–158).

5 In 1994, the governments of Berlin and Brandenburg agreed to merge their two states. However, this plan was rejected in a referendum in 1994 (von Beyme 2019, pp. 89–92).

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At the beginning of the 1990s, two major events had a lasting impact on the federal order. First, the two German states united on 3 October 1990. Formally, reunification was accomplished according to Article 23 of the Basic Law (old version) with the accession of the five East German states that had been re-established after the peaceful revolution in the GDR (Brandenburg, Mecklenburg–West Pomerania, Saxony, SaxonyAnhalt and Thuringia). As a result, the number of German states rose from 11 to 16. At the same time, socioeconomic disparities between the states increased. Since this more fragmented and heterogeneous constellation of political actors would foreseeably affect the functioning of cooperative federalism, Article 5 of the Unification Treaty included the provision that Bundestag and Bundesrat were to deal with the need to amend the Basic Law “relating to the relationship between the federation and the states” within the next two years. Second, the Treaty of Maastricht was adopted in December 1991. It founded the European Union and transferred a number of significant legislative powers to the EU level (Chapter 3.1). This major step in the Europeanisation process intensified the already ongoing debate about the repercussions of European integration for German federalism in general and the German states in particular (Hrbek 1986). The states also relinquished legislative powers to the supranational level and had to implement EU policies, but only the federal government had a seat with voting rights in the Council of Ministers at the EU level. Therefore, the question of how the states could be compensated for their loss of competences became increasingly urgent (Chapter 11.3). Since the Treaty of Maastricht was to come into force at the beginning of 1993, its ratification coincided with the envisaged federal reform due to German unification. The reform of the Basic Law was prepared by a Joint Constitutional Commission consisting of 32 members each from the Bundestag and the Bundesrat and requiring a two-thirds majority for its decisions (Bremers 2001; Grotz 2013, pp. 337–339). Thus, the main actors of cooperative federalism—the government majority in the Bundestag and the state governments in the Bundesrat—remained within their own circle; neither the state parliaments nor civil society were involved in the constitutional reform. Ultimately, the changes to the federal order that were enshrined in the Basic Law in 1994 were only selective. A far-reaching constitutional reform would have been difficult so soon after reunification anyway, given that parliament and government were fully occupied with the economic and social transformation in East Germany. The main

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reason why the reforms had such a modest outcome was, however, that the state governments had very diverse interests. Although they had coordinated in a Bundesrat Commission for Constitutional Reform before the Joint Constitutional Commission had even convened, they had failed to develop common positions on a revised fiscal constitution or decentralisation of legislative powers. Instead, they demanded more precision regarding the conditions for federal powers over concurrent legislation (Art. 72, para. 2 GG). Therefore, the criterion of “unity” of living conditions was replaced with “equality”, which was intended to take the increased heterogeneity between the states into account. Furthermore, the state governments agreed that their constitutional rights of co-determination should be as extensive in EU affairs as they were in domestic matters. Therefore, the completely revised Article 23 of the Basic Law made provisions for the Bundesrat to have far-reaching competences in EU-related policy-making (Chapter 11.3). In parallel to the work of the Joint Constitutional Commission, in June 1993, the federal and state governments agreed on the distribution of the financial burdens caused by reunification. Within Solidary Pact I (Solidarpakt I ), which replaced the e82.4bn German Unity Fund (BMWi 2020) and had a running time of 10 years (1995–2004), the new states in East Germany were included in the fiscal equalisation scheme. In addition, the federal government committed to providing additional supplementary payments in order to ensure that all states had homogenous financial strength (Renzsch 1994). The East German states and municipalities received transfer payments of e106bn from Solidarity Pact I, paid by the federal government and the West German states (BMWi 2020). This demonstrates that cooperative federalism was capable of dealing with the enormous financial demands caused by German reunification (Jeffery 1995, pp. 267–268). However, the debate about federal reform did not die down. Since the mid-1990s, a neoliberal discourse stressed the problems of Germany as an investment location (Standort Deutschland). In this context, the structures of cooperative federalism were considered a stumbling block for economic competitiveness (Fischer and Große Hüttmann 2001, pp. 131– 135). The governments of the economically powerful Southern German states, led by the Christian Democrats (Bayern, Baden-Württemberg, Hesse), also took this position. They hoped to gain a lot from separating legislative powers and financial resources between the federal and state level. Therefore, they brought a case against the existing fiscal equalisation

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scheme at the Federal Constitutional Court in 1998. At the same time, they demanded a revision of the vertical order of competencies according to the model of “competitive federalism”. The ruling by the Federal Constitutional Court of November 1999 found in favour of the plaintiffs and requested a “standards law” to define clear criteria for fiscal equalisation. In 2001, the federal and state governments complied with this ruling and also agreed on an extension of the Solidarity Pact (Solidarpakt II ), which granted the East German states funding of e156bn from 2005 to 2019 (BMWi 2020). Again, the federal government provided additional resources in order to deescalate the distribution conflict between “richer” and “poorer” states. Nevertheless, the governments of the Southern German states continued to insist on a substantial decentralisation of legislative powers because they were hoping to distinguish themselves in the eyes of their voters through this gain in autonomy (Knodt 2002, p. 225). The strong veto powers of the Bundesrat also attracted increasing criticism. After the Bundesrat majority, led by the SPD, prevented a tax reform planned by the CDU/CSU-FDP federal government, there were serious discussions about limiting the second chamber’s “blocking power” (Lhotta 1998). This debate continued when the states led by the CDU/ CSU held a majority in the Bundesrat from 2002 onwards and forced core legislative projects from the SPD-Green federal government into the mediation committee (Chapter 11.2). Since both the SPD and the CDU/ CSU thought they had a good chance of leading the next federal government after the upcoming elections, there was a broad agreement among the parties in the Bundestag on weakening the Bundesrat’s veto powers (Renzsch 2004, pp. 96–97). In June 2003, the federal and state governments decided to establish a joint Commission for the Modernisation of the Federal Order (CMFO). With 16 members each from the Bundestag and the Bundesrat, supplemented by advisory members from the state parliaments (six), the federal government (four) and local government associations (three), its composition was similar to that of the Joint Constitutional Committee. The major goal of the CMFO was to “disentangle” the federal order, which seemed to be an advantageous deal for both sides (Grotz and Poier 2010, pp. 243–244). While the economically strong states hoped to benefit from gaining legislative powers, the federal government sought to increase its room for manoeuvre by curbing the Bundesrat’s veto power. On this

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basis, the CMFO managed to propose a number of constitutional amendments that could have found consensus. Nevertheless, it was dissolved in 2004 without producing an overall result because the SPD-Green federal government and the states led by the CDU/CSU could not agree on the distribution of legislative powers in education policy. But when a grand coalition between CDU/CSU and SPD was formed after the 2005 Bundestag elections, the federal reform made an unexpected comeback. In spring 2006, the Bundestag and Bundesrat passed the CMFO’s proposals without major changes; most open issues were now resolved in favour of the states. This Federalism Reform I was not only the most extensive amendment of the Basic Law so far; it also deviated from the previous path, which had strengthened the joint decision-making structure because it provided for a moderate disentanglement of the federal order (von Blumenthal 2010). Framework legislation was abolished (Art. 75 GG) and the construction of universities and educational planning was cut from the list of joint tasks (Art. 91a and 91b GG). The latter points, in particular, were a huge success in the eyes of the state governments led by the CDU/CSU, since they pushed back federal powers in educational policy substantially. This part of the reform was also described as a “prohibition on cooperation”, although cooperation between federal and state governments was still possible on a more limited scale. Some areas of concurrent legislation were transferred to the exclusive authority of the Bund (e.g. registration of residence and ID cards, arms and explosives law, nuclear energy legislation), others were transferred to the states (e.g. right of assembly, care homes, retail opening hours, civil servants’ salaries). In addition, certain matters in concurrent legislation were no longer subject to the necessity clause according to Article 72, paragraph 2 of the Basic Law (criminal law, public welfare and commercial law), which enhanced the federal government’s scope to act. Conversely, the states now had the option to diverge from federal legislation in some areas (e.g. hunting, protection of nature and regional planning; Art. 72, para. 3 GG). The veto powers of the Bundesrat were to be reduced through a revision of Article 84, paragraph 1 of the Basic Law, which now made provision for a states’ right to diverge from administrative directives specified under federal law. This constitutional change aimed at decreasing the overall share of “co-determined” legislation. At the same time, Art. 104a, paragraph 4 of the Basic Law now prescribed the Bundesrat’s consent for federal laws that oblige the states to provide grants from

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their own budget. Altogether, the proportion of co-determined legislation was reduced from over 50% to between 35 and 40%. But the Bundesrat retained its absolute veto power over all significant legislation with financial impact (Reus and Zohlnhöfer 2015). Finally, there were two amendments relating to EU affairs. First, the federal and state governments were obliged to jointly fulfil the provisions on budgetary discipline prescribed by European law (Art. 109, para. 5 GG; Chapter 11.1). Second, the rights of the Bundesrat in the EU Council of Ministers were limited to the “areas of school education, culture or broadcasting” (Art. 23 para. 6 GG; Chapter 11.3). Immediately after passing Federalism Reform I, the federal and state governments agreed on a second step of reform that focused on the restructuring of fiscal federalism. For this, the Bundestag and Bundesrat established another commission in 2006 with a similar organisational structure to the CMFO. Again, the guiding principle of the reform was to be disentanglement. More concretely, the commission was to map out constitutional amendments that would lead to an “enhanced responsibility and autonomy of the territorial bodies” and “financial resources appropriate for the tasks” (quoted in ZSE-Redaktion 2008, p. 382). However, given the highly diverging interests of the participants, it soon became apparent that the shared taxation system and the fiscal equalisation scheme would largely remain unchanged. Therefore, the commission focused on enshrining a “debt brake” in the constitution. But even in this respect, no progress was made for a long time. Only “under the pressure of the financial crisis” (Oettinger 2009, p. 13) was a compromise reached in the spring of 2009. This was embodied in the Basic Law a few weeks later. The main amendment made by Federalism Reform II was the limitation of borrowing by the Bund and the states (debt brake; Art. 109 and 115 GG; Sect. 4.1). For the five states in particularly precarious budgetary situations, consolidation aid by the federal government was foreseen (Art. 143d, para. 2 and 3 GG). In addition, the Bund now had the right to grant financial aid to the states “in the case of natural disasters or exceptional emergency situations” even without having legislative authority (Art. 104b, para. 1 GG). Moreover, the amendments enabled cooperation opportunities in IT (Art. 91c GG, new version) and administrative performance comparisons (Art. 91d GG, new version). The latter aspect, in particular, was reminiscent of the model of competitive federalism. However, the federal government and the states could not agree

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on either topics or procedures for such performance comparisons (Benz 2019a, p. 95). Thus, the 2009 amendments to the Basic Law did not break with the guiding principles of cooperative federalism (Benz et al. 2016, p. 308). After 2006, the states used their new legislative powers in different ways (Hildebrandt and Wolf 2016). This is particularly evident in the legislation on civil service and care homes but also for most of the other matters like criminal law or retail opening hours, which had been reassigned to the states (Reus and Vogel 2018). Moreover, economically powerful states like Bavaria have shown an increasing readiness “to pass their ‘own’ laws and shape their own policies independently” (Sack and Töller 2018, p. 609). In some instances, the new order of legislative powers proved to be controversial. For example, the SPD-Green government in the city-state of Berlin passed a law in early 2020 that set a “rent cap” for most apartments in the capital. However, the FDP and CDU/CSU brought a case against this law before the Federal Constitutional Court, arguing that the Bund continued to have the right to legislate in this area. In April 2021, the court did indeed declare the Berlin rent cap unconstitutional not because of its content but because the state parliament did not have the legislative authority. Despite the constitutional reforms described above, policy variance between the states has only moderately increased (Jeffery and Pamphilis 2016). Most legislative powers gained by the states pertain to very narrowly defined matters “that do not directly affect other policy fields” (Reus and Vogel 2018, p. 641). Moreover, diverging legal regulations do not always result from the policy agenda of state governments but rather reflect their budgetary situation. A case in point is the legislation on civil servants’ salaries, which has been a state competence since 2006. By now, states with high public debt have increased the salaries of their civil servants to a much lesser degree than states with less debt (Dose et al. 2020, p. 36). Given the constitutional debt brake and the lack of revenue autonomy, the financially weaker states decided to set lower salaries in order to maintain sufficient staff numbers and, at the same time, observe budgetary discipline. Given the limited financial means of many states, a “re-entanglement ” in education and science policies took place (Kropp and Behnke 2016, pp. 673–677). The federal government and the states agreed on several programmes for joint funding of university research and teaching (Pact

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for Research and Innovation, 2005; Higher Education Pact, 2007; Excellence Initiative, 2009). Since 2014, a constitutional amendment has explicitly re-enabled the federal and state governments to permanently cooperate in the fields of science, research and university teaching “in cases of supra-regional importance”, although “agreements primarily affecting institutions of higher education” need the approval of all states (Art. 91b, para. 1 GG). Furthermore, the federal government has undertaken to bear the costs of student grants regulated by the Federal Law concerning the Promotion of Education or Training (BAföG). In May 2019, the Bund and the states decided to fund digitalisation in schools in the amount of e5bn from federal resources. This Digital Pact was preceded by lengthy negotiations in which the government of BadenWürttemberg’s prime minister Winfried Kretschmann (The Greens) spoke out against the participation of the federal level, while the Bundestag majority demanded stricter spending scrutiny vis-à-vis the state governments (Träger 2019). Eventually, the Basic Law was amended to facilitate federal financial aid for “improving the efficiency of municipal education infrastructure” (Art. 104c GG). The most recent reform of the fiscal constitution enhanced the trend towards re-entanglement. Because the fiscal equalisation scheme expired at the end of 2019, a new regulation was constitutionally mandated. This time, the federal and state governments were unable to agree on a joint commission. Instead, the ministers of finance and heads of government negotiated the reform. Initial proposals for a limited fiscal disentanglement did not find sufficient support (Benz 2017, p. 403). Eventually, fiscal equalisation was restructured in 2017. This reform simplified the equalisation procedures to some extent but failed to achieve far-reaching changes (Gamper 2017). Again, the federal government made financial concessions, which resolved the distribution conflict between the richer and the poorer states. In return, the Bund received the competences for motorway administration. This measure did not lead to administrative disentanglement but to “two parallel systems freshly entangled with each other” (Fischer and Pennekamp 2018, p. 453), i.e. the federal administration of the motorways and the state administrations of secondary roads. In other words, this administrative reform generated considerable costs in the short term while the hoped-for synergies in the medium term are quite uncertain (PNP 2019). Finally, the crisis management during the COVID-19 pandemic illustrated the advantages and problems of cooperative federalism. When the

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Sars-CoV-2 virus arrived in Germany in early 2020, the federal order was ill-equipped to deliver an effective response to the repercussions caused by the pandemic (Kropp 2020). The states had the general authority over emergency policy, and each had its own disaster management law. In contrast, the federal minister of health could only make relevant recommendations to the states. Nevertheless, the federal and state governments agreed relatively quickly on consistent lockdown regulations, even if their implementation did vary considerably (Behnke 2020, p. 13). In this situation, the structures and procedures of cooperative federalism proved to be efficient and created a public image that there was a broadly supported consensus of all political actors in charge. Restrictions on interpersonal contact and curfews were enacted as directives by the state governments (and therefore without the participation of state parliaments), but they were in fact based on the nationwide Infection Protection Act, which was updated “in a record-breaking few days” (Kropp 2020). Moreover, in response to the pandemic, the Bundesrat approved the most extensive aid and support package in the history of the federal republic; it also agreed to tax relief, provided a time-limited reduction on VAT and supported the EU measures for crisis management (Bundesrat 2020a, 2020b). The states cooperated closely with the federal government, enabling fast-track legislation by waiving the usual consultation periods (Bundesrat 2020b). However, the rapidity of these decisions led to considerable implementation problems and difficulties in identifying cases of fraud among the numerous applications by solo entrepreneurs and small business owners (Abbas et al. 2020). While federal COVID policies were highly coordinated until autumn 2020, an increasing “diversity of voices” emerged after that. The reasons for this were differences in the problems faced by individual states and the uneven impact of the pandemic, but also the political manoeuvres by individual state prime ministers and their governments, who wished to raise their profile ahead of upcoming elections. Hence, it became more and more difficult to understand “the diversity of rule changes in the states and the contradictory rationales behind them” (Kropp 2020). The coordination problems between the federal government and the states reached a peak in March 2021, when Chancellor Angela Merkel and the state prime ministers decided to impose a relatively spontaneous “Easter shutdown”, which they had to retract shortly afterwards due to legal issues. In view of the massive public criticism of the way this decision had been

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made, the state governments agreed to another amendment to the Infection Protection Act, which stipulated that lockdown measures would now apply consistently across Germany if new infections rose above certain thresholds. Although the COVID-19 pandemic was largely over by the end of 2022, it is still too early to take stock of the federal crisis management. Regardless of that, the performance of cooperative federalism will be assessed in the years to come based on how the federal government, the states and the municipalities deal with the immense financial costs of the pandemic and those caused by the economic and energy crisis that resulted from the Russian invasion of Ukraine in February 2022. When the impact of these crises vanishes, other challenges to the federal order will come into focus again, such as the transformation of the energy supply towards a “green economy and society”, domestic security and cybercrime, money laundering and financial crime and the digitalisation of administrative services.

4.3

Horizontal Cooperation Between the States

The states are not legally obliged to collaborate in policy areas where they have autonomous legislative or administrative authority. The Basic Law contains very few general standards for intergovernmental cooperation, such as the obligation to provide mutual legal and administrative aid (Art. 35, para. 1 GG), to offer support in the case of natural disasters or grave accidents (Art. 35, para. 2 GG) and to ensure police cooperation when the free democratic basic order is in danger (Art. 91, para. 1 GG). Nevertheless, there are many different forms of voluntary cooperation between the states because they have various motives for engaging in these. First, the states may seek to ensure a high uniformity of regulation standards in areas like education, since this is what the overwhelming majority of citizens prefer (Petersen and Grube 2017). Moreover, they can resolve cross-border issues through administrative coordination and thus avoid giving any pretexts for federal intervention (Kropp 2010, pp. 130–131). Furthermore, the various intergovernmental committees fosters a continuous exchange of information and experience and therefore enables mutual learning. Finally, continuous interstate cooperation facilitates the development of shared political positions. Most areas of horizontal cooperation between the states are based on legal agreements (Kropp 2010, p. 135). These include administrative

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agreements, where the state governments establish supra-regional planning projects or set up joint organisations. They also include interstate treaties subject to approval by the state parliaments, such as the State Treaty on Media, which regulates the operation of the public broadcasters like ARD and ZDF (Chapter 8.1). One of the first agreements in this regard was the Königstein Treaty signed by the West German states in 1949 (Hohn 2016, pp. 555–556). It regulated the joint funding of non-university research institutes and was replaced in 1977 by the Blue List of supra-regional research institutes, which were partly funded by the federal government according to Article 91b of the Basic Law and renamed the Leibniz Association in 1997. Even more impactful was the joint funding formula of the Königstein Treaty, according to which the respective state contributions are calculated. The proportion is based on two-thirds of tax revenues and one-third of population numbers. This Königstein key was used on many occasions afterwards and was even retained after reunification. Currently, the Königstein key assigns contribution proportions between 21.1% (North Rhine-Westphalia) and 1.0% (Bremen; see GWK 2018). It is used in more than 100 individual cases, for example, for staff allocations to international police missions (Wehe 2017, p. 1214), the allocation of asylum seekers (Bartl 2019) or the allocation of resources in the Digital Pact for Schools (Scheller 2019, p. 15). Hence, the distribution of costs and resources in interstate cooperation is heavily institutionalised, although there are no relevant constitutional provisions. Interstate cooperation primarily takes place on the governmental level. The most important arena is the Conference of Prime Ministers (Ministerpräsidentenkonferenz; MPK), where the heads of government of the 16 states regularly meet four times per year. It is not a constitutional body and not codified in the Basic Law either. Nevertheless, it has its own procedural rules and is chaired by one of the prime ministers in a fixed annual sequence. The MPK has its origins in the Zonal Advisory Council, where the heads of government came together during the time of the Allied occupation (Martens 2003, pp. 5–7). In 1948, it established the Constitutional Convention of Herrenchiemsee but then no longer had direct influence over the work of the Parliamentary Council. After the foundation of the Federal Republic of Germany, the MPK only became a permanent institution after it became clear that not all staterelated issues could be adequately solved within the framework of the Bundesrat (Martens 2003, p. 17). The MPK deals with key issues of

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state policies, such as the reform of federalism and fiscal relationships, EU affairs as well as education policy and internal security. Decisions by the MPK are not legally binding, but they have a high degree of political reliability (Martens 2003, p. 36). The required quorum for decisions was relaxed in 2004 from unanimous consent to a qualified majority (13 of 16 votes) in order to enhance its efficiency and effectiveness (Kropp 2010, p. 136). To avoid coordination problems, the MPK does not discuss draft proposals under consideration by the Bundesrat. Preliminary agreements about legislative issues are, however, possible and even common (Hegele and Behnke 2013, p. 539). As also occurs in relation to the Bundesrat, in the MPK, the prime ministers of the so-called “A states” (those led by the SPD) and those of the “B states” (led by the CDU/CSU) meet separately before the plenary sessions to agree their positions. Besides that, there are regular meetings of smaller coordination rounds, like the MPK East, composed of the prime ministers of the five East German states and Berlin. Just like the MPK, the government departments of the states have their own coordinating committees. These ministers’ conferences are structured in a similar way but vary depending on their tasks and their political importance (Hegele and Behnke 2013). The Standing Conference of the Ministers of Education and Cultural Affairs (Kultusministerkonferenz, KMK) is particularly prominent. Founded as early as 1948, it has its own administration, with around 220 staff, who also take responsibility for tasks like the recognition of foreign school graduation certificates and who coordinate the Educational Exchange Service (KMK 2015, pp. 10–11). The KMK discusses all political issues in the area of education, science and culture of cross-state significance. It also coordinates the states’ foreign culture policy and international educational cooperation. Decisions by the KMK are not legally binding, but they are usually followed and implemented by the state administrations. The KMK has also been frequently criticised because of its powerful position. In 2004, there was uproar when the prime minister of Lower Saxony, Christian Wulff (CDU), threatened that his state would leave the KMK because it only produced decisions on the lowest common denominator due to the principle of unanimous consent and did not meet the needs of individual states. Eventually, the voting quorum of the KMK, just as in the MPK, was changed from unanimous consent to a qualified majority (13 of 16 votes), and Lower Saxony remained a member (Kropp 2010, pp. 141–143).

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The Conference of Ministers of the Interior (Innenministerkonferenz; IMK) is also highly relevant. It mainly deals with the task of creating consistent security standards nationwide (Hofmann 2018, p. 64). As in the other ministers’ conferences, the relevant federal minister takes part as well (Hegele and Behnke 2013, p. 23). The various preparatory discussions also include members of the government fractions from the Bundestag (Kropp 2010, p. 141). The rationale for this broad composition is the fact that the ministers’ conferences deal with a wide range of issues. They do not just coordinate relevant state legislation but also explore the options for building majorities on nationwide projects, exchange information about administrative implementation, direct funding requests to the federal government and seek support for the states’ positions on EU matters. Hence, the intergovernmental cooperation is an integral part of the structures of joint decision-making. It thus only partially serves to protect the political autonomy of the individual states in the multi-level system (Hegele and Behnke 2017, pp. 537–538). The multitude of intergovernmental committees also leads to overlapping competences, which affects the transparency and efficiency of political decision-making. A case in point is the Conference of Ministers for European Affairs (Europaministerkonferenz, EMK) which was founded in 1992. Its tasks do not only overlap with most of the other ministers’ conferences but also with the MPK, which coordinates state government guidelines relating to EU policies. The added value of the EMK is therefore limited to its role as a platform for information and generating creative ideas on EU issues (Schöne 2018, pp. 339–340). Besides the intergovernmental committees, there is a wide range of cross-border administrative cooperations that some states have initiated to resolve specific problems. This includes linked transport systems in order to develop metropolitan regions around the city-states of Berlin, Bremen and Hamburg, joint facilities for flood prevention or overseas promotion campaigns that increase the visibility of individual states as industrial locations (Benz et al. 2015, p. 22). Cooperations between sectoral administrations in neighbouring states are often at a more advanced stage than cooperations between the state governments. At the same time, administrative cooperations may be less stable, since they take place “in variable, functionally defined spaces” and include “partners from different areas” (Benz et al. 2015, p. 24). Finally, there are various formats of cooperation between state parliaments (Kropp 2010, pp. 199–204). In German federalism, the state

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parliaments are in a particularly difficult situation. Although they are the only directly elected institution at the state level, the Basic Law endows them with very few autonomous areas of legislation. These are further limited by increasing Europeanisation and the political agreements made in the ministers’ conferences. A core goal of inter-parliamentary cooperation is therefore to strengthen their position in the German multi-level system and in the EU and to communicate their interests to the public. Against this backdrop, the Conference of Presidents of State Parliaments holds its annual meeting, which is also attended by the presidents of the Bundestag and the Bundesrat. This body has frequently called for stronger participation by the state parliaments in reforms of the federal order. In 2003, it even convened a Convention of State Parliaments, which demanded an extensive decentralisation of legislative powers (Thaysen 2004). However, this initiative only had limited success. In addition, the leaders of the individual party groupings in the Bundestag and the state parliaments have their relevant conferences to coordinate their party positions. Furthermore, several state parliaments organise joint committee meetings in order to exchange information and launch joint projects. Finally, German state parliaments also participate in various international organisations and networks. For instance, subnational parliaments from eight EU countries have established the Conference of the European Regional Legislative Assemblies, which deals with issues of regional solidarity and democracy (CALRE 2018). However, this forum has not had much impact so far; representatives of German state parliaments have therefore become less eager to participate (Bußjäger 2015, pp. 320–322).

4.4 Conclusion: Functional or Immobile State Organisation? Governance in German federalism is shaped by two basic features. On the one hand, the structures of joint decision-making force the federal and state governments to work together in order to fulfil their most important tasks. Legislation mainly takes place at the federal level, but it largely depends on the consent of the state governments in the Bundesrat. Most federal laws are executed autonomously by the state administrations but they often contain detailed prescriptions for administrative implementation. In addition, the federal government has influence over several policy areas under state authority through its financial contributions and investment aid. Finally, the collection and distribution of most taxes are jointly

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determined. Thus, the political autonomy of both the Bund and the states is very limited. On the other hand, cooperative federalism aims to create equal living conditions nationwide. Thus, unitarism is the guiding principle for policy-making that justifies the federal influence on a broad range of legislative matters (Art. 72, para. 2 GG) and the high degree of levelling-out by the fiscal equalisation scheme (Art. 106, para. 3 GG). The preference for uniform standards is also rooted in large parts of German society (Petersen and Grube 2017). Moreover, new challenges, such as defence against terrorism, the transformation of energy supply or the digitalisation of public administration, call for nationwide solutions. Therefore, the state governments do coordinate among themselves as well as with the federal government, even in those policy areas where they are formally autonomous. From the early 1950s to the late 1980s, the structures of joint decisionmaking were cultivated and expanded because this was in the interests of all the major actors involved. Reunification and Europeanisation marked a watershed in this respect, since the increase in territorial heterogeneity suggested a need to disentangle the federal order (Sturm 2007). In 2006, Federalism Reform I took this demand into account, albeit in a limited fashion. Nevertheless, cooperative federalism remained largely in place— the states’ new legislative powers were limited to very few matters and only engendered a “soft, sectoral competitive federalism” (Hildebrandt and Wolf 2016, p. 392). In addition, the debt brake, agreed in 2009 in Federalism Reform II, constrained the states in fiscal terms and thus hampered them in fulfilling their political tasks effectively. Therefore, new tendencies of centralisation and re-entanglement have emerged during the last decade (Benz 2017, p. 410). Overall, the performance of German federalism mirrors the typical advantages and problems of consensus democracy arrangements (Kropp 2010, pp. 237–243; Benz 2019b). On the one hand, the intense cooperation between the federal and the state governments has led to homogenous standards in key policy areas, an outcome preferred by the vast majority of German citizens. Through their steady interaction in federal committees, political and administrative elites from the Bund and the states are highly integrated and well-informed. This increases their willingness to compromise and favours mutual learning, which helps to avoid political obstruction. In addition, the expansion of the welfare state, which provides uniform standards throughout Germany, has contributed

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to mitigating territorial conflicts between central and peripheral regions. Moreover, German federalism has been able to react to critical events and has also been capable of adapting to a changing environment. For instance, the federal and state governments managed to agree on sharing the immense financial burden caused by unification, and they coordinated fairly well during the COVID-19 pandemic, when they quickly decided on the largest aid package in the history of the federal republic. On the other hand, German federalism has been criticised for its poor efficiency and effectiveness (Scharpf 2009, pp. 30–44). One of these issues relates to the negative incentives resulting from the levelling-out effect of fiscal equalisation (Hofmann 2009). It is not advantageous for the “donor states” to conduct ambitious reform policies, and the “receiver states” likewise do not benefit from being economically successful. Additionally, cooperative federalism suffers from a considerable transparency deficit. Due to the diversity and complexity of intergovernmental committees, major parts of policy-making take place “in the shadow of the public”. It is therefore almost impossible for the voters to clearly allocate political responsibilities. Finally, most coordination across and within the levels of government is carried out by the executives, while the directly elected parliaments at federal and state levels often seem to lose out. There have been plenty of reform proposals for improving the performance of German federalism. Some of them are already decades old but are nevertheless revived from time to time. One reiterated issue is the new delimitation of the federal territory (Benz et al. 2015, pp. 19– 21). Its advocates hope to create fewer states of comparable size and similar performance, which would make them cooperate more effectively and efficiently. Merging the city-states with their surrounding states would doubtlessly resolve various problems of regional governance and increase efficiency in the medium term. However, such a territorial reform would probably not find the necessary approval, more so as all the states concerned would have to hold legally binding referenda (Art. 29, para. 3 GG). But even then, it would probably not make the cooperation between the new, larger states in North and East Germany and the economically powerful states in the South more harmonious or effective. Therefore, the state administrations have launched many cross-border cooperations that can be considered functional equivalents to a restructuring of the federal territory. Another main issue in the debate on federal reform is the clear separation of tasks between the federal and state level, which might enhance

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the transparency of democratic decision-making and strengthen the state parliaments at the same time (Sturm 2015, pp. 316–317). For instance, the states could receive more rights to diverge from federal legislation, which might enhance the flexibility of federal governance under the condition of increased territorial heterogeneity (Schultze 2004). However, the experience of Federalism Reform I shows that the substantial decentralisation of legislative powers in education and research policy created financial repercussions that eventually led to increased intergovernmental cooperation (Benz 2019b, p. 79). Each legislative disentanglement would therefore have to be accompanied by more flexibility in the fiscal constitution. But as long as the “uniformity of living standards” is a major constitutional target of fiscal equalisation (Art. 106, para. 3 GG), it seems almost impossible to diverge significantly from the current degree of financial levelling (Kropp and Sturm 2015, p. 99). Hence, the idea of a “unitary federalism” (Hesse 1962) would have to be abandoned before a far-reaching disentanglement could take place. Since such a scenario would not be supported by a majority of citizens or political decisionmakers, German federalism will only experience incremental reforms in the foreseeable future.

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Gemeinsame Wissenschaftskonferenz (GWK). (2018). Bekanntmachung des Königsteiner Schlüssels für das Jahr 2018. Bundesanzeiger, Amtlicher Teil vom 6. November 2018, B4 Geske, O.-E. (2007). Der bundesstaatliche Finanzausgleich in der Rechtsprechung des Bundesverfassungsgerichts. Der Staat, 46(2), 203–228 Grotz, F. (2007). Europäisierung und nationale Staatsorganisation: Institutionenpolitik in föderalen und unitarischen EU-Staaten. Baden-Baden: Nomos Grotz, F. (2013). Pfadabhängigkeit oder Wandel? Drei „große Anläufe“ zur Reform des Föderalismus. In E. Jesse (Ed.), Eine normale Republik? (pp. 327– 346). Baden-Baden: Nomos Grotz, F., & Poier, K. (2010). Zwischen Gemeinschaftsprojekt, Tauschgeschäft und Symbolpolitik: die Initiativen zu Bundesstaatsreformen in Deutschland, Österreich und der Schweiz. Zeitschrift für Vergleichende Politikwissenschaft, 4(2), 233–259. https://doi.org/10.1007/s12286-010-0085-7 Hacke, C. (2012). Grundsätze der Steuerpolitik. Informationen zur politischen Bildung (288), 4–11 Hegele, Y., & Behnke, N. (2013). Die Landesministerkonferenzen und der Bund—Kooperativer Föderalismus im Schatten der Politikverflechtung. Politische Vierteljahresschrift, 54(1), 21–49. https://doi.org/10.5771/00323470-2013-1-21 Hegele, Y., & Behnke, N. (2017). Horizontal Coordination in Cooperative Federalism: The Purpose of Ministerial Conferences in Germany. Regional & Federal Studies, 27(5), 529–548. https://doi.org/10.1080/13597566.2017. 1315716 Heinemann, A. W. (2017). Dauerhafter vertikaler Finanzstreit zwischen Bund und Ländern: Das Beispiel der Übertragung der Kfz-Steuer auf den Bund. Wirtschaftsdienst, 97(3), 207–212. https://doi.org/10.1007/s10273-0172109-2 Heinz, D. (2016). Coordination in Budget Policy After the Second Federal Reform: Beyond Unity and Diversity. German Politics, 25(2), 286–300. https://doi.org/10.1080/09644008.2016.1165211 Hesse, J. J., & Benz, A. (1990). Die Modernisierung der Staatsorganisation. Institutionspolitik im internationalen Vergleich: USA, Großbritannien, Frankreich, Bundesrepublik Deutschland. Baden-Baden: Nomos Hesse, J. J., & Ellwein, T. (2012). Das Regierungssystem der Bundesrepublik Deutschland (10th ed.). Baden-Baden: Nomos Hesse, K. (1962). Der unitarische Bundesstaat. Karlsruhe: Müller Hildebrandt, A., & Wolf, F. (2016). Länderpolitik revisited. Zwei Föderalismusreformen und ihre Folgen. In A. Hildebrandt, & F. Wolf (Eds.), Die Politik der Bundesländer (2nd ed., pp. 391–399). Wiesbaden: Springer VS Hofmann, H. (2009). Zukunftsfähigkeit des deutschen Bundesstaats. In R. T. Baus, H. Scheller, & R. Hrbek (Eds.), Der deutsche Föderalismus 2020 (pp. 95–103). Baden-Baden: Nomos

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Hofmann, H. (2018). Die bundesstaatliche Architektur der inneren Sicherheit: Status und Reformoptionen im deutschen Mehrebenensystem der Sicherheitsarchitektur. In Europäisches Zentrum für Föderalismus-Forschung (Ed.), Jahrbuch des Föderalismus 2018 (pp. 51–66). Baden-Baden: Nomos Hohn, H.-W. (2016). Governance-Strukturen und institutioneller Wandel des außeruniversitären Forschungssystems Deutschlands. In D. Simon, A. Knie, S. Hornbostel, & K. Zimmermann (Eds.), Handbuch Wissenschaftspolitik (2nd ed., pp. 549–572). Wiesbaden: Springer VS Hrbek, R. (1986). Doppelte Politikverflechtung: Deutscher Föderalismus und Europäische Integration. Die deutschen Länder im EG-Entscheidungsprozeß. In R. Hrbek, & U. Thaysen (Eds.), Die deutschen Länder und die Europäischen Gemeinschaften (pp. 17–31). Baden-Baden: Nomos Jeffery, C. (1995). The Non-reform of the German Federal System After the Unification. West European Politics, 18(2), 252–272. https://doi.org/10. 1080/01402389508425071 Jeffery, C., & Pamphilis, N. M. (2016). Myth and Paradox of ‘Uniform Living Conditions’ in the German Federal System. German Politics, 25(2), 176–192. https://doi.org/10.1080/09644008.2016.1164843 Kilper, H., & Lhotta, R. (1996). Föderalismus in der Bundesrepublik Deutschland: Eine Einführung. Opladen: Leske + Budrich Knodt, M. (2002). Europäisierung regionalen Regierens: Mit Sinatra zum „autonomieorientierten“ Systemwechsel im deutschen Bundesstaat? Politische Vierteljahresschrift, 43(2), 211–234. https://doi.org/10.1007/s11615-0020031-7 König, K., & Benz, A. (1997). Privatisierung und staatliche Regulierung: Bahn, Post und Telekommunikation, Rundfunk. Baden-Baden: Nomos Kropp, S. (2010). Kooperativer Föderalismus und Politikverflechtung. Wiesbaden: VS Kropp, S. (2020). Zerreißprobe für den Flickenteppich? Der deutsche Föderalismus in Zeiten von Covid-19. Verfassungsblog. Retrieved July 24, 2020, from https://verfassungsblog.de/zerreissprobe-fuer-den-flickenteppich/ Kropp, S., & Behnke, N. (2016). Marble Cake Dreaming of Layer Cake: The Merits and Pitfalls of Disentanglement in German Federalism Reform. Regional & Federal Studies, 26(5), 667–686. https://doi.org/10.1080/135 97566.2016.1236335 Kropp, S., & Sturm, R. (2015). Reformperspektiven des föderalen Finanzausgleichs unter den Bedingungen der Politikverflechtung. In R. Geißler, F. Knüpling, S. Kropp, & J. Wieland (Eds.), Das Teilen beherrschen (pp. 95– 120). Baden-Baden: Nomos Kultusministerkonferenz (KMK). (2015). Ständige Konferenz der Kultusminister der Länder in der Bundesrepublik Deutschland. Broschüre. Retrieved August 19, 2020, from https://www.kmk.org/fileadmin/Dateien/bilder/KMK/Auf gaben/kmk_Imagefolder_web.pdf

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Lehmbruch, G. (2002). Der unitarische Bundesstaat in Deutschland. Pfadabhängigkeit und Wandel. In A. Benz, & G. Lehmbruch (Eds.), Föderalismus (53–110). Wiesbaden: Westdeutscher Verlag Lehmbruch, G. (2004). Strategische Alternativen und Spielräume bei der Reform des Bundesstaates. Zeitschrift für Staats- und Europawissenschaften, 2(1), 82– 93. https://doi.org/10.1515/zfse.2.1.82 Lenk, T., & Glinka, P. (2018). Daueraufgabe Deutsche Einheit—Die neuen Finanzregeln im Kontext bisheriger Konvergenzbestrebungen und -entwicklungen. Jahrbuch für öffentliche Finanzen, 2, 57–71 Lhotta, R. (1998). Der „lästige“ Föderalismus: Überlegungen zum konsensuellen „deadlock“ am Beispiel von Bundesstaat und Vermittlungsausschuss. In U. Männle (Ed.), Föderalismus zwischen Konsens und Konkurrenz (pp. 79–91). Baden-Baden: Nomos Lijphart, A. (2012). Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries (2nd ed.). New Haven, London: Yale University Press Martens, R. (2003). Die Ministerpräsidentenkonferenz. Würzburg: Ergon Mende, S. (2010). Kompetenzverlust der Landesparlamente im Bereich der Gesetzgebung: Eine empirische Analyse am Beispiel des Sächsischen Landtages. Baden-Baden: Nomos Oeter, S. (1998). Integration und Subsidiarität im deutschen Bundesstaatsrecht: Untersuchungen zu Bundesstaatstheorie unter dem Grundgesetz. Tübingen: Mohr Siebeck Oettinger, G. H. (2009). Föderalismuskommission II: Ergebnisse und Bilanz. Zeitschrift für Staats- und Europawissenschaften, 7(1), 6–13. https://doi.org/ 10.5771/1610-7780-2009-1-6 Passauer Neue Presse (PNP). (2019). Verkehrsminister Scheuer räumt explodierende Beraterkosten ein. Retrieved July 22, 2020, from https:// www.pnp.de/nachrichten/politik/Minister-Scheuer-raeumt-explodierendeBeraterkosten-ein-3475680.html Petersen, T., & Grube, N. (2017). Die Verlockung des Zentralismus: Paradoxe Einstellungen der Bevölkerung zum föderalen Staatswesen, seinen Institutionen und zur einheitlichen Bildungspolitik. In Europäisches Zentrum für Föderalismus-Forschung (Ed.), Jahrbuch des Föderalismus 2017 (pp. 295– 309). Baden-Baden: Nomos Pötzsch, H. (2009). Die deutsche Demokratie. Bonn: Bundeszentrale für politische Bildung Renzsch, W. (1991). Finanzverfassung und Finanzausgleich: Die Auseinandersetzungen um ihre politische Gestaltung in der Bundesrepublik Deutschland zwischen Währungsreform und deutscher Vereinigung (1948–1990). Bonn: Dietz

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Renzsch, W. (1994). Föderative Problembewältigung: Zur Einbeziehung der neuen Länder in einen gesamtdeutschen Finanzausgleich ab 1995. Zeitschrift für Parlamentsfragen, 25(1), 116–138 Renzsch, W. (2004). Was kann und soll die Föderalismuskommission? Zeitschrift für Staats- und Europawissenschaften, 2(1), 94–105. https://doi.org/10. 1515/zfse.2.1.94 Reus, I., & Vogel, S. (2018). Policy-Vielfalt zwischen den Bundesländern nach der Föderalismusreform I: Art, Ausmaß und Akteure. Zeitschrift für Vergleichende Politikwissenschaft, 12(4), 621–642. https://doi.org/10.1007/ s12286-018-0406-9 Reus, I., & Zohlnhöfer, R. (2015). Die christlich-liberale Koalition als Nutznießer der Föderalismusreform? Die Rolle des Bundesrates und die Entwicklung des Föderalismus unter der zweiten Regierung Merkel. In R. Zohlnhöfer, & T. Saalfeld (Eds.), Politik im Schatten der Krise (pp. 245–272). Wiesbaden: Springer VS Rokkan, S. (2000). Staat, Nation und Demokratie in Europa. Frankfurt am Main: Suhrkamp Sack, D., & Töller, A. E. (2018). Einleitung: Policies in den deutschen Ländern. Zeitschrift für Vergleichende Politikwissenschaft, 12(4), 603–619. https://doi. org/10.1007/s12286-018-0408-7 Scharpf, F. W. (2009). Föderalismusreform: Kein Ausweg aus der Politikverflechtungsfalle? Frankfurt am Main: Campus Scharpf, F. W., Reissert, B., & Schnabel, F. (1976). Politikverflechtung: Theorie und Empirie des kooperativen Föderalismus in der Bundesrepublik. Kronberg: Scriptor Scheller, H. (2019). „Digitalpakt Schule“. Föderale Kulturhoheit zulasten der Zukunftsfähigkeit des Bildungswesens? Aus Politik und Zeitgeschichte, 69(B27–28), 11–17 Schmidt, M. G. (2001). Thesen zur Reform des Föderalismus der Bundesrepublik Deutschland. Politische Vierteljahresschrift, 42(3), 474–491. https:// doi.org/10.1007/s11615-001-0075-0 Schöne, M.-L. (2018). Die Europaministerkonferenz der Länder: Europapolitische Willensbildung zwischen den Ländern und Wahrnehmung von Länderinteressen in Angelegenheiten der Europäischen Union. Baden-Baden: Nomos Schultze, R.-O. (2004). Bundesstaaten unter Reformdruck: Kann Deutschland von Kanada lernen? Zeitschrift für Staats- und Europawissenschaften, 2(2), 191–211. https://doi.org/10.1515/zfse.2.2.191 Schuppert, G. F. (2012). Föderalismus und Governance. In I. Härtel (Ed.), Handbuch Föderalismus (pp. 223–250). Berlin: Springer Statistisches Bundesamt. (2019a). Finanzen und Steuern: Realsteuervergleich— Realsteuern, kommunale Einkommen- und Umsatzsteuerbeteiligungen 2018.

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Retrieved July 14, 2020, from https://www.statistischebibliothek.de/mir/rec eive/DEHeft_mods_00124068 Statistisches Bundesamt. (2019b). Öffentlicher Dienst: Öffentlicher Gesamthaushalt und sonstige öffentliche Einrichtungen. Retrieved April 9, 2020, from https://www.destatis.de/DE/Themen/Staat/OeffentlicherDienst/Tabellen/gesamthaushalt-sonstige.html Sturm, R. (2007). Von der Symmetrie zur Asymmetrie—Deutschlands neuer Föderalismus. In Europäisches Zentrum für Föderalismus-Forschung (Ed.), Jahrbuch des Föderalismus 2007 (pp. 27–41). Baden-Baden: Nomos Sturm, R. (2015). Der deutsche Föderalismus: Grundlagen—Reformen—Perspektiven. Baden-Baden: Nomos Tappe, H., & Wernsmann, R. (2019). Öffentliches Finanzrecht (2nd ed.). Heidelberg: C.F. Müller Thaysen, U. (2004). Die Konventsbewegung zur Föderalismusreform in Deutschland: ein letztes Hurra der Landesparlamente zu Beginn des 21. Jahrhunderts? Zeitschrift für Parlamentsfragen, 35(3), 513–539 Träger, H. (2019). Der DigitalPakt Schule als Auslöser einer neuen Föderalismusdebatte. In Europäisches Zentrum für Föderalismus-Forschung (Ed.), Jahrbuch des Föderalismus 2019 (pp. 233–246). Baden-Baden: Nomos von Beyme, K. (2019). Hauptstadt Berlin: Von der Hauptstadtsuche zur Hauptstadtfindung. Wiesbaden: Springer VS von Blumenthal, J. (2010). Towards a New German Federalism? How the 2006 Constitutional Reform Did (Not) Change the Dynamics of the Federal System. In S. Bolgherini, & F. Grotz (Eds.), Germany After the Grand Coalition (pp. 31–48). Basingstoke, NY: Palgrave Wehe, D. (2017). Die Beteiligung der Bundesrepublik Deutschland an internationalen Polizeimissionen. In J. Stierle, D. Wehe, & H. Siller (Eds.), Handbuch Polizeimanagement (pp. 1205–1233). Wiesbaden: Springer Gabler Weichlein, S. (2012). Föderalismus und Bundesstaat zwischen dem Alten Reich und der Bundesrepublik Deutschland. In I. Härtel (Ed.), Handbuch Föderalismus (pp. 101–127). Berlin: Springer Weiß, W. (2017). Verfassungsgrundsätze, Kompetenzverteilung und die Finanzen der EU. Zeitschrift für Europarechtliche Studien, 20(3), 309–332. https://doi. org/10.5771/1435-439X-2017-3-309 Zabel, G. (1985). Die Entwicklung des Länderfinanzausgleichs in der Bundesrepublik Deutschland. In Akademie für Raumforschung und Landesplanung (Ed.), Räumliche Aspekte des kommunalen Finanzausgleichs (pp. 353–392). Hannover: Vincentz ZSE-Redaktion (2008). Die „Finanzthemen“ im Reformprozess: Kommissionsauftrag, Optionen, politische Diskussion. Zeitschrift für Staats- und Europawissenschaften, 6(3), 381–398

CHAPTER 5

Elections and the Electoral System

Elections are the central form of participation in representative democracies. While it is true that there are multiple options for political participation, it is through democratic elections that all citizens can express their political preferences with equality, visibility and effectiveness. In elections, citizens decide on who will hold top political office and choose between different manifestos and candidates. So how do the parliamentary elections in Germany help ensure the appropriate political representation of citizens? Do they produce the proportional representation typical for consensus democracy, which means representing societal interests in parliament according to their strength, or concentrated representation in line with majoritarian democracy, which facilitates the formation of effective government majorities? Against this background, Section 5.1 will discuss the institutional foundations of the elections to the German Bundestag, such as the legal provisions for the participation in elections, and the electoral system, which determines how votes are converted into parliamentary seats. Section 5.2 will deal with the socio-structural, socio-psychological and economic factors that explain voter behaviour in federal elections. Section 5.3 examines the parliamentary elections in the German states (Länder) and in

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the European Union and their interrelations with federal elections. In Section 5.4, we will take stock of the representative quality of elections in Germany and discuss various proposals for electoral reform.

5.1 Electoral Law and the Bundestag Electoral System Parliamentary elections usually produce government majorities that make binding decisions for the whole of society. These decisions also apply to citizens who did not vote for the government. It is therefore crucial for the acceptance of a democracy that the results of elections are likewise acknowledged by those on the losing side. Therefore, transparent and fair electoral rules are a core precondition for democratic legitimacy. This includes, first of all, voting rights —that is, the right to vote (suffrage) and the right to be elected. The exact form that democratic voting rights take worldwide is based on four principles that have emerged from a long historical process and are now largely uncontroversial (Behnke et al. 2017, pp. 22–32). They are also enshrined in the Basic Law (Art. 38, para. 1 GG) and specified in German federal and state law. (1) Universal suffrage means that all citizens may participate in elections, regardless of sex, education, income or other characteristics. In German history, women’s suffrage was highly contested; as in other Western European countries, it was introduced after the First World War (1919) and has never been called into question since then. However, there are certain limitations to the principle of universality that are still considered legitimate. For example, participation in elections depends on reaching a minimum age. This requirement is based on the idea of political maturity, which is generally linked to the age of legal majority (Grotz 2000). In the Federal Republic of Germany, the voting age was lowered from 21 to 18 in 1970. In 1974, the age of majority was also reduced to 18. There is a general trend towards further reducing this age. Several German states have lowered the voting age to 16 in recent years (Section 5.3). Suffrage was originally dependent on possessing German citizenship and a domestic residential status. As a result, neither Germans living abroad nor foreigners living in Germany were

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allowed to vote. The situation has changed for both of these groups (Caramani and Grotz 2016). In 1985, the Bundestag introduced the right to vote for Germans living abroad for the first time. Today, German nationals with an address outside the country are permitted to participate in federal elections if “they had a domicile or were otherwise permanently resident in the Federal Republic of Germany for an uninterrupted period of at least three months and this stay dates back not more than 25 years or for other reasons, they have become familiar, personally and directly, with the political situation in the Federal Republic of Germany and are affected by it” (Section 12, para. 2 BWahlG). However, Germans living abroad have no right to vote in state and local elections. Foreigners living in Germany may only participate in local elections. This option was created in 1992 by the Treaty of Maastricht (Chapter 3.1) and applies exclusively to EU citizens. Attempts to introduce universal suffrage for foreigners at state and local elections, like Schleswig–Holstein and Hamburg did in 1989/ 1990, have been struck down by the Federal Constitutional Court. According to its ruling, only German citizens can be bearers and subjects of state power in the sense of the Basic Law (BVerfGE 83, 37; BVerfGE 83, 60). Although this interpretation of the constitution is not uncontroversial (Meyer 2016), it was reconfirmed by the State Constitutional Court of Bremen in 2014. Finally, the right to vote can be temporarily withdrawn by a court for political crimes (e.g. high treason, election fraud). Since 2019, disabled persons cared for by an aide can participate in federal and European elections. They can avail of support from others in the voting process as long as this does not replace or alter their self-determined opinion forming or decision (Section 14, para. 5 BWahlG). (2) Equal suffrage means that the vote cast by each voter has the same chance of impacting the election of political office holders (“equality of counting”). This principle was severely violated in the Prussian census suffrage system (1849–1918), as male voters were divided into three groups according to their tax revenue. At that time, the votes of the richest male citizens counted up to 20 times more than those of the poorest male citizens. Today, equal suffrage is an essential part of the constitutional order. A potential problem in this context arises for the representation of

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national minorities, which is especially desirable from a consensus democracy perspective. If there is a minority group with low population numbers, electoral law may include specific provisions that favour minority parties and therefore partially conflict with individual equality of suffrage. In Germany, national minority parties are exempted from the 5% threshold in federal elections and in the state elections of Brandenburg and Schleswig–Holstein. So far, this has only had practical implications for the South Schleswig Voters’ Association (Südschleswigscher Wählerverband, SSW), which represents the Danish minority in Schleswig–Holstein. (3) The principle of the secret ballot stipulates that the voter’s decision may not be visible to anyone else and cannot be reconstructed in retrospect. Therefore, elections take place at a publicly accessible polling station and ballots are cast inside a booth, on an anonymised ballot paper that is then thrown into a sealed ballot box. This allows voters to express their political preference free from external coercion. However, they have no way of verifying that their votes are considered in the counting of ballots but have to trust that the elections are run correctly. (4) According to the principle of immediate or direct elections, the citizens elect their representatives without going through an intermediary body. This does not mean that all high political offices have to be filled through popular elections. Nor are systems of government where several state institutions are directly elected necessarily more democratic than others. The exact implementation of the principle of direct elections depends on the type of government system (Chapter 9.1). In a parliamentary system, only parliament is directly elected; the chief executive is not. Therefore, German citizens only elect the Bundestag, but not the chancellor. Apart from the Bundestag, the federal president or the Bundesrat members could also be elected by popular vote. Such a reform has been debated many times, but ultimately the arguments against it have prevailed (Chapters 10.4 and 11.4). Besides the four principles of democratic suffrage, Art. 38, paragraph 1 of the Basic Law also mentions free elections. However, it is controversial whether this term contains an additional statement about the individual right to vote (Nohlen 2014, p. 43). In 1977, the Federal Constitutional Court interpreted it to mean that “the act of voting remains free

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of coercion and inadmissible pressure” (BVerfGE 44, 125, 139). Such freedom of choice is already guaranteed by the secret ballot. In a wider sense, “free elections” could also refer to all regulations that ensure a fair electoral process. This includes independent reporting in the media, the prohibition of state-sponsored funding of election campaigns, and the politically neutral organisation of elections. Either way, the criterion of freedom would not rule out compulsory voting. This would force citizens to exercise their right to vote but would not limit their freedom of electoral choice, particularly since spoiled votes would still be permitted. Compulsory voting exists in several Western democracies, such as Australia, Belgium or Italy. It has never existed in Germany. General elections in Germany are organised by the federal returning officer (in the case of federal elections) and the state returning officers (in the case of state elections). This task is traditionally performed by the presidents of the Federal Office of Statistics or the State Offices of Statistics. Unlike many other democracies, Germany has had no serious problems with conducting free and fair elections for a long time (Norris 2014). Occasional mishaps, such as the issuing of incorrect ballot papers at the mayoral elections in Cologne in 2015, remained a rare exception. Given how rare such problems are, it is striking to note the unprecedented case of electoral mismanagement on 26 September 2021 in the city-state of Berlin, when there were simultaneous elections to the Bundestag, the state parliament and the district councils as well as a state referendum. In view of major organisational shortcomings and a large number of electoral errors, the Berlin Constitutional Court ruled that the state election had to be repeated in all of Berlin (Risse 2022). By contrast, the Bundestag decided that the federal election would have to be repeated only in 431 of the 2,300 electoral precincts in Berlin. While the repeat election for the Berlin parliament took place on 13 February 2023, the repeat election for the Bundestag is still dependent on a final decision by the Federal Constitutional Court. Despite these considerable repercussions, the Berlin case has not affected the overall high trust in the professionality of electoral organisation by the relevant federal and state authorities. The electoral system is the “most fundamental element of representative democracy” (Lijphart 1994, p. 1). Therefore, it has also received the most attention of all the electoral regulations in the German political system. Electoral systems are the set of rules that determine the form of voting as well as the conversion of votes into parliamentary seats (Behnke

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et al. 2017, pp. 57–62). They have a significant impact on the functioning of parliamentary democracies. Even minor modifications of the electoral system, such as the raising or lowering of a legal threshold, can change the political composition of the government substantially. The literature distinguishes between two basic types of electoral systems that have distinct objectives. Majority electoral systems aim to concentrate the parliamentary party system and promote single-party governments, which is typical for a majoritarian democracy. Therefore, their institutional design tends to favour larger parties in the allocation of parliamentary seats. At the same time, they usually sacrifice the proportionality between votes and parliamentary seats, and smaller parties have limited chances of getting into parliament. The main goal of proportional electoral systems is to ensure that the shares of votes and parliamentary seats are as proportional as possible, consistent with the idea of consensus democracy. Their institutional design also means that smaller parties enter parliament. At the same time, proportional electoral systems usually fail to prevent a fragmentation of the party system. There has been a longstanding controversy as to whether majority or proportional electoral systems are more favourable for the functioning of parliamentary democracy. This basic choice when designing electoral systems was also discussed in the first decades of the Federal Republic of Germany. At the time, most German political scientists had a clear preference for a majority electoral system. For example, Ferdinand A. Hermens (1968, p. V) claimed that it was not democracy “as such” that had failed in the Weimar Republic but merely “its variant weakened by proportional representation”. However, the electoral system for the Bundestag was not shaped by such supposed lessons from Weimar. In the Parliamentary Council, only the Christian Democratic Union and Christian Social Union (CDU/CSU) argued for a British-type plurality system while the other parties favoured a proportional system (Jesse 1985, p. 92). In the end, the two sides reached a political compromise. According to this compromise, each voter would have one vote counted twice: for a candidate in a single-member constituency (SMC) and for that candidate’s federal party list. Half of the members of parliament (MPs) were to be elected in these SMCs according to the plurality rule (so-called “direct seats”), while the other half of the seats were assigned via the party lists according to proportional representation (“party-list seats”). This was still not a symmetrical combination of majority rule and proportional representation (PR): since a party’s direct seats were subtracted from its list of

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seats, PR became the allocation mode for all parliamentary seats. But if a party received more SMC seats than list seats, it was allowed to hold onto these so-called overhang seats (Überhangmandate) in excess of its proportional share while the other parties did not gain any compensation. This fundamental institutional structure still exists today. The direct seats, allocated according to the “first-past-the-post” system, do not significantly affect the proportionality between votes and parliamentary seats but only determine which persons take up these seats. This is why the electoral system to the Bundestag is called “personalised proportional representation” or a “mixed-member proportional system” (MMPS). In 1949, this type of electoral system was unique worldwide; today, MMPS is also used in several other democracies such as New Zealand. The draft elections act proposed by the Parliamentary Council was amended by the state prime ministers and the Allies before taking effect. The main addition was a legal threshold. A party had to receive at least 5% of the valid votes in at least one German state in order to be allocated parliamentary seats. The only exception to this threshold pertained to parties who had won at least one SMC seat (Grundmandatsklausel ). In addition, the share of SMC seats was slightly increased (from 50 to 60%), and the federal party lists were replaced by state lists. After the 1949 federal election, the CDU/CSU attempted again to introduce a majority system, especially since they would have benefited from it the most as the strongest party. However, this initiative met with decisive resistance from the smaller government parties—the Free Democratic Party (FDP) and German Party (DP)—as well as the opposition Social Democratic Party (SPD). Thus, the mixed-member proportional system was preserved. For the 1953 elections, the 5% threshold was applied on the federal level. In addition, the one-vote system was replaced by a two-vote system: the “first vote” for an SMC candidate and the “second vote” for a state party list. In 1956, there were a few further small modifications to the elections act. The number of SMC seats required to get into parliament with less than 5% of the second votes was increased from one to three, and the proportional allocation of parliamentary seats was shifted from the state level to the federal level. The grand coalition of CDU/CSU and SPD formed in 1966 opened up a new window of opportunity for electoral reform. By that time, the SPD also favoured a majority system, which offered the prospect of a two-party system and a potential single-party government. Eventually, the

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SPD backed down again, since they were afraid that a permanent hegemony of the CDU/CSU would emerge and be cemented by a majority system. At the same time, the SPD saw the potential for an alternative governing coalition under their leadership after the FDP was about to switch sides. When the first SPD-FDP government was formed in 1969, the “grand election reform” (Sternberger 1964) became obsolete. Until reunification, changes in the Bundestag electoral system were marginal.1 In the following years, the MMPS also found broad acceptance among the parties and the citizens. Though it was originally a makeshift solution, the German-type MMPS became an international reform model by the 1980s, as it seemed to combine the “best of both worlds”, i.e. of majority and PR systems (Shugart and Wattenberg 2001). The overall positive assessment of the Bundestag electoral system owes much to its political effects. Table 5.1 shows a significant increase in proportionality. In the 1970s and 1980s, the index values were close to ideal proportionality, a result that would normally only be achieved by a pure PR system. The reason for this was the changing effect of the legal threshold. While the nationwide 5% hurdle had prevented a number of smaller parties from gaining seats in 1953 and 1957 and thereby produced up to 10% of “lost votes” (mechanical effect), it later prevented growing numbers of voters from “wasting” their votes on smaller parties that would remain below the threshold (psychological effect). As a result, the federal elections of 1972, 1976 and 1983 saw less than 1% of the votes being cast for parties not represented in the Bundestag. Remarkably, this high proportionality coincided with an increasing concentration of the party system. The largest party in the Bundestag consistently received between 45 and 49% of the seats while the second largest came in very close behind. As a result, the effective number of parties, a standard indicator for party-system concentration (Laakso and Taagepera 1979; Chapter 6.2), was less than 2.5 between 1961 and 1980. Last but not least, the two-ticket system provided voters with differentiated choices, as they could cast their first vote for an SMC candidate from one-party and their second vote for a different party. In the 1970s and 1980s, the FDP was the main beneficiary of this kind of ticket splitting (Nohlen 2014, pp. 380–385). Since voters knew ahead of the 1 In 1985, the allocation formula was changed from the d’Hondt method to HareNiemeyer. At the first Germany-wide federal elections in 1990, the 5% threshold was applied separately to East and West Germany (Nohlen 2014, pp. 369–371).

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Table 5.1 Effects of the Bundestag electoral system (1949–2021) Election

1949 1953 1957 1961 1965 1969 1972 1976 1980 1983 1987 1990 1994 1998 2002 2005 2009 2013 2017 2021

Proportionalitya

Lost votesb

Strongest party (in %)c

Effective parties in parliamentd

Additional seatse

91.4 92.7 93.1 94.3 96.4 94.5 98.9 99.1 97.9 99.2 98.6 91.9 96.5 94.0 93.3 96.0 94.0 84.3 94.9 91.4

1.1f 10.6 10.3 5.7 3.6 5.6 0.9 0.9 2.0 0.4 1.3 4.2 3.6 5.9 3.0g 3.9 6.0 15.7 5.1 8.6

34.6 49.9 54.3 48.4 49.4 48.8 46.4 49.0 45.5 49.0 44.9 48.2 43.8 44.5 41.6 36.8 38.4 49.3 34.7 28.0

4.0 2.9 2.4 2.5 2.4 2.2 2.3 2.3 2.4 2.5 2.8 2.7 2.9 2.9 2.8 3.4 4.0 2.8 4.6 4.8

2 3 3 5 – – – – 1 2 1 6 16 13 5 16 24 33 111 138

Remarks a The index with values between 100 (ideal proportionality) and 0 (maximum disproportionality) is calculated from half the sum of the differential amounts of vote and seat proportions of individual parties, subtracted from 100. b Aggregated proportion of party list votes not represented in the Bundestag (with the exception of the one-vote election in 1949) c CDU and CSU are counted as one-party here. d The effective number of parties is calculated from the quotient of 1 and the sum of the squared proportion of seats of all parties represented in the Bundestag (Laakso and Taagepera 1979). e Seats exceeding the regular size of parliament. Until 2009, this category only includes overhang seats; since 2013, it includes both overhang and compensatory seats. In 2013, 4 of the 33 additional seats were overhang seats (all CDU). In 2017, 46 of the 111 additional seats were overhang seats (36 CDU, 7 CSU, 3 SPD). In 2021, 34 of 138 additional seats were overhang seats (12 CDU, 11 CSU, 10 SPD, 1 AfD). Due to the amended electoral law of 2020, three overhang seats were not compensated (all CSU). f In 1949, the 5% threshold was applied at the state level. g The PDS, with 4.0%, failed to meet the legal threshold, but was represented in the Bundestag by two SMC seats Source Grotz (2009); updated on the basis of www.bundeswahlleiter.de

elections which of the large parties (CDU/CSU or SPD) the FDP would form a coalition with, many decided to give their second vote to the FDP while casting their first vote for the SMC candidate of the larger coalition party. This strategic voting behaviour, coming mostly from supporters of

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the CDU/CSU or SPD and therefore called “borrowed votes”, enabled the FDP to consistently surpass the 5% threshold during this phase and to become part of the government. Since 1990, the effects of the Bundestag electoral system have significantly changed (Grotz 2014, pp. 121–123). On the one hand, proportionality has declined because more votes are cast for parties that fail to surpass the legal threshold. This development peaked in the 2013 elections, when 15.8% of second votes were given to parties that fell below the 5% mark and therefore were not represented in the Bundestag. On the other hand, the concentration of seats was reduced, since CDU/CSU and SPD found themselves in open competition with three smaller parties, the FDP, the Greens and the Left party, each of which received more than 5% of the second votes most of the time. In the 2017 Bundestag elections, the fragmentation of the party system increased again due to the parliamentary entry of the Alternative for Germany (AfD). The 2021 elections saw further growth in the effective number of parliamentary parties to 4.8, which is now significantly higher than in the first Bundestag elections in 1949. A major change also occurred regarding the emergence of the overhang seats. There were only a few of them until 1987 but they occurred in larger numbers after 1990. The main reason for this increase in overhang seats was the relative weakness of the strongest party in terms of second votes (Weinmann and Grotz 2022). More concretely, it received a significantly less proportional seat share but still won the plurality of first votes in many SMCs and therefore gained a disproportionate share of direct seats. This phenomenon became particularly controversial in the 1994 elections, when the CDU won 16 overhang seats, which enabled them to consolidate their very tight government majority together with the FDP. Since the CDU/CSU-FDP coalition had no desire to abolish the overhang seats, the opposition SPD lodged a complaint against them in the Federal Constitutional Court, which rejected the case in 1997, albeit by a tied vote (BVerfGE 95, 335). When the SPD finished the 1998 elections as the strongest party and became the beneficiaries of overhang seats themselves, they lost interest in an electoral reform. In terms of power politics, the problem had apparently been solved, since the party with the most votes always seemed to benefit from the overhang seats, i.e. the electoral system did not produce a one-sided seat bonus. Nevertheless, there was still a heated public discussion about the overhang seats. One mechanism was seen as particularly problematic—the

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so-called “negative voting weight”, which resulted from the incorporation of SMCs seats in the proportionally allocated overall seats and was enhanced by the way they were assigned to the state party list. Under specific circumstances, a party with fewer second votes could receive more overhang seats whereas an increase in votes for a party could prevent the creation of overhang seats and therefore be to its disadvantage. When this paradoxical mechanism became obvious for the first time at a by-election in Dresden in 2005, the operators of the internet platform Wahlrecht.de took the opportunity to appeal to the Federal Constitutional Court. In July 2008, the court found in favour of the complaint and gave the Bundestag until 30 June 2011 to prevent the emergence of negative voting weight and restore an electoral system that conformed to the constitution. The Bundestag parties waited to complete this reform until just before the deadline, meaning the 2009 elections still took place according to the old, unconstitutional electoral system. The governing CDU/CSUFDP coalition wanted to prevent the negative voting weight but also preserve overhang seats that would have especially benefited the CDU/ CSU. Although the opposition parties rejected this reform proposal unanimously, the government parties passed it in autumn 2011 with their simple parliamentary majority. In response, the SPD, the Greens and the Left party took a case to the Federal Constitutional Court, which declared the new electoral law invalid in July 2012. Barely 14 months before the next Bundestag elections, the government and opposition parties agreed on an amendment to the electoral law, approved by all parties except for the Left. The reform of the electoral system, which came into effect in May 2013, made two significant changes (Weinmann and Grotz 2022, pp. 560–561). First, another step in seat allocation was introduced (initial distribution), which would precede the nationwide distribution of PR seats (upper distribution) and their allocation to the state party lists (lower distribution). Second, the amended law provided for compensation seats to restore intra-parliamentary proportionality at the national level. If the minimum entitlement of a party from the initial distribution were to exceed its seat number from the upper distribution, a further distribution would take place. This further distribution would mean each party would get as many additional seats as needed to achieve full proportionality among all parliamentary parties. In this way, the 2013 electoral reform followed the requirements of the Federal Constitutional

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Court, since it prevented the emergence of uncompensated overhang seats that had given the negative voting weight its political significance. However, it also had severe disadvantages (Grotz 2016). First, seat allocation became a lot more complex. In its judgement of 2008, the Federal Constitutional Court had explicitly called for the “hardly comprehensible regulatory network of the seat allocation in the German Bundestag to be placed on a new, clear and comprehensible basis” (BVerfGE 121, 266, 316). However, the new law took the electoral system further away from this goal than it had been before. Second, it had the potential to strongly enlarge the Bundestag beyond its regular size, since the overhang seats would have to be counterbalanced by the allocation of even more compensation seats for the other parliamentary parties. Finally, the new initial allocation was not only functionally superfluous but it could also produce additional seats without “real overhangs” if a given state’s seat contingent, which is fixed in advance, were to be covered by fewer second votes than in other states; this would hence factor disproportionately into the nationwide seat allocation. When the new electoral system was first applied in 2013, it resulted in a rather moderate number of 33 additional seats. However, the 2017 Bundestag elections saw an inflation of 111 additional seats, which amounted to 709 seats overall. But even that was not yet the maximum size to be expected in view of the increased fragmentation of the party system. According to surveys conducted between late 2017 and early 2020, a Bundestag of far more than 800 seats seemed quite realistic (Pukelsheim 2019; Weinmann and Grotz 2022).

The Electoral System for the German Bundestag (2021) Every voter has two votes that can be cast independently of each other and carry a different significance. The voter casts their first vote for a candidate in one of the 299 single-member constituencies (SMCs). The candidate who receives the most of these votes is elected to the Bundestag (“direct seat”). Voters then have a second vote for a state party list. The seats of the individual parties are allocated according to the nationwide proportion of the second votes. Since the direct seats of a party are subtracted from its list seats, and since the other parties in the Bundestag receive seats in compensation if a party receives more direct seats than list seats, the proportion of second votes is the allocation criterion for the parties’ seats in the Bundestag. The candidates elected in SMCs serve to personalise the overall seat allocation (personalised proportional representation). The Bundestag has a standard size of 598 members. To achieve a nationwide proportional allocation of seats, the real size of the parliament can be much greater. Seat allocation takes place in three steps:

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(continued) (1) Determination of minimum seat numbers (initial distribution). Before the elections, the seats in the Bundestag are distributed among the 16 states according to population size based on the Sainte-Laguë method. Within these state constituencies, the seats are allocated proportionally according to the second votes of the parties that have received more than 5% of second votes nationwide or that have won at least three SMC seats. Each of these parties then receives a provisional number of seats in each state that corresponds to the number of direct seats if this is greater or equal to the proportionally allocated seats. If the number of direct seats is lower than that of the proportionally allocated seats, the provisional number of seats is calculated by the rounded-up mean value of the number of direct seats and the number of proportionally allocated seats. This step in the allocation process means that direct seats not covered by the share of second votes (overhang seats) gained by an individual party in one state can be factored into one of its other state lists. This intra-party compensation can lower the number of overhang seats subject to compensation in the next step. The sum of the provisional number of seats in the individual states then adds up to the minimum number of seats that each party will receive (minimum entitlement). (2) Nationwide seat allocation to the parties (upper distribution). The second step determines the number of seats of the individual parties in the Bundestag. To achieve this, the total number of seats is increased until every party has as many seats proportional to their nationwide second votes (according to Sainte-Laguë) as they are entitled to according to the initial distribution. In this increase, up to three overhang seats are disregarded. Thus, a proportional levelling occurs between the Bundestag parties, related to the party that is the most over-represented in the initial allocation. This means that the size of the Bundestag can increase considerably. At the same time, one or more parties can gain a (small) “bonus” through the three non-compensated overhang seats. (3) Intra-party seat allocation (lower distribution). The seats of all parties in the Bundestag described in (2) are distributed among their state lists according to their second votes, following the Sainte-Laguë formula. Here, each party receives at least as many seats in each state as it was assigned during initial allocation. After the subtraction of the direct seats, the rest of the seats of the individual parties are allocated according to the order in which they appear on the party list, with directly elected candidates being skipped. Source Authors’ description following Behnke et al. (2017, pp. 183–184) relating to the BWahlG, version of 14 November 2020 (BGBl. I, p. 2395)

With this in mind, the CDU, CSU and SPD eventually agreed on another reform of the electoral system in autumn 2020, which aimed to avoid the excessive enlargement of the Bundestag. Accordingly, up to three overhang seats would not be compensated from the 2021 elections onwards. Furthermore, the overhang seats emerging in one state

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were partially offset by the list seats of the same party in other states (see box). From the next Bundestag elections after 2021 (i.e. starting in 2025), SMCs were to be reduced from 299 to 280. This reform was widely believed to have failed in several respects (Grotz and Pukelsheim 2020). First, the foreseeable “flattening” of the seat-growth curve was quite modest. A future Bundestag with more than 750 members was still quite likely. Second, the introduction of uncompensated overhang seats has restored an element in the electoral system that has been criticised in many respects and has also created constitutional problems. Not least, this reform was “forced through” by the government parties against the unanimous resistance of all opposition parties. Due to the idiosyncratic circumstances under which the Federal Elections Act originated, it is one of the few fundamental laws in the German political system that does not require a two-thirds majority to pass. Nevertheless, every government majority would be well advised to involve the opposition parties in all changes of the electoral law as far as possible, since they can bring a case against such a “one-sided” reform to the Federal Constitutional Court, especially if it is not well founded. This is exactly what the FDP, the Greens and the Left did in February 2021. The federal government of the SPD, the Greens and the FDP, which came into office in December 2021, put the electoral system reform back on the political agenda (Grotz and Vehrkamp 2022). In January 2023, the coalition parties presented a joint reform bill that provided for the nonallocation of accruing overhang seats. This would ensure that the regular size of the Bundestag would always be achieved, although this could lead to “unoccupied” single-member constituencies. This side effect prompted the CDU/CSU opposition to vehemently reject this proposal, although they could not come up with a solution that would have effectively curbed the enlargement of parliament without changing the essential elements of MMPS. If the governing parties adopt this bill with their parliamentary majority, they would not only considerably reduce the actual seat number in the future, thus demonstrating the ability of the Bundestag to reform itself, but also complete a process of electoral system reform that has lasted more than 15 years.

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Voting Behaviour in Bundestag Elections

In any free election, those who are eligible to vote must make two fundamental decisions: on whether to participate in the elections and, if they do participate, about their selection of candidates and parties. Empirically based explanations for these electoral choices are all but easy to find. Due to the secrecy of the ballot, there is a methodological problem, namely that the motivations of voters can only be deduced indirectly. Electoral studies may deal with this problem in two different ways—they can draw on representative opinion polls, in which the respondents may also make incorrect statements, or they can use aggregated data from social statistics that cannot be linked to individual voters. Notwithstanding these difficulties, we can say with some certainty that electoral choices result from many different factors located on different levels. These include the supply by the various parties, both in terms of programmatic content and in terms of candidates; the demand for specific policies resulting from the voters’ interests and value orientations; and the institutional and political framework, which influences the electoral behaviour of parties and voters. Research on voting behaviour usually starts with the demand side. Here, we can distinguish between three main theoretical approaches (Niedermayer 2013, pp. 271–278). The sociological approach assumes that voters’ preferences are determined by their belonging to a specific social group. Citizens with the same socio-structural characteristics, such as occupation or religion, are assumed to share similar political interests and convictions. According to Lipset and Rokkan (1967), four social cleavages emerged during the nineteenth century in West European societies: the socioeconomic cleavage between labour and capital, the cleavage between urban and rural interests, the cultural cleavage between the (Catholic) church and the (secular) state, and the centre-periphery cleavage between the centralised state and regionally concentrated, ethnocultural minorities. These cleavages took different forms in different countries. They gained their political significance from the fact that certain parties (liberals, Christian democrats, social democrats, etc.) started to represent the interests of the individual groups, who in turn supported those parties. The identification with certain political parties was particularly strong in the “socio-moral milieus” (Lepsius 1966), which were lifeworld interest and value communities and were therefore particularly homogenous in their political orientation. When universal suffrage was introduced at the beginning of the twentieth century, these cleavages

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became the socio-structural foundation of the democratic party competition and also stabilised it by helping individual parties to permanently attract a specific part of the electorate. The socio-psychological approach does not explain voting behaviour by the societal environment of the citizens but through their political perceptions, opinions and evaluations. The most important factor here is party identification, which refers to the emotional connection to a party. This is acquired through political socialisation and remains stable in the long term. If this “subjective party membership” is strong, it usually leads to voting for this party. If it is weak, two short-term factors gain more significance. First, there are policy issues relevant to the citizens and primed to different degrees by different parties (e.g. the future of the pension system). Consequently, a voter will choose the party whose manifesto comes closest to their own preferences and that seems the most competent to deliver on this issue. Second, the assessment of candidates for top offices also influences voting behaviour. If they are perceived as strong leaders, competent and likeable, this perception will also improve the electoral chances of their party (Brettschneider 2002). The economic approach traces voting behaviour back to rational cost– benefit calculations. Consequently, a voter will choose the party whose political offering comes closest to their own interests. This approach does not explain the social contexts in which those interests emerge. Instead, it focuses on some of the same short-term factors that are also considered in the socio-psychological approach, such as policy issues and top candidates. Unlike in the socio-psychological approach, the voting decision is not based on emotional perceptions but on rational calculation. Either the voter assesses the parties based on their performance in the previous parliamentary term (retrospective voting) or on the performance they expect from them in the future (prospective voting). In this context, they may also vote strategically by deciding not to support the party they really prefer and instead cast their vote in a way that facilitates a specific coalition government that will promote policies in line with their own interests (Behnke et al. 2017, pp. 134–136). What all three theoretical approaches have in common is that they focus on the voters’ political interests and orientations. Therefore, they can be incorporated into a comprehensive model of voting behaviour (Campbell et al. 1960; Rudi and Schoen 2014). The model includes long-term factors such as socio-structural characteristics, membership of social groups and party identification. In addition, there are policy

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issues and candidate evaluations, which may change in the short term, either between two elections or even during an election campaign. If the long-term factors have strong formative power, they can produce a rose-tinted-glasses effect for the supporters of a party, who will then vote for the party even if its offering is less attractive. Conversely, mistakes in programmatic positioning or unpopular candidates can lead voters to turn their backs on the party they have traditionally supported. Generally, the weaker the formative power of the social environment, the more volatile voting behaviour will become. Research on German elections has employed all three of these approaches. There is not enough space here to present the findings of this extensive literature in detail (Falter and Schoen 2014; Korte and Schoofs 2019; Roßteutscher et al. 2019; Schmitt-Beck 2011). Instead, we will focus on four core results about voting behaviour in the Bundestag elections (see also the data in Table 5.2). (1) Dominance of the catch-all parties and stable inter-party competition until the end of the 1980s. Like many first parliamentary elections after a democratic transition, the Bundestag elections of 1949 took place in an unconsolidated political context. Therefore, it was no surprise that eleven different parties entered the first Bundestag. Remarkably, more than 60% of the voters supported the CDU/CSU or the SPD. This strong vote concentration stabilised subsequently. By 1957, the share of the two large parties grew to more than 80%, and it never fell below this mark until 1987. The party system also remained highly stable over time. The vote share of the CDU/CSU and the SPD only fluctuated by around 3–4 percentage points from one election to the next; aggregated electoral volatility thus remained very low. The strong continuity of voting behaviour between the late 1950s and the late 1980s was also supported by economic prosperity and political stability. The social basis for these largely constant party preferences was formed by two cleavages (Lipset and Rokkan 1967): the class cleavage, in which the SPD represented the workers, and the religious cleavage, where voters closely connected to their churches found a political home with the CDU/CSU, which covered the different Christian denominations in Germany. Both groups were not only large in numbers in the early Federal Republic of Germany but also formed homogenous socio-moral milieus. The SPD had

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its core electorate among the workers, who were organised by the trade unions, while the CDU/CSU could count on unanimous support from voters affiliated with the Christian churches (Pappi and Brandenburg 2010). The slight vote shifts between the parties in that period were mainly due to the different salience of policy issues and the performance of chancellor candidates. The greatest election successes of the two catch-all parties illustrate this. In 1957, the CDU/CSU won an absolute majority at a Bundestag election for the first and only time, surpassing its previous result by five percentage points.2 This landslide victory came after an election campaign in which the CDU/CSU styled their chancellor as a guarantor of West Germany’s foreign and security policy (“No experiments! Konrad Adenauer”) and announced that they would increase pensions significantly. The SPD achieved its historic election record in 1972, when it gained almost 46% of the vote. This result was also thanks to a polarised campaign in which Willy Brandt’s foreign policy towards the Eastern Bloc (Ostpolitik) was the key issue and which was strongly tailored to his person (“Vote for Willy!”). Since the late 1970s, the formative power of socio-moral milieus was weakening and the traditional core electorates of the two catchall parties were shrinking. This trend also improved the electoral chances of new parties. (2) Erosion of the catch-all parties and higher volatility after 1990. Voting behaviour in Bundestag elections changed profoundly with reunification. The most obvious change was the decline in support for the catch-all parties. At the 1990 Bundestag election, the first in a reunited Germany, the joint vote share of CDU/CSU and SPD was 77%, the lowest level since 1953. In the following years, this number continued to decline, reaching its lowest point in 2021— after a brief peak in 2013—when only 49.8% of the votes were cast for CDU/CSU or SPD. At the same time, electoral volatility increased. Since 2013, it has been above the 13 percentage point mark and therefore higher than it was in the initial years of the Federal Republic of Germany (Table 5.2). The actual number of swing voters was even greater. For instance, almost half of the 2 However, the CDU/CSU did not form a single-party government but entered into a coalition with the FDP and the DP (Chapter 10.2).

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voters who participated in the 2013 federal election voted for a different party in 2017 (Schoen 2019). There are different reasons for the greater dynamics in voting behaviour (Niedermayer 2013, pp. 274–276; Schmitt-Beck 2011). First of all, it is the continuation of a development that had been mentioned above. Due to social change, the socio-moral milieus have been shrinking more and more and the core electorate of the CDU/CSU and SPD has declined with them. This does not mean that the traditional social cleavages no longer have any impact. For instance, at the 2017 Bundestag election, Catholic churchgoers still voted overwhelmingly for the CDU/CSU, while unionised voters voted disproportionately for the SPD (Weßels 2019). However, since these groups are declining in numbers, neither party can rely solely on their core clientele to win elections. German unification reinforced these trends. Since political socialisation was very different in pre-1990 East Germany than in the old Federal Republic of (West) Germany, no long-term party affiliations based on social cleavages could develop there. Along with the repercussions caused by the transformation of the East German economy and society, this led to differences in political attitudes between East and West Germany and to a higher volatility of party preferences in the East (Arzheimer 2016; Jung et al. 2019). As socio-structural factors have become less relevant, shortterm factors have become more so. However, the influence of policy issues and chancellor candidates on voting behaviour varies from election to election. This is particularly apparent in the electoral impact of the respective chancellors (Glinitzer and Jungmann 2019). Gerhard Schröder’s popularity in the 2002 Bundestag election very obviously generated votes for the SPD. In 2013, Angela Merkel was able to “pull up” the vote for the CDU/CSU to a similar extent (Schoen and Weßels 2016, pp. 9–10). The 2021 Bundestag election was the first ever in which the incumbent chancellor did not run again. In this context, the CDU/CSU chancellor candidate Armin Laschet clearly lost out to the SPD candidate and vice-chancellor Olaf Scholz, whose image boosted his party at the polls (Schmitt-Beck 2021). In the other Bundestag elections since reunification, candidate effects have played a much smaller role in voting behaviour.

1949 1953 1957 1961 1965 1969 1972 1976 1980 1983 1987

Year

78.5 86.0 87.8 87.7 86.8 86.7 91.1 90.7 88.6 89.1 84.3

31.0 45.2 50.2 45.4 47.6 46.1 44.9 48.6 44.5 48.4 44.3

CDU/CSU 29.2 11.9 28.8 9.5 31.8 7.7 36.2 12.8 39.3 9.5 42.7 5.8 45.8 8.4 42.6 7.9 42.9 10.6 38.2 7.0 37.0 9.1

5.7 2.2 – – – – – – – – –

4.2 – – – – – – – – – –

4.0 3.3 3.4 – – – – – – – –

3.1 – – – – – – – – – –

2.9 – – – – – – – – – –

SPD FDP KPD BP DP Zentrum WAV – 5.9 4.6 – – – – – – – –

GB/BHE

Turnout and party vote shares in Bundestag elections (1949–2021)

Turnout Vote share (in percent)a

Table 5.2

– – – 2.8 – – – – – – –

– – – – 2.0 4.3 – – – – –

– – – – – – – – – 5.6 8.3

8.0d 5.3 2.4 2.9 1.6 1.1 0.9 0.9 2.0 0.5 1.4

GDP NPD Grüne Otherb

– 12.0 7.2 8.3 5.0 5.7 3.6 3.7 4.1 6.9 5.5

Volatilityc

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77.8 79.0 82.2 79.1 77.7 70.8 71.5 76.2 76.6

1990 1994 1998 2002 2005 2009 2013 2017 2021

43.8 41.5 35.1 38.5 35.2 33.8 41.5 33.0 24.1

CDU/CSU 33.5 36.4 40.9 38.5 34.2 23.0 25.7 20.5 25.7

SPD 11.0 6.9 6.2 7.4 9.8 14.6 4.8 10.7 11.5

FDP 3.8 7.3 6.7 8.6 8.1 10.7 8.4 8.9 14.8

Grüne 2.4 4.4 5.1 4.0 8.7 11.9 8.6 9.2 4.9

PDS/Linke 2.1 – – – – – – – –

REP – – – – – 2.0 2.2 – –

Piraten – – – – – – 4.7 12.6 10.3

AfD 2.1 3.6 5.9 3.0 3.9 4.0 4.0 5.0 8.6

Otherb

5.6 8.2 7.6 6.5 8.1 11.7 13.0 14.3 13.7

Volatilityc

Notes a Nationwide shares of valid second votes since 1953 (single vote in 1949). b Parties with less than 2% of votes. c The volatility index is calculated by taking the absolute difference in each party’s vote share in a given Bundestag election and the previous election. Parties that only competed in one of the two elections receive zero vote share for the other. Then, the differences across parties are added up and the sum is divided by 2 (Pedersen 1979). d Including votes for independent candidates (4.8%) Abbreviations AfD = Alternative für Deutschland; BP = Bayernpartei; CDU = Christlich Demokratische Union; CSU = Christlich Soziale Union; DP = Deutsche Partei; FDP = Freie Demokratische Partei; GB/BHE = Gesamtdeutscher Block/Bund der Heimatvertriebenen und Entrechteten; GDP = Gesamtdeutsche Partei; KPD = Kommunistische Partei Deutschlands; NPD = Nationaldemokratische Partei Deutschlands; PDS = Partei des demokratischen Sozialismus (from 2005: the Left); REP = Republikaner; SPD = Sozialdemokratische Partei Deutschlands; WAV = Wirtschaftliche Aufbau-Vereinigung Source Authors’ compilation and calculation according to www.bundeswahlleiter.de

Turnout

Year

Vote share (in percent)a

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(3) Subsequent establishment of new parties. Even after the structures of political competition became consolidated in the early 1960s, new parties kept emerging and winning considerable shares of votes at Bundestag elections (Table 5.2). However, only the Greens (since 1983), the Left party (and its forerunner party, the Party of Democratic Socialism (PDS); from 1990) and the AfD (since 2017) have managed to enter the Bundestag. All three of these parties occupy policy-related positions that were not or not sufficiently represented by the established parties. Nevertheless, the backgrounds and trajectories of their electoral success have been quite different. Since the late 1970s, the Greens have focused on the issues of ecology and sustainable energy (anti-nuclear movement), combined with demands for equal social status for women and minorities as well as international justice, world peace and sustainable development. This programme has enabled the party to align with a growing segment of voters with “post-materialist” values (Müller-Rommel 2015). The PDS was a product of reunification. As the successor organisation to the former State Party of the GDR, it focused on representing the interests of the East German states. This positioning as the “East German regional party” (Niedermayer 2013, p. 273) met with considerable demand. Until the mid-2000s, electoral support for the PDS was almost exclusively limited to East Germany. Even after the party merged with WASG to become the nationwide Left party, its election results were still much better in East Germany than in the West of the republic. Even in the 2021 Bundestag election when the party faced a significant decline, its share of votes was significantly higher among East German voters than nationwide. The AfD was founded in 2013 in the context of the EU state debt crisis and initially distinguished itself by presenting a Eurosceptic manifesto. It soon adopted right-wing populist and nationalist positions and experienced a huge upswing in popularity due to the refugee crisis in autumn 2015 (Atzpodien 2022). AfD voters are characterised by specific sociocultural orientations, such as a fear of being overwhelmed by immigrants and a fear of the future. These attitudes are obviously very different from those of the electorates of the other parties (Bergmann et al. 2017; Pickel 2019). Whether this polarisation of voter attitudes will result in

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the emergence of a permanent cleavage between an “open” and a “closed” society is not yet clear. It will also depend on whether the AfD locates itself clearly within the democratic spectrum or whether right-wing extremist factions continue to dominate the party (Schroeder and Weßels 2019). (4) Declining voter turnout. Between 1953 and 1987, voter turnout at Bundestag elections was consistently over 84%. It reached its peak in 1972, when 91% of registered voters participated in the elections, a very high number for a democracy without compulsory voting. After reunification, the turnout fluctuated around the 80% mark before it reached its historic nadir in 2009 (70.8%) and then rose again (2021: 76.6%). Assessments of voter turnout in democratic theory differ sharply (Schäfer 2015, pp. 30–36). From the perspective of republicanism, a democratic constitution can only be maintained by the active participation of citizens. Low voter turnout is therefore problematic for democracy. From the perspective of liberalism, the individual is free to decide whether they wish to make use of their political rights. Abstention from voting can therefore be interpreted as a sign of being satisfied with the actual performance of democracy. Which of these two positions fits the case best also depends on the explanation for why people do not vote. Electoral research has come up with four ideal–typical profiles of non-voters (Niedermayer 2013, p. 282). “Occasional” non-voters would have participated in the elections but were prevented from doing so by unforeseen circumstances (e.g. sudden illness or incorrect delivery of postal ballot papers). This reason is normatively unproblematic. However, it usually affects only a small proportion of non-voters. By contrast, “deliberative” non-voters make their participation conditional on the significance of an election. This can explain structural differences in turnout in elections at the federal level on the one hand and the state and EU levels on the other (Section 5.3). The number of deliberative non-voters also rises when the result of a Bundestag election seems to be certain in advance and therefore “nothing more is at stake”. This kind of abstention is more widespread than “occasional” non-voting but is not a serious threat to democratic legitimacy either. Things are different again with “dissatisfied” non-voters. They stay at home on election day because they do not feel adequately

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addressed by the parties’ candidates and manifestos. This form of abstention does not indicate silent agreement with the political status quo but points to the existence of a voter pool for populist and anti-democratic forces. This is generally supported by empirical studies showing that non-voters display a higher degree of political discontent than citizens who participate in elections (Stövsand and Roßteutscher 2019, p. 151). It is hard to say how many people are motivated in their electoral non-participation by such dissatisfaction. Nevertheless, it is always possible to bring part of this group back to the ballot box through revamped political platforms or new political parties. “Apolitical” non-voters have little to no interest in politics. They never participate in elections of their own accord. They would only do so if voting becomes common in their personal environment. The more the societal norm of electoral participation loses its significance, the fewer apolitical citizens will cast their votes. Therefore, the erosion of the socio-moral milieus may also explain why voter turnout has declined in all Western democracies since the 1970s. In terms of democratic theory, this phenomenon is quite problematic, because political participation is often “socially skewed”. Some time ago, comparative election research discovered that citizens with a high socioeconomic status (education, profession, income) are more interested in politics and thus participate in elections more frequently and intensively than others (Verba and Nie 1972). If voting is no longer a societal norm, people with lower socioeconomic status will be particularly badly affected. In this perspective, non-voting is not an accidental or deliberate absence from elections but a question of class affiliation, which impairs the democratic promise of political equality. In Germany, the “social selectivity” of voter turnout has been increasingly discussed and analysed for some time (Schäfer 2015). A clear relationship between a lower educational status and lower income on the one hand and abstention from voting on the other hand was also evident at the 2017 Bundestag election, although it was a little less pronounced than before because of the overall rise in voter turnout (Stövsand and Roßteutscher 2019).

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5.3 Parliamentary Elections in the Multi-Level System Besides the Bundestag, German citizens also elect the parliaments of the German states and the European Union.3 The German states have considerable discretion to design their own electoral law. Nevertheless, most of them utilise the mixed-member proportional system with a 5% threshold. Only Bremen and Saarland practise a “simple” PR system with party lists, i.e. without direct seats (Table 5.3). Thus, the electoral systems at the federal and state levels are highly homogenous. That was not always the case. Only Lower Saxony and North Rhine-Westphalia have had mixed-member proportional systems since the first state parliament elections in 1947. Other West German states followed later, with Rhineland-Palatinate being the last one in November 1989. Shortly afterwards, the mixed-member proportional system was also adopted by the East German states (Trefs 2008, p. 333). The electoral provisions in the German states also differ in some respects from those at the federal level. The state parliaments are elected every five years; only Bremen adheres to the four-year term of the Bundestag. Moreover, Baden-Württemberg, Bremen, Brandenburg, Hamburg, Mecklenburg–West Pomerania and Schleswig–Holstein have lowered the voting age to 16. The electoral systems of the states also have some specific features. In all mixed-member proportional systems, overhang seats have been compensated by additional seats for the other parliamentary parties for a long time (Weinmann and Grotz 2021); at the federal level, a similar provision was only introduced in 2013 (Section 5.1). A basic seat clause that allows parties with direct seats to enter parliament without passing the 5% threshold only exists in Berlin, Brandenburg, Saxony and Schleswig–Holstein. In Bavaria, the second vote can be cast for individual candidates on a party list. In addition, first and second votes are added together to determine the overall seats in Bavaria. In both Baden-Württemberg and Bavaria, the district level plays an important role in the allocation of seats. Bremen and Hamburg made fundamental changes to their electoral systems in the mid-1990s. These reforms were triggered by popular initiatives that were able to push 3 In addition, local councils are directly elected. Since these elections are shaped less by the inter-related effects in the multi-level system described below than by the characteristics of the municipal level, they will be discussed in Chapter 14.2.

16/18 MMPS Closed 18/18 18/18 18/18 18/18

5

5

4

5 5

5

5 5 5 5

5

Berlin

Brandenburg

Bremen

Hamburg Hesse

Mecklenburg–West Pomerania Lowe Saxony North Rhine-Westphalia Rhineland-Palatinate Saarland

Saxony

MMPS MMPS MMPS PR with lists 18/18 MMPS Closed

Closed Closed Closed Closed

5

16/18 PR Openb with lists 16/18 MMPS Openc 18/18 MMPS Closed

2

2 2 2 1

2

10 2

2

2

2 2

No of votes

16/18 MMPS Closed

16/18 MMPS Closed 18/18 MMPS Nonblockeda 18/18 MMPS Closed

5 5

Baden-Württemberg Bavaria

Type of Form of lists electoral system

Electoral Voting period age (years) (active/ passive)

Electoral systems in the German states

State

Table 5.3

No No

87 (–) 5g 121 (71d ) 5 110 (55) 5

5 5 5 5

120 (60) 5

135 (87) 181 (128) 101 (51) 51 (-)

71 (36) 5

Yes (2)

No No No –

No

Yes (1) Yes (1) –

130 (78) 5e 88 (44) 5f

No No

Yes

Yes Yes Yes –

Yes

Yes Yes

–

Yes

Yes

Yesi Yesi

Legal Basic Compenthreshold seatsh sation (%) seats

120 (70) 5 180 (91) 5

No. of seats (SMCs)

d’Hondt

Sainte-Laguë Hare/ Niemeyer Hare/ Niemeyer d’Hondt Sainte-Laguë Sainte-Laguë d’Hondt

Sainte-Laguë Hare/ Niemeyer Hare/ Niemeyer Hare/ Niemeyer Sainte-Laguë

Allocation formula

166 F. GROTZ AND W. SCHROEDER

5

5

5

Saxony-Anhalt

Schleswig–Holstein

Thuringia

Type of Form of lists electoral system

2

2

2

No of votes

Yes (1) No

69 (35) 5f 88 (44) 5

No

Yes

Yes

Yes

Legal Basic Compenthreshold seatsh sation (%) seats

83 (41) 5

No. of seats (SMCs)

Hare/ Niemeyer

Hare/ Niemeyer Sainte-Laguë

Allocation formula

Notes a In Bavaria, the second vote can either be given to a party list on the district level or to a specific candidate within that list (non-blocked list). In order to determine the proportion of seats within the district constituencies, both votes are added together. b In Bremen, every voter has 5 votes they can distribute ad libitum among the candidates/lists of all parties. c In Hamburg every voter has 10 votes—5 for candidates in (personalised) multi-member constituencies and 5 votes that they can give to candidates on different party lists or concentrate on one list. d In Hamburg the direct seats are allocated in multi-member constituencies with 3 to 5 seats each. Hence, this electoral system is a borderline case of MMPS (for different classification see Weinmann and Grotz 2021). e In Berlin the calculation of the 5% threshold includes the invalid votes. f The parties of the Sorbian minority (Brandenburg) and the Danish minority (Schleswig–Holstein) are exempt from the 5% threshold. g The threshold applies separately for Bremen and Bremerhaven. h Parties with direct seats are exempted from the 5% threshold. The minimum number of direct seats is given in parentheses. i Compensatory seats are allocated on the district level in Baden-Württemberg and Bavaria Abbreviations MMPS = mixed-member proportional system; PR = proportional representation Source Authors’ compilation following Weinmann and Grotz (2021), updated as of 15 November 2022

18/18 MMPS Closed

16/18 MMPS Closed

18/18 MMPS Closed

Electoral Voting period age (years) (active/ passive)

State

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through more “participation-friendly” electoral systems. Since then, citizens in both city-states have had multiple votes, which makes casting and counting these votes quite complicated (Tiefenbach 2015). The political effects of the state electoral systems are largely similar to those of the Bundestag system. This is true both for the proportionality between votes and seats as well as for the fragmentation of the party system (Raabe et al. 2014). Moreover, some state parliaments have repeatedly increased their size due to overhang seats and compensatory seats—much like the Bundestag in 2017 and 2021. This has happened especially often in Berlin, Baden-Württemberg, North Rhine-Westphalia and Saxony-Anhalt (Weinmann and Grotz 2021). In terms of voting behaviour, there are basic similarities between state elections and federal elections in that party choices are determined by the same socio-structural, socio-psychological and interest-related factors overall (Müller and Debus 2012). However, there is one fundamental difference. There is much less “at stake” in state elections since the most important laws are made at the federal level (Chapter 4.1). The lesser significance of state politics also affects voting behaviour in several ways. First, voter turnout is usually lower at state elections than at federal elections. For a long time, the East German states had a much lower level of voter turnout than the West German states (Arzheimer and Falter 2005). The historic nadir occurred at the 2006 elections in SaxonyAnhalt, when only 44% of registered voters cast their ballot. Since the entry of the AfD into the state parliaments, the party system has become more polarised and voter turnout has risen again (Haußner and Leininger 2018). Participation in state elections is always particularly high when they are held on the same day as the Bundestag elections because they can attract more voters in the “slipstream” of the federal level. Since 1949, there have only been eleven cases of simultaneous elections on the federal and state levels (most recently in Berlin in 2021). Second, non-established parties have better chances of getting votes on the state level. Since citizens generally perceive state politics as less significant, they are more likely to “experiment” with their vote. For new political forces, but also for radical parties, the hurdle to enter parliament is therefore lower at state parliament elections than at the Bundestag elections, although the legal threshold is the same. It is no coincidence that the Greens were already represented in many state parliaments before they surpassed the 5% threshold at the federal level. The same was true for the AfD, which was represented in ten state parliaments before its entry into

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the Bundestag (Schroeder and Weßels 2019). Since the 1960s, right-wing extremist parties, like the NPD, the Republicans or the German People’s Union (DVU), have been represented repeatedly in state parliaments but they always failed to surpass the 5% hurdle in federal elections. Third, the election of parties on the state level takes place in the “shadow of federal politics” (Grotz and Bolgherini 2011). Since the parties represented in the Bundestag are also running for the state parliaments, voters do not only consider what these parties have to offer in terms of state policies but also their performance on the federal level. Above all, state elections offer an opportunity to “teach the parties in federal government a lesson”. Therefore, political science has extensively explored the permeation of state elections by federal politics (Burkhart 2005; Decker and von Blumenthal 2002; Gabriel and Holtmann 2007). One of the theoretical claims is that “voting to teach them a lesson” mainly occurs in the middle of the legislative term when the popularity of the federal government tends to be at its lowest (Dinkel 1977). Do state parliament elections really teach the federal government a lesson? Fig. 5.1 shows the change in aggregated vote shares gained by the government and opposition parties on the federal level in state elections between 1970 and 2022. During the first half of this period, the curve suggests an election cycle shaped by federal politics (Decker and Best 2014). More concretely, until the mid-1990s, the losses by government parties and the gains by opposition parties were usually greatest in the middle of the federal legislative term. Later, the cyclical pattern seems to have disappeared while the “teaching a lesson” effect seems to have persisted. Even if federal government parties were successful in individual state elections, they no longer made significant vote gains after 2002 (Fig. 5.1). From 2012 to 2017, however, the opposition parties also made no gains. Instead, the votes went to parties not represented in the Bundestag. Until 2013, this trend was mainly due to the Pirate party and then to the AfD. Since 2017, no new party that was not represented in the Bundestag but was successful in preceding state elections has succeeded in establishing itself. Nevertheless, state elections are not exclusively decided by the performance of the federal government. One of the very few exceptional cases in this regard was the Agenda 2010 implemented by the SPD-Green federal government from 2003 onwards. Since it met with severe criticism and protest, the SPD suffered massive vote losses at all state elections afterwards. Eventually, Chancellor Schröder posed a vote of confidence after

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CDU/CSU-SPD

CDU/CSU-FDP

2010

CDU/CSU-FDP

SPD/FDP

25

2006

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CDU/CSU-SPD

*

20 15 10 5 0 -5 -10 -15 -20

Government

Opposition

2022

2021

2020

2019

2018

2017

2016

2015

2014

2013

2012

2011

2009

2008

2007

2005

2004

2003

2002

2001

2000

1999

1998

1997

1996

1995

1994

1993

1992

1991

1990

1989

1988

1987

1986

1985

1984

1983

1982

1981

1980

1979

1978

1977

1976

1975

1974

1973

1972

1971

1970

-25

Other parties

Fig. 5.1 Vote share changes of government and opposition parties in state elections (1970–2022) (Remarks Changes in vote shares at state parliament elections are shown in comparison to the previous state parliament election. “Government” includes all parties that were part of the federal government (top line in the figure); “opposition” means parties represented in the Bundestag who were not part of the government; “other” means parties not represented in the Bundestag. If there were several state parliament elections within one year, the average vote gain or loss of the relevant party groups is shown. If parties moved from one category to another in the course of one year—for example, by entering parliament or through a change in federal government—and there was a state election in the same year, this is prorated (relevant for 1982 and 2017). State elections taking place concurrently with federal elections were not included. The vertical dashed lines mark years with federal elections; * SPDGreens-FDP) (Source Authors’ compilation following Decker and Best [2014, p. 180] as well as data from the Federal Election Commissioner and the State Election Commissioners)

the SPD’s heavy defeat in the 2005 elections in North Rhine-Westphalia and thus triggered premature federal elections (Grotz 2005, pp. 470– 471; Chapter 10.2). Equally rare are state elections decided exclusively by internal state factors. One example of such an exceptional case was the planned formation of a “leftist” coalition in Hesse under Andrea Ypsilanti (SPD) after her party won the state elections in 2008. Since Ypsilanti had ruled out any form of government cooperation with the Left party before the election, members of her own parliamentary group refused to elect

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her as state prime minister. This triggered another election, which saw the vote share of the SPD dropping from 36.7% to 23.7%. Unlike the cases of Schröder and Ypsilanti, the outcome of most state elections has been determined by a combination of federal-level and state-level factors. Explanations that see the causes exclusively within the relevant state or in “Berlin” usually fall short. The close interconnectedness of federal politics and state elections has ambiguous consequences for democratic performance. From the perspective of majoritarian democracy, the interference of federal politics in state elections is problematic in two respects. On the one hand, it reinforces the blurring of political responsibilities. For example, a state government can be voted out of office just because “the elections take place at a time when the federal government’s popularity is at a low point”; but conversely it can also “benefit from a favourable date just before or just after a federal election” (Decker and Best 2014, p. 185). On the other hand, the election calendar on the state level can impair the federal government’s capacity to act. In view of upcoming state elections, federal government parties are unlikely to make drastic reforms in order to avoid endangering their electoral success in the relevant state. If state elections are spread out over the legislative period of the Bundestag, there is the risk of a “permanent election campaign” (Schmidt 2016, p. 217), which consistently reduces the will of the federal government to shape policy. From the perspective of consensus democracy, however, the electoral coupling of the federal and state levels leads to higher responsiveness of federal politics. If federal government parties do badly at the state elections, they will rethink their agenda and potentially revise it. Hence, citizens have an effective lever to influence the policies of the federal government during the legislative term. This mechanism may also have a stabilising effect on the political system. After the citizens have induced the federal government to correct its course through state elections, there is less incentive for them to bring about a change in government at the next federal election (Decker and von Blumenthal 2002, pp. 145–146). Since 1979, the European Parliament (EP) has also been directly elected (Chapter 3.2). The legal foundations of these elections rest on a combination of EU and national regulations (Grotz and Weber 2016, pp. 496–497). The EU Treaty codifies the 5-year parliamentary term and the number of EP members (MEPs). As the largest EU state, Germany sends 96 of the 705 members to the European Parliament. Moreover, the Direct Elections Act on the EU level defines uniform principles for

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the European elections. Accordingly, the elections are universal, direct, free and secret, in which each voter—including those with dual citizenship—may participate in only one country. In addition, it states that the EP seats in all member states must be allocated via proportional representation. The individual countries can create constituencies or divide their electoral territory in other ways. They can also introduce a legal threshold that must not be higher than 5% of national votes cast. Within this framework, national regulations for the EP elections define the exact design of the electoral system. In Germany, MEPs are elected in one nationwide constituency through proportional representation. Every voter has one vote for a closed list, like in the electoral system of the Saarland. The political parties can submit their lists, either as a unified federal list or as state lists. The seat allocation is determined by the Sainte-Laguë/ Schepers method. From the first direct elections of the EP, there was a 5% threshold, which was deemed permissible by the Federal Constitutional Court in 1979 (BVerfGE 51, 222). However, in a further judgement of 2011, the FCC declared this 5% threshold unconstitutional and also rejected a 3% hurdle that the Bundestag had legislated for in the meantime (BVerfGE 129, 300; BVerfGE 135, 259). In the political science literature, these decisions by the FCC were sharply criticised (Hrbek 2013). These critics claimed that the court’s main argument—namely that the EP was very different from the Bundestag, both in its structure and its functioning, and therefore a legal threshold that would jeopardise the equality of elections and opportunities could not be justified on the EU level—was particularly problematic. Against this background, the Direct Elections Act was reformed in 2018, stating that a legal threshold between 2 and 5% is now mandatory in constituencies with more than 35 seats. As a consequence, Germany is obliged to reintroduce a relevant threshold. However, as the ratification process has not been completed in all member states, German MEPs were still elected according to pure proportional representation in 2014 and 2019. Therefore, 14 parties from Germany entered the EP in 2019; if the 5% threshold had still existed, it would have only been seven. Regarding voting behaviour, European elections and German state elections have one fundamental thing in common: they are both considered less significant than Bundestag elections. EP elections are “secondorder elections ” (Reif and Schmitt 1980), mainly because citizens have trouble recognising how their voting decision is converted into actual EU policies. At the same time, the political parties invest less in European

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election campaigns and the media reports on them less extensively. This situation has barely changed up to the present day (Braun and Tausendpfund 2020). Therefore, voter turnout is particularly low on the EU level. In the first European elections in 1979, 65.7% of those eligible to vote cast their ballot. In the 1976 Bundestag elections, turnout was at 90.7%. During the 2000s, the participation in EP elections even fell below the 45% mark (2004: 43.0%; 2009: 43.3%), although there was a moderate increase in the most recent elections (2014: 47.9%; 2019: 50.6%). The results of the European elections reflect further characteristics of their lesser political rank. Figure 5.2 shows that other parties not represented in the Bundestag have better chances at the EU level. Except for the 1999 elections, these parties have always received higher vote shares at EP elections than at Bundestag elections. Conversely, federal government parties do a lot worse in EP elections. Their losses compared to the previous federal elections vary between 4.6% and 14%. The national orientation of voting behaviour manifests itself not least in the fact that domestic issues are often more relevant in European election campaigns than EU-related issues. Therefore, the elections to the European Parliament can still be called “second-order national elections ” (Braun and Tausendpfund 2020).

5.4 Conclusion: Proportional and Concentrated Structures of Representation? Elections are the fundamental component of representative democracy. In the Federal Republic of Germany, they have contributed considerably to the stability and legitimacy of the political system. This is particularly true for the phase between the late 1950s and the late 1980s. During that period, the Bundestag electoral system produced an almost perfect proportionality between votes and seats along with a highly concentrated party system. Therefore, the German-type mixed-member proportional system became an international model that many democracies referred to in their debates on electoral reform (Grotz 2019). Moreover, Bundestag elections had high voter turnout. This way, the system achieved both the consensus democracy norm of broad inclusiveness of the electorate and the majoritarian democracy goal of a clearly structured and concentrated competition between political parties. Since the 1990s, the electoral system has been less successful at balancing consensus and majoritarian democracy. Due to the stronger

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SPD-FDP

20

CDU/CSU-FDP

CDU/CSU-SPD

SPD-Greens

CDU/CSU-FDP

CDU/CSU-SPD

15

10

5

0

-5

Government

Opposition

2019

2014

2009

2004

1999

1994

1989

1984

-15

1979

-10

Other parties

Fig. 5.2 Elections to the European Parliament in Germany (1979–2019), changes in vote shares of government and opposition parties at the federal level (Source Authors’ compilation and calculations based on data from the Federal Election Commissioner, showing changes in vote share in European elections compared to the previous Bundestag elections [vertical dashed lines]. “Government” includes all parties that formed the federal government [upper box of the graph]; “opposition” includes all parties represented in the Bundestag but not participating in government; “other” includes parties not represented in the Bundestag)

mechanical effect of the 5% threshold, the proportionality between votes and seats has declined; at the same time, the fragmentation of the party system has increased. Moreover, voter turnout has fallen at all system levels. In this regard, the increasing divide between better-off voters and under-privileged non-voters is particularly problematic because it tends to undermine democratic equality (Merkel and Petring 2012). Moreover, electoral behaviour has become more nuanced and dynamic. Therefore, it is increasingly difficult to form stable majority governments beyond grand coalitions (Chapter 6.3). Finally, the interconnectedness between federal

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politics and state elections has increased the complexity and fluidity of the inter-party competition. Overall, the representative quality of elections has declined—from the perspectives of both majoritarian and consensus democracy. The most important reasons for this change are not institutional but originate from social developments that are partly found in all Western democracies (e.g. weaker party identification) and are partly context-specific (e.g. the consequences of German reunification). Therefore, the close interconnection of proportional and concentrated representation that was characteristic of the first decades of the federal republic cannot be reconstituted through institutional reforms. Nevertheless, it is worth reflecting on adjustments to the legal framework that might improve the representative quality of elections. The first thread of the related reform discussion involves the further expansion of suffrage. In this regard, lowering the voting age has been under consideration for some time. Advocates for a moderate reform are calling for a uniform voting age of 16 throughout Germany. As a result, they are hoping to see higher voter turnout, since the newly enfranchised young people are still in the process of political education in the school system and thus may be more knowledgeable about electoral procedures (Vehrkamp et al. 2015, pp. 22–25). A more radical lowering of the voting age would be the introduction of children’s suffrage. This would mean that parents could exercise their children’s voting rights until they come of age or children could get partial voting rights proportional to their age (e.g. 1/7 of a vote at the age of 12), which would increase incrementally up to the full vote at the age of 18. From the perspective of liberal democracy, voting rights for children appear more problematic when children are further away from the threshold of coming of age. In addition, proxy voting by parents would run counter to the principle of direct elections in their current form. In 2008, the Bundestag rejected the introduction of children’s suffrage with a large majority, but it is still being discussed (Gründiger 2016). There is also a debate on whether foreigners with permanent residency in Germany should be granted voting rights, an idea that also aims to enhance the inclusiveness of the political system. Normatively, this can be primarily justified for the local level, particularly since citizens from other EU countries are already allowed to participate in municipal elections (Bauböck 2016; Chapter 14.2). However, the political inclusion of the relevant groups could also be achieved through simplified rules for

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obtaining German citizenship. This has been the path followed by the federal government since the 2000s, for example, by relaxing the legal requirements for dual citizenship (Hailbronner and Farahat 2015). A second thread of discussion has revolved around a reform of the Bundestag electoral system. Although the electoral system was already modified in 2013 and 2020, its central operational problems—the creation of numerous overhang and compensatory seats and the resulting massive enlargement of the Bundestag—were not eliminated by these reforms. The incalculably large increase in seats could also become a problem for the legitimacy of representative democracy. If parties with lower vote shares than at the previous elections receive the same or even a higher number of seats at the next, this runs contrary to voter intentions. The reform draft of the governing parties from January 2023, which provides for the non-allocation of overhang seats, offers the opportunity to permanently eliminate any enlargement of the Bundestag beyond its regular size of 598 seats. Even if a number of single-member constituencies may remain unoccupied then, it would still represent an acceptable conclusion to the protracted process of electoral system reform, especially since all other reform alternatives would also produce unwanted side effects or would not be able to effectively mitigate seat inflation (Weinmann and Grotz 2022). A third thread of the reform discussion seeks to increase electoral turnout. In this context, there are various proposals for simplifying the voting process (Decker and Küppers 2016). These include longer opening times of polling stations, an extension of postal voting deadlines, voting stations in unconventional locations like supermarkets or online voting. Regardless of the financial and administrative efforts, there is no guarantee that these measures would actually boost turnout. In a formal perspective, compulsory voting would be more effective, meaning that failing to participate in an election would be penalised by fines or other forms of punishment. This might have the advantage of bringing social groups that have been absent from elections for a long time back to the polls in higher numbers (Schäfer 2015). However, despite some positive experiences in other countries, most German citizens are very sceptical of compulsory voting (Klein et al. 2014). A fourth reform discourse revolves around the synchronisation of parliamentary elections in the multi-level system. In order to reduce the diffusion of responsibilities between the federal and state levels and increase voter

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turnout, there has been a proposal to hold state elections either concurrently with federal elections or at a shared, common date in the middle of the federal election term (Detterbeck 2006; Sitsen 2007). In this way, the elimination of a “permanent election campaign” on the state level could also enhance the capacity for federal governments to shape their own policies. On the other hand, a unified election date could even increase the permeation of state elections by federal politics, since they would then take on the character of “national mid-term elections” to an even greater extent. Vice versa, there are also some advantages to state elections taking place on different dates. On the one hand, they are “political seismographs” that the federal government may respond to; on the other hand, separate election dates emphasise the political independence of the individual states, which also manifests in an increased regional diversification of inter-party competition (Chapter 13.3). Therefore, merging election dates would produce less of a change for the better than seems likely at first.

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CHAPTER 6

Political Parties and the Party System

Political parties form the organisational core of representative democracy. They represent the political interests of the citizens by occupying public offices. They seek to enter parliament and government in order to deliver on their manifesto promises and thus get re-elected. Parties occupy an intermediary position between society and the centre of political decisionmaking and thus help to make the democratic system responsive towards the citizens. This central role of political parties is reflected in the Basic Law: “Political parties shall participate in the formation of the political will of the people” (Art. 21, para. 1 GG). However, parties in Germany and other democracies face difficult challenges. Declining membership and diminishing societal acceptance are undermining their claim to speak for large parts of the citizens. At the same time, the German party system has become more fragmented and polarised, which makes the formation of government majorities more difficult. Against this background, a “crisis of the political parties” has been diagnosed many times (von Alemann et al. 2018, pp. 245–258). How do the parties in the German political system succeed in integrating the diversity of societal interests into the democratic will formation and in shaping policies efficiently and effectively? To answer this question, Section 6.1 will present the legal foundations and organisational structures of political parties in Germany. Section 6.2 © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 F. Grotz and W. Schroeder, The Political System of Germany, New Perspectives in German Political Studies, https://doi.org/10.1007/978-3-031-32480-2_6

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will outline the profiles of the parties represented in the Bundestag and describe the development of the party system on the federal level. Section 6.3 will elaborate on how German parties are involved in EU politics and to what extent European integration affects domestic party competition. Section 6.4 will draw conclusions and discuss proposals for the reform of party democracy.

6.1 Political Parties in Germany: The Legal Foundations and Organisational Structures Political parties are organisations of citizens representing shared political worldviews and standing in democratic elections to take over public offices (Decker 2018b, pp. 11–21). This goal differentiates them from other societal organisations—such as associations and interest groups— that do not seek to hold elected positions in parliament and government (Chapter 7.1). Parties are complex organisations. Accordingly, the extant research distinguishes between three “faces” of political parties (Katz and Mair 1993): the party in public office includes its elites in parliament or government, the party on the ground refers to its ordinary members, and the party in central office encompasses its national leadership. Parties act as political intermediaries between the citizens and the state and thus contribute substantially to the legitimacy and performance of representative democracy. In doing so, they fulfil diverse tasks that are usually summarised as relating to four core functions (see Decker 2011, pp. 14– 16): (1) interest representation, (2) policy shaping, (3) political integration and (4) elite recruitment. (1) Interest representation means that political parties articulate, select and aggregate societal interests and give them visibility on the political stage. In order to develop its manifesto, every party has to consider the multifaceted interests and attitudes of their voters and their membership. In pluralist societies, parties usually face the challenge to address their traditional voter clientele and at the same time attract new target groups, which is essential for their electoral success (Saalfeld 2007, pp. 117–119). Therefore, intraparty decision-making can be fraught with tensions and conflict. Nevertheless, to be politically successful, parties must present their internal compromises as clear-cut policies and advocate offensively

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for them in public debates, in election campaigns and in parliament. Even if a party manifesto manages to accommodate the diverging positions of its members, it will not automatically reflect the preferences of the whole society. On the contrary, parties typically articulate specific interests and create a related profile in order to attract particular segments of the electorate. However, it is essential that all parties together—as the party system—address and represent the entire range of societal interests to make democracy work. If certain groups no longer feel that the existing parties advocate for their interests, “representation gaps” may emerge that affect the legitimacy of the established party system and open up a space for new parties (Merkel 2017). (2) Political parties shape policies by bringing proposals into the parliamentary process and trying to implement them. Participating in government is particularly conducive to fulfilling this function. But parties can also influence policy-making when in opposition (Helms 2002). This opportunity is especially favourable in consensus democracies like Germany, where opposition parties are strongly integrated into the work of parliamentary committees (Chapter 9.2), are able to use their veto powers in the Bundesrat (Chapter 11.2) and may take a case to the Federal Constitutional Court (Chapter 12.1). Moreover, opposition parties can confront the government in parliamentary debates with their alternative proposals, as is common in majoritarian democracies. However, parties can also use their role in opposition in a destructive manner, by repudiating the “ruling elites” instead of proposing issue-based alternatives. This behaviour is typical of populist or extremist parties that are not considered eligible for government coalitions by the other parties. Extremist parties can only influence the government’s agenda through their electoral “blackmail potential” (Sartori 1976; Saalfeld 2007, p. 175). (3) Political parties also fulfil an integrative function by offering their members and supporters opportunities for political participation and providing them with political information and opinions. This way, they contribute to the political socialisation of citizens. In addition to traditional paths of party communication, such as meetings, rallies, seminars, or publications, social media plays a key role. Facebook, Twitter and other messenger services offer political

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parties the opportunity to communicate directly with their sympathisers, increase their reach and address new target groups. At the same time, communicating via social media poses great risks and challenges, as the rapid spread of fake news and the emergence of “filter bubbles” show (Chapter 8.2). In Germany, the main parties are supported in their communication and socialisation tasks by political foundations (Heisterkamp 2018, pp. 170–180). These foundations are registered as formally independent associations. Nevertheless, they are closely connected to the respective parties represented in the Bundestag and funded in their various outreach activities from the federal budget. At present, there are seven political foundations. These are the Friedrich-Ebert-Stiftung, linked to the Social Democratic Party (SPD), the Konrad-Adenauer-Stiftung and the HannsSeidel-Stiftung, linked to the Christian Democratic Union (CDU) and Christian Social Union (CSU) respectively, the FriedrichNaumann-Stiftung, which is linked to the Free Democratic Party (FDP), the Heinrich-Böll-Stiftung (The Greens), and the RosaLuxemburg-Stiftung (The Left). After entering the Bundestag in 2017 for the first time, the right-wing populist Alternative for Germany (AfD) established its own foundation, called the Desiderius-Erasmus-Stiftung (DES). Hitherto, the Bundestag assigned the state funds for political foundations during its annual budget negotiations, i.e. there was no separate funding law. The amount that the individual foundations receive depends on how strongly their party is represented in the Bundestag. Furthermore, in 1998 all existing foundations issued a joint declaration that new foundations are generally eligible for state funding after their party has entered the Bundestag for the second time. Although the AfD has met this requirement since 2021, the other parties have denied the DES resources from the federal budget, arguing that foundations of parties that are not faithful to the democratic constitution do not qualify for such funding. In October 2022, the AfD lodged a complaint against this practice before the Federal Constitutional Court, which stipulated in February 2023 that the funding of political foundations be based on a legal foundation. However, the FCC has not yet decided whether the DES will receive state funding or remain excluded from it due to its insufficient faithfulness to the constitution.

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The political foundations offer many opportunities for political education and exchange through bursaries, events and publications, which are used by their respective party members and supporters but can also be accessed by the general public. Overall, the plurality of worldviews among the political foundations ensures that citizens can freely choose which opportunities they would like to take up and thereby get motivated to become politically active inside and outside the parties. (4) Finally, parties do important work in political recruitment. More concretely, they help to fill public offices in the multi-level system by nominating suitable candidates for the respective elections. In legislative institutions alone, Germany has 96 seats in the European Parliament, a minimum of 598 seats in the Bundestag, almost 1,900 seats in the 16 state parliaments and around 200,000 seats in the councils of cities, municipalities and counties. Although several seats in the latter bodies are usually filled by open lists and independents (Jun 2015, p. 21), party candidates predominate there as well. Moreover, the parties have to find qualified staff for political positions in the executives on the federal, state and municipal level. The same applies for the parties’ headquarters, their state and local offices, MPs’ offices, the administration of their parliamentary groups and for top positions in the various ministerial departments. In addition, they fill important positions in institutions beyond parliament and government, such as the supervisory boards of municipal utilities, the supervisory boards of the public broadcasters and the judgeships at the highest courts. Political parties are therefore the gatekeepers for a multitude of public offices that are not only prestigious and well paid but also come with multiple demands and expectations. For instance, candidates for the Bundestag are supposed to be “presentable in public, loyal to and active within their party as well as able to bring a breath of fresh air from outside the party with them” (Cordes and Hellmann 2020, p. 83). Not many people may possess a profile that combines a high level of professional skill, party loyalty and independence. Therefore, political staffing decisions by parties have the potential to incite both internal and societal conflict, particularly since the offices they are seeking to fill are usually highly competitive and publicly visible. Frequently, positions in politics

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and public administration are handed out on the basis of political expediency (proportionality, representativeness, balancing party wings), and sometimes also for “loyal service” as Max Weber already stated in his critique of “office patronage” (Weber 1920 [1919], p. 406). Therefore, there have been demands to prevent political parties from filling top-level positions in public administration and to allocate all of them according to strictly transparent and competitive procedures (“selection by merit”; Wiesendahl 2012, p. 151). These four functions of political parties are equally important for making representative democracy work. Their key role in the intermediation of interests is also enshrined in the Basic Law (Art. 21 GG; Chapter 2.2). It is likewise specified in the Political Parties Act (Parteiengesetz, PartG) of 1967, which states that the parties “participate in the formation of the political will of the people in all areas of public life” (Section 1, para. 2 PartG). In order to guarantee that parties in the German political system fulfil their eminent role and conform with democratic principles, further legal provisions regulate their activities in the three core respects party bans, intra-party democracy and party funding which are explained in the following. Political parties that operate outside the framework of the Basic Law and aim to threaten democracy may be banned according to Article 21, paragraph 2 of the Basic Law. The background to this regulation was the historic experience that the National Socialist Party, which was inimical to democracy, was able to get into power through general elections in 1933. Nevertheless, banning a political party is a grave form of interference with political competition and affects freedom of organisation and opinion. Therefore, the legal barriers to party bans are extraordinarily high. Only the Federal Constitutional Court (FCC) can declare a party unconstitutional, and this may only occur if the relevant request was made by the federal government, the Bundestag, or the Bundesrat (Section 43, para. 1 BVerfGG; Chapter 12.1). The history of the Federal Republic of Germany has seen a few court cases on party bans (Foschepoth 2017; Heinig and Schorkopf 2019). The actually banned parties included the neo-Nazi Socialist Reich Party (Sozialistische Reichspartei, SRP) in 1952 and the left-wingextremist German Communist Party (Kommunistische Partei Deutschlands, KPD) in 1956. In 1993, two more court proceedings on party bans were initiated, against the Free German Workers’ Party (Freiheitliche Deutsche Arbeiterpartei FAP) and the National List (Nationale Liste, NL).

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However, the FCC rejected these cases because the two organisations lacked a party character, whereupon both were banned by the respective interior ministers (Wietschel 1996). Eventually, two ban proceedings were initiated against the right-wing extremist National Democratic Party of Germany (Nationaldemokratische Partei Deutschlands, NPD). The FCC dismissed the first proceeding in 2003 due to procedural issues and did not pronounce a ban on this party in the second proceeding either. In its latter decision of 2017 the FCC emphasised that the NPD was indeed pursuing anti-constitutional goals (BVerfGE 144, 20, 22–23). However, since the party only had a very small electorate and limited membership, and because it faced financial problems and was not embedded sociopolitically, there were insufficient indications that their actions, though hostile to the Basic Law, would “lead to success” (BVerfGE 144, 20, 23). This line of argument shows very clearly how cautious the FCC has been in using “the sharpest and, besides, double-edged weapon of constitutional democracy” (BVerfGE 144, 20, 20). The Federal Constitutional Court also referred in its NPD judgement to potential sanctions beyond a party ban, which were enshrined in the Basic Law by the Bundestag and Bundesrat in 2017. Accordingly, anti-constitutional parties shall be excluded from state funding and their favourable fiscal treatment shall cease, even if they have insufficient means to achieve their goals (Art. 21, para. 3 GG; BVerfGE 144, 20, 242). Moreover, political parties can be monitored by the federal and state agencies for state protection and counterterrorism. At the same time, such monitoring decisions have to be founded on substantial evidence, as the cases of the Left party and the AfD show (Droste 2007, pp. 175–181; Thrun 2019). In order to ensure that political parties fulfil their essential functions as intermediaries between the citizens and the state, their internal organisation must “conform to democratic principles ” (Art. 21, para. 1 GG). More specifically, it should “allow individual members to participate, on an adequate scale, in the party’s policy and decision-making processes” (Section 7, para. 1 PartG). The Political Parties Act provides a general framework for party organisation, with some leeway for the parties to add their own features—in the case of the Greens, broader participation by its membership is permitted (Poguntke 2002, p. 261). Vertically, the parties “shall be organized in regional and/or local branches” (Section 7, para. 1 PartG) that usually correspond to the levels of the federal state organisation (Poguntke 2002, pp. 261–262; Table 6.1). Their lowest

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organisational units are located at the level of municipalities or city districts. While there can be an insufficient number of members in some rural areas to form a local party branch (Ortsverband), most cities have several local branches of the same party. County branches (called “subdistricts” in the SPD) form the next organisational level. They bring together the local units and correspond to the borders of cities and counties. If a party has no local branches in some regions because of low membership numbers, the county branches (Kreisverbände) are the lowest organisational level. The state branches (Landesverbände) are the next higher level and usually correspond to the individual states (Länder). In addition, some parties like the SPD have established organisational units between the state and the county level (Poguntke 2002, pp. 261–262). The federal branch (Bundesverband) is the highest-level organisational unit of a political party. In the case of the CSU—a party that only exists in Bavaria—the state branch is the highest level. Horizontally, there are specific bodies on every level of a party’s organisation, which follow a separation-of-powers logic. Accordingly, the party convention forms the “legislature”, while the executive boards and committees are the “executive” and the party arbitration boards are the “judiciary” (Spier and von Alemann 2013, p. 446). Table 6.1 Organisational structure of German political parties Legitimising bodies (“legislative”)

Governing bodies (“executive”)

Arbitration bodies (“judicative”)

Federal level

Federal convention

Federal party tribunal

State level

State convention

County level

County convention

Municipality/city district

General assemblya

Federal executive board, executive committee, party head quarters State executive committee, state head quarters County executive committee, regional office Local executive board

State party tribunal County party tribunal –

Note a On the municipal/city district level, meetings of all members are the rule. On the higher levels, the party conferences are usually composed of delegates selected by the respective subordinate organisational units Source Authors’ compilation

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The party convention, called the general assembly on the lowest level (Sect. 9, para. 1 PartG) includes the members of a territorial branch (Bukow and Poguntke 2013, p. 182). Party statutes can also stipulate that “in supra-local branches, the members’ assembly may be replaced by a delegates’ assembly whose members shall be elected, for a maximum of two years, by the members’ or delegates’ assemblies of the subordinate branches” (Section 8, para. 1 PartG). From the county level upwards, party conventions usually take place as conferences of delegates. Party conventions meet “at least once in every two calendar years” (Section 9, para. 1 PartG). Regional party branches can include additional bodies in their statutes, such as advisory boards, “that will support the policy formation and decision-making processes” (Sect. 8, para. 2 PartG). However, these additional bodies cannot replace the party convention, which is the highest legitimating and decision-making body and decides on fundamental issues, such as election manifestos and changes to the party statutes. Moreover, the party convention elects the respective leadership, e.g. the chairperson and the executive committee members (Section 9, para. 4 PartG). Because of the delegate principle, the party membership cannot elect the federal or state executive committee directly. General elections of the party leader, such as the one held by the SPD in 2019, only have an “advisory character and their results must be confirmed by the party convention” (Detterbeck 2018, p. 131). Apart from general leadership elections, parties are free to use different means of direct democracy for their internal decision-making. The SPD, for example, polled its members about entering into a grand coalition with the CDU/ CSU in 2013 and in 2018, a move that was not contested by the Federal Constitutional Court (Jun 2018, p. 940). The executive board (Presidium) and the executive committee are tasked with leading the party (Bukow and Poguntke 2013, p. 182). Just as every territorial association holds its own party conventions, there are executive committees at all levels. They consist of members elected by the conventions and others who are part of the committee due to their public office. For instance, the chancellor, the Bundestag president or the Bundestag vice president and the leader of the Bundestag party group are ex officio members of the CDU Federal Board, if they are members of the CDU (Section 33, para. 1 CDU statutes). The federal and state party leadership are supported by professional staff in their central office (Bukow and Poguntke 2013, p. 192), which is essential for strategic management and for everyday work (Bukow and Poguntke 2013, pp. 192–194). Party

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headquarters are run by the general secretaries or managing directors, who coordinate political activities, intermediate between the different party branches and take care of public communication (Korte et al. 2018; Bukow 2010). In the case of conflicts between a territorial branch and individual party members as well as in controversies about party statutes (Section 14, para. 1 PartG), arbitration tribunals make binding decisions and thus form the “judiciary” of the party. Tribunal members are elected for a maximum of four years and may neither be members of an executive committee nor be employed by the party (Section 14, para. 2 PartG). Arbitration tribunals are only mandatory for the highest level of a party’s organisation. If a party establishes arbitration tribunals below the state level, one tribunal may be responsible for several county branches (Section 14, para. 1 PartG). Beyond this multi-level organisational structure, political parties may have further units that may be more or less formalised (Bukow and Poguntke 2013, pp. 183–187). There are intra-party associations of women, senior citizens, workers, the self-employed, etc. or working groups dealing with specific policy areas (social affairs, economic issues, etc.). Every party represented in the Bundestag also has a youth organisation. Young people from the age of 14 and young adults, usually up to the age of 35, can join these youth organisations without having to become a member of the mother party (Gruber 2009, pp. 109–110). Although the youth organisations are closely interlocked with their mother party, they articulate their own policy positions on policies and personnel issues. Furthermore, most parties have ideological wings or movements that are partially formalised and partially serve as informal networks (MüllerRommel 1982). They can play an important role in intra-party conflict management as well as in the development of the party manifesto. Sometimes, such movements also attempt to influence political parties from the outside. One example is the “Union of Values” (Werteunion), founded in 2017 outside the CDU as an independent association and not recognised by the party’s executive committee as a subdivision. The Union of Values is mainly composed of CDU members seeking to re-emphasise the conservative profile of the Christian democrats. It has been frequently criticised for its closeness to the right-wing populist AfD (Oppelland 2020, p. 60). The diverse intra-party groupings often do not attract much publicity but they sometimes seek media attention in order to influence the ideological and personnel development of their party. Even if they do not have any

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formal powers, they are an important part of intra-party will formation and decision-making (Korte et al. 2018, p. 78). In contrast to parties in other democracies like the United States or France, political parties in Germany are legally defined as associations of “natural persons” and therefore must have individual members (Section 2, para. 1 PartG). Members are crucial for parties to perform their functions as intermediary organisations (Scarrow 2017, pp. 13–14). First, membership fees are a significant source of income for the party (see below). Moreover, members significantly contribute to their party’s ability to mobilise—for example, through the conversations they have in their private and professional environments, their participation in public events, and their support in election campaigns. Although many party activities are organised and performed by professional employees, the engagement of “ordinary” members is essential for a party’s image as a self-organised, authentic part of society, which helps it to exercise its integrative function. At the same time, members increase the quality of interest representation by articulating their perceptions and preferences in intra-party debates and decision-making processes. In this way, they influence the programmatic positions of the party, which are essential for it to fulfil its policy-shaping function. Finally, party members form a pool of candidates for intra-party positions and public offices, a crucial condition for fulfilling the recruitment function. Against this background, the decline of party membership is widely considered an indicator of the crisis of party democracy (Klein et al. 2011, p. 19). Indeed, the parties represented in the Bundestag have lost a significant number of members in the past decades (Table 6.2). Between 1985 and 2021, their overall membership fell from 1.9 million to 1.2 million (−37.4%). This decrease is all the more remarkable, as the population of the Federal Republic of Germany grew by 30% through reunification in 1990 and since then two new parties have entered the Bundestag (the Left party and the AfD). However, a closer look at membership development reveals more nuanced patterns. In 1990, there was a significant increase in party membership to 2.4 million, but this was a special effect owing to reunification. On the one hand, the Party of Democratic Socialism (PDS), the legal successor to the hegemonic state party in the GDR (Socialist Unity Party of Germany, SED), inherited all its remaining members (Neugebauer and Stöss 1996). This briefly made it the party with the third largest membership in unified Germany, before it experienced a significant decline; now, the Left party, as the successor to the

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PDS, has fewer members than the Greens and the FDP. On the other hand, the membership numbers of the CDU and FDP soared after 1989, since they incorporated the members of the East German CDU and the Liberal Democratic Party of Germany (LDPD) in their ranks; these were “bloc parties” in the GDR that were formally independent but politically aligned with the SED. Many members of the East German CDU and the LDPD left the parties after their fusion with their Western sister organisations. Therefore, the membership of the CDU and FDP fell in the early 1990s, even below the respective numbers from 1985. In contrast, the SPD and the Greens could not rely on “inherited” party organisations in East Germany and were only able to win relatively few new members there (Tiemann 1993; Hoffmann 1998). The overall membership decline since the mid-1980s masks considerable differences between the Bundestag parties. The SPD has lost the most members (−57.0%), followed by the CDU (−46.5%). The CSU also has significantly fewer members today than it had three-and-a-half decades ago (−28.7%), but this decline only began in the 2000s. Nevertheless, the CSU is still the German party with the most members in relation to the (Bavarian) population and to its electorate. In contrast, the smaller Bundestag parties have had a positive record overall. The FDP that kept its membership relatively constant until 2020 attracted many new members during the 2021 election campaign (+23.2% since 2000). The Greens have expanded the most from 2000 to 2021 (+169.6% since 2000). The AfD also experienced a considerable influx of members after its foundation in 2013 (+70.3%) but its membership numbers have remained relatively low and have slightly decreased more recently (Wehner 2021). The Left party, formed as a merger of PDS and a party called Labour and Social Justice—The Electoral Alternative (Wahlalternative Arbeit und soziale Gerechtigkeit, WASG) in 2007, experienced an uptick after its foundation but then saw declining membership numbers, which ultimately stabilised at a low level. Moreover, there is a significant difference between East and West Germany. Relative to population, membership of all political parties in the East is only around half of that in the West (Niedermayer 2020b, p. 58). The only exceptions are the Left, and, to a lesser extent, the AfD (Niedermayer 2020b, p. 22). Thus, the East German parties are similar to those in other post-socialist countries in Central and Eastern Europe, where party membership is rather low (Decker 2018b, pp. 272–273).

182,852 186,198 179,647 181,021 170,117 153,890 144,360 136,014 130,379 −52,473 −28.7% −50,642 −28.0%

CSU 916,383 943,402 817,650 734,667 590,485 502,062 442,814 404,305 393,727 −522,656 −57.0% −340,940 −46.4%

SPD 65,425 168,217 80,431 62,721 65,022 68,541 53,197 66,032 77,276 +11,851 +18.1% +14,555 +23.2%

FDP 37,024 41,316 46,410 46,631 45,105 52,991 59,418 107,307 125,737 +88,713 +239.6% +79,106 +169.6%

Greens

– – – – – – 16,385 31,896 30,125 – +12,438 +70.3%

−11,041 +15.4%

AfD

– 280,882 114,940 83,475 61,270 73,658 58,989 60,350 60,670 –

PDS/Lefta

1,920,274 2,409,624 1,896,721 1,725,237 1,503,880 1,356,456 1,219,563 1,205,014 1,202,118 −718,156 −37.4% −523,119 −30.3%

Total

Notes a Up to 2005, figures pertain to the PDS, which merged in 2007 with the WASG, creating a new party, Die Linke (The Left). b The indicated ratios for the Left and the AfD refer to their respective year of foundation (Die Linke 2007: 71,711; AfD 2013: 17,687 members) Source Authors’ compilation based on Niedermayer (2022). Figures relate to 31 December of the respective year

718,590 789,609 657,643 616,722 571,881 505,314 444,400 399,110 384,204 −334,386 −46.5% −232,518 −37.7%

CDU

Membership of Bundestag parties

1985 1990 1995 2000 2005 2010 2015 2020 2021 /\ (1985–2021) /\ (2000–2021)b

Table 6.2

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The extant literature provides different explanations for and assessments of the membership trends in German parties. Some scholars see the decline in party membership as a serious threat to representative democracy, while others interpret it as a “process of normalisation” (Klein et al. 2011, p. 20) that can be observed in all Western democracies (Scarrow 2017, pp. 6–8). One important reason for the low interest of most citizens in joining a party is the fact that the opportunities for political participation have significantly increased since the 1970s (Gabriel and Niedermayer 2002, p. 280). Further reasons relate to the insufficient attractiveness of the traditional parties. In the 1970s and 1980s, the CDU/CSU and the SPD were able to retain numerous members against the backdrop of the bipolarised competition between them (Wiesendahl 2006, p. 32), whereas they have not succeeded in doing so in the recent past. Conversely, the Greens seem to be particularly attractive for younger citizens who want to become active in party politics. Almost as significant as the number of party members is their sociostructural composition. In general, the individual parties are attractive to various groups of citizens because of their ideological profile, which is also the reason for their varying membership base. Ideally, the most important societal groups ought to be represented in all parties proportionally to the overall population, since “a socially unbalanced composition of party memberships comes with the danger of socially unbalanced political representation” (Klein et al. 2019, p. 98). Despite the aspiration that the political parties should “mirror” the composition of the citizens, there is considerable asymmetry in their membership. In 2017, only 28% of all party members were women, who are therefore clearly underrepresented (Klein et al. 2019, p. 86). At the same time, the proportions of female members varied considerably. The Greens (Bündnis 90/Die Grünen) had the highest percentage of female members (41%) while the AfD had the lowest (around 18%; Niedermayer 2020b, p. 23). Concerning the age, there is a clear shift towards the over65s. While this group made up around 25% of members of all parties in 1998, a share roughly consistent with the overall population, it already made up 48% of party members in 2017, although their proportion in the population rose only to 27% (Klein et al. 2019, p. 87). At the same time, younger people are underrepresented in political parties. Thus, there is a “process of massive overaging” (Klein et al. 2019, p. 87), although the situation varies between individual parties. For instance, the Left and the

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Greens had the most members under 35 in 2017 (15% and 14% respectively), while the CDU and CSU brought up the rear in this category, with 7% and 6% respectively (Klein et al. 2019, pp. 87–88). At the same time, the education level of all party members continued to rise between 1998 and 2017. The share of party members with university degrees rose from 37 to 44%. Therefore, it is clearly higher than that of the population average, although the proportion of Germans with higher degrees has also increased (Klein et al. 2019, pp. 88–90). The professional affiliation of party members also diverges from the overall population. Self-employed people and freelancers, as well as public servants, are overrepresented among party members (Klein et al. 2019, p. 91). Again, this does not equally apply to all parties. In 2017, the CSU had the highest (28%) and the SPD had the lowest (7%) proportion of self-employed members. Civil servants and other employees in the public sector made up 44% of members in the SPD and the Greens, while the FDP had the lowest share of this group (27%). At the same time, only 3% of FDP members were blue-collar workers, while their proportions in the SPD and the Left party were significantly higher, at 16 and 17% respectively (Klein et al. 2019, pp. 91–92). The proportion of trade union members among SPD members fell from 45 to 35% between 1998 and 2017. Nevertheless, no other party has attracted so many trade union members. Only 13% of the overall population were members of a trade union in 2017 (Klein et al. 2019, pp. 94–95). In contrast, the Christian democrats are still at the top when it comes to religiously affiliated party members. In 2017, 52% of CDU members and 78% of CSU members were Catholics, while 38% (CDU) and 15% (CSU) were Protestants. The proportion of party members who were not in one of the two main churches was particularly high in the Left party, at 78% (Klein et al. 2019, pp. 95–97). Regardless of the considerable inter-party variation, women, younger people and less educated people are structurally underrepresented among party members. At the same time, there is evidence that younger people with higher education show much more engagement within parties than the “passive” average members (Decker 2018b, pp. 273–274). This might somewhat mitigate the age-related representation deficit but also enhances the education gap. In order to perform their multiple tasks, political parties need appropriate financial means, which must be sourced and spent in compliance with the legal regulations about party financing. To begin with, all

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donations to political parties must be disclosed in order to prevent them from being dominated by wealthy individuals, organisations, or companies “behind the scenes” (transparency). In addition, equality of opportunity should be guaranteed, meaning that parties with lowerincome affiliates should have no competitive disadvantage compared to others supported by financially stronger groups. Consequently, equalisation payments provided by public funds are necessary. At the same time, political parties as societal organisations are “rooted in the people” (Pehle 2018, p. 4) and have to keep their independence from state influence; therefore, they must not be funded exclusively by public resources. In Germany, a “party funding regime” (Koß 2015, p. 134) capable of meeting all these demands has evolved very tentatively. The main reason is that the Bundestag autonomously decides on these issues; hence, the parliamentary parties make regulations “on their own account” (Lang 2007). The main milestones towards a balanced party funding regime were set in reaction to rulings of the Federal Constitutional Court (Pehle 2018, p. 5). The first important turning point was a judgement from 1958, in which the FCC declared that donations to political parties were no longer to be deductible from taxes to an unlimited amount, since this practice improperly favoured persons and companies with higher incomes (BVerfGE 8, 51). At the same time, the judges allowed party funding from the state budget, which the Bundestag parties took up in the revision of the legal provisions. In 1966, the FCC restricted the public funding of political parties to the reimbursement of their election campaign costs (BVerfGE 20, 56). However, it soon became clear that expenditure on election campaigns could not be clearly separated from other party activities. Therefore, the FCC revised its previous ruling in 1992, allowing partial state funding for the overall range of party activities (BVerfGE 85, 264). At the same time, it “barred the parties from full access to the public purse” (Volkmann 1992, p. 325) by limiting the proportion of state subsidies (the relative upper limit) as well as the overall amount of state funding (the absolute upper limit). This judgement led to the fundamental reform of the Political Parties Act in 1994. The revised law stipulated that the federal president should convene an expert committee on party funding.1 The commission established by Federal President Johannes Rau (1999–2004) proved to be particularly 1 Since 2004, the convening of the expert commission on party funding is no longer obligatory (Section 18, para. 6 PartG).

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influential. In the aftermath of several party donation scandals in the late 1990s, the commission proposed criminal charges for intentionally false financial reporting in addition to the existing financial penalties (BTDrucksache 15/3140, pp. 14–15; Koß 2015, p. 142). However, the main task of the commission was to elaborate on a “party-specific price index” that reflects typical expenditures by political parties (BT-Drucksache 15/ 3140, p. 12). On this basis, the amount of party funding was automatically adjusted in line with inflation. In summer 2018, the grand coalition of CDU/CSU and SPD fast-tracked a legal amendment that raised the absolute upper limit by e25 million (Merten 2020, p. 76). The opposition parties brought a case against this to the Federal Constitutional Court, which found the party law amendment unconstitutional in 2023. The reason for this was not the increase of the upper limit as such but the insufficient justification for the additional financial need (Sewtz 2023). Today, the funding of German political parties is governed by a differentiated set of rules. The principle of transparency is enshrined in the constitution. Accordingly, the parties “must publicly account for their assets and for the sources and use of their funds” (Art. 21, para. 1 GG). This is implemented through annual financial reports, audited and published by the president of the Bundestag (Sect. 23 and 23a PartG). All donations over e10,000 must be disclosed. If a party receives a donation of more than e50,000, it must disclose this “immediately” to the president of the Bundestag (Sect. 25, para. 3 PartG). The donation is then published as a Bundestag document naming the donor (Sect. 25, para. 3 PartG). In addition, the Political Parties Act identifies a number of organisations and groups who are not permitted to donate to political parties, such as parliamentary party groups or public enterprises (Sect. 25, para. 2 PartG). It is a criminal offence to intentionally provide false information in the financial report or to evade public reporting (Sect. 31d PartG). State funding for political parties is relative to the “degree of rootedness of a party in society” (Gösele and Holste 1995, p. 423). The respective amount is determined on the basis of the party’s electoral success at EU, federal and state elections as well as its revenue from fees paid by members and elected representatives (Sect. 18, para. 1 PartG). On the one hand, parties receive reimbursement of campaign expenses if they get “at least 0.5 percent of valid party list votes according to the final election results at the most recent EU or Bundestag elections or 1.0 percent at a state parliament election” (Sect. 18, para. 4 PartG). For the first four million votes, parties receive e1.03 for every vote; they get e0.85 for

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every vote after that (Deutscher Bundestag 2020, p. 3). On the other hand, every euro that a party receives from the fees paid by its members, elected representatives or through donations, is topped up by e0.45 from the state, although these subsidies are only granted up to e3,300 per person per year (Sect. 18, para. 3 PartG). Moreover, the total sum of state subsidies must not be higher than the revenue generated by the party itself (relative upper limit ). Finally, there is an absolute upper limit for public funding provided to all parties. It is adjusted relative to inflation every year based on the party-specific price index; currently, it is at e190 million (Sect. 18, para. 2 PartG). Under this funding regime, the revenue situation of German parties relates both to their size and to their electoral success (Table 6.3). In absolute terms, the SPD and CDU have the highest revenues (2017: e166 million and e157 million respectively), followed by the CSU, FDP and the Greens, with around e40 million each as well as the Left with around e30 million per year. The AfD comes last—which is not surprising, given that it is a relatively new party with a significantly lower budget. Nevertheless, its revenues more than doubled between 2013 and 2017 while the income level of the other parties has remained relatively constant since 2009. Types of revenue show different profiles, too. Membership fees are an important budget item, which again underscores the significance of party members. These revenues make up a particularly large share of the budgets of the SPD and the Left and a relatively low share of the budgets of the AfD and FDP. Revenues from donations show the opposite pattern. The SPD and the Left have the lowest share of donations by natural persons and only marginal donations by businesses (legal persons). The FDP mobilises particularly high amounts from private persons and companies in relation to its overall revenue, which is hardly surprising considering its business-friendly agenda. A few further items also stand out, such as the relatively high percentage of revenue that the SPD derives from its assets (such as property) and private equity. Revenues from events and publications are most significant for the CSU, but they are also relevant for the CDU and SPD. Remarkably, state subsidies are the biggest item among all sources of party revenue (at around 30%). The only exception is the SPD, where membership fees still make up a slightly higher amount. The proportion of state funding is highest for the AfD and the Left party, but even there, it remains well below the relative upper limit of 50%. However, this data does not include the state funding of political foundations, which is more

Year

173.3 164.6 166.1 162.7 151.1 156.7 42.0 47.6 43.4 43.3 33.3 38.7 30.6 40.2 43.5 27.3 27.6 31.6 7.7

Total (in em)

26.6 30.1 31.1 25.4 25.6 24.0 22.3 21.0 23.8 18.1 19.7 20.3 19.6 21.7 22.5 36.6 33.2 31.8 19.9

Membership dues

12.9 14.4 15.8 11.3 11.6 12.8 7.2 6.7 8.5 6.0 8.4 5.4 18.7 22.4 22.4 9.8 13.0 15.3 0.0

Contributions by office holders

Types of income (in %)

Income of Bundestag parties (2009–2017)

2009 2013 2017 CDU 2009 2013 2017 CSU 2009 2013 2017 FDP 2009 2013 2017 Greens 2009 2013 2017 Left 2009 2013 2017 AfD 2013

SPD

Party

Table 6.3

6.3 5.5 4.1 2.5 1.9 1.3 1.2 0.5 2.8 0.9 1.4 1.0 0.9 0.4 0.4 1.2 0.6 0.1 0.0

Assets

5.9 2.0 3.2 0.0 0.0 0.0 0.0 0.0 0.0 1.0 0.4 0.3 0.0 0.0 0.0 0.0 0.0 0.3 0.0

10.4 9.3 7.0 8.7 7.7 8.2 19.0 15.4 14.5 6.9 5.4 3.5 3.0 2.1 1.6 0.9 0.9 0.8 0.1

8.4 7.3 6.9 16.1 13.3 14.4 11.8 18.0 12.6 24.0 21.6 27.0 14.8 10.7 11.3 9.9 9.0 8.5 53.7

2.4 1.8 1.9 9.2 7.1 8.1 9.8 12.8 10.2 13.4 11.1 11.9 3.0 1.7 2.2 0.7 0.3 0.0 2.2

Business Events/ Donations activities publications Natural Legal persons persons

22.9 29.1 29.6 25.8 31.8 30.9 27.9 25.2 27.2 29.2 31.5 30.3 36.3 37.5 36.4 39.3 40.4 38.6 24.0

Public funds

(continued)

4.4 0.6 0.4 1.0 1.0 0.4 0.8 0.4 0.6 0.5 0.4 0.3 3.8 3.5 3.3 1.6 2.6 4.5 0.0

Other

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2017

Year

18.4

Total (in em)

(continued)

16.3

Membership dues

3.6

Contributions by office holders

Types of income (in %)

0.0

Assets

1.2

0.2

35.9

0.9

Business Events/ Donations activities publications Natural Legal persons persons 0.8

Other

41.1

Public funds

Source Authors’ compilation following Mannewitz and Rudzio (2022, pp. 161–164), BT-Drucksache 18/4300, BT-Drucksache 18/4301 and BTDrucksache 19/7000. Years listed are the years of the respective federal elections

Party

Table 6.3

202 F. GROTZ AND W. SCHROEDER

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than three times as high as the overall state funding of parties (Pehle 2018, p. 8). It also excludes the amount that flows to the party groups in the Bundestag and the state parliaments. If these “indirect payments” were taken into account, party funding would reach a far higher level. However, the FCC stated in one of its judgements in 1986 that the political foundations “fulfil their statutory tasks with sufficient organisational and personal independence from the parties they are affiliated to” and therefore no “hidden funding of political parties” was taking place (BVerfGE 73, 1, 31). Altogether, the funding regime has significantly contributed to the organisational consolidation of the political parties in Germany. However, the question of the extent to which they fulfil their intermediate role in the political will formation and decision-making inclusively and efficiently can only be answered when we look at the party system.

6.2

The Federal Party System

The set of interactions between political parties that compete and cooperate with each other in a representative democracy is called the party system (Niedermayer 2013b, p. 84; Caramani 2020, p. 232). The political parties only reflect the diversity of interests and conflicts within a society if they are all taken together. Therefore, the party system displays the range and quality of democratic representation. In most established democracies, the party system has a consolidated structure, as the individual parties occupy certain programmatic positions. At the same time, the interrelations of parties are rather dynamic, since they compete with each other and constantly have to revisit their profile in order to gain as many votes as possible. On the other hand, parties also need to work together in parliament and government in order to pursue their goals and carry out their policy-shaping function. Like in other West European countries, political parties in Germany emerged in the context of social cleavages that led to the formation of different social milieus with their own ideological views and interests (Lipset and Rokkan 1967). To represent these milieus politically, parties that stood in sharp distinction to each other were formed. Therefore, the main parties in Germany belong to distinct families that differ according to their basic ideological orientation (Jun and Höhne 2012). Five cleavages, which emerged in different historical periods and still shape the

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Table 6.4 Social cleavages and party families in Germany Cleavage

Period of Origin

Party Family

Parties Represented in the Bundestag

State vs. Church

Early eighteenth century

FDP CDU, CSU

Labour vs. Capital

Late nineteenth century Early twentieth century Late twentieth century Early twenty-first century

[Liberals vs.] Christian Democrats Social Democrats (Post-) Communists Greens

The Left

Right-Wing Populists

AfD

Reform vs. Revolution Materialism vs Post-Materialism Open vs. closed society

SPD

The Greens

Source Authors’ compilation following Caramani (2020, p. 233)

profile of the parties represented in the Bundestag today, have turned out to be dominant (Table 6.4). The early development of the German party system was determined by two social cleavages. From the early nineteenth century, there was a cleavage between liberal forces campaigning for a secular state free of influence from the church and conservative forces seeking to preserve the dominant role of the (Catholic) church in society. From the 1860s onward, several liberal parties were formed in Germany. Some of these strongly urged national unification while others demanded democratisation (Winkler 1995, pp. 63–68). This organisational split between a national liberal and a left-liberal camp continued during the Weimar Republic and was only overcome in 1948 with the foundation of the FDP, the most important liberal party until today. In contrast, political Catholicism was represented by the Centre Party (Zentrumspartei) since 1870, joined by the Bavarian People’s Party (Bayerische Volkspartei) during the Weimar Republic. After the Second World War, these Catholic parties were succeeded by two Christian democratic parties with an interdenominational Christian orientation, the CDU and CSU. From the mid-nineteenth century onwards, politics in Germany was furthermore determined by the cleavage between capitalist entrepreneurship and the labour movement. The workers’ demands for political equality and social justice were mainly represented by the SPD, a party that still exists today. After the Russian Revolution of 1917, a new party

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family appeared within the workers’ camp that advocated for the establishment of a communist regime like in the Soviet Union. In Germany, this position was first promoted by the Communist Party of Germany (KPD), which was very popular during the Weimar era but was banned in the Federal Republic of Germany in 1956. In 1968, the German Communist Party (DKP) was founded. It received financial support from the GDR and gained a certain significance in West German universities for a while but remained relatively small and was unable to succeed in more than a few local councils (Roik 2006). After reunification, the PDS, a party that had taken on the organisational inheritance of the GDR state party and stood in the communist tradition, entered the Bundestag. The Left party, as the successor to the PDS, also has its historic roots in this party family, which is mostly described as post-communist or leftist today (Grotz 2015; Spier 2012). In the recent past, two further cleavages have emerged that have also given rise to new party families (Caramani 2020, p. 236). Since the 1970s, the conflict between “materialist” and “post-materialist” values has gained significance (Inglehart 1977; Inglehart and Welzel 2005). The latter position is centred around programmatic goals like environment and climate protection, disarmament, equality and tolerance and is mainly represented by Green parties. The Federal Republic of Germany was one of the first countries in which the Greens actually entered parliament (MüllerRommel 2015). Finally, economic and cultural globalisation has also led to a new cleavage. In this respect, cosmopolitan citizens who welcome an “open” society without barriers to migration, travel and free movement of goods stand in opposition to others who see themselves as disadvantaged by “de-borderisation” and favour a “closed” society without migration. This latter position is emphasised by right-wing populist parties, which have experienced an upswing in many Western European democracies since the mid-1980s. In the Bundestag, this party family has been represented by the AfD since 2017. The most important political parties in Germany can be located along these cleavages according to their historic origins and ideological orientations. Besides this, there is a multitude of specific interests, which are sometimes represented by “single issue parties”. Examples are the Alliance for Basic Income (Bündnis Grundeinkommen), which advocates for a universal basic income, or the Animal Protection Party (Tierschutzpartei), which emerged from the animal rights movement. Like other small parties, they only play a marginal role in the German party system

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(Decker and Neu 2018). Conversely, not all parties represented in the Bundestag are strictly aligned with the ideological profile of their party family. The CDU and CSU, but also the SPD, have intentionally broadened their programme in order to address a wide electorate. This is why they are called “people’s parties” or “catch-all parties” (Kirchheimer 1965; Wiesendahl 2015). More generally, various historical legacies and contextual influences have affected the political identities and positions of the Bundestag parties, as shown in the following brief portraits (for more details, see Decker 2018b, pp. 149–270). The Christian Democratic Union of Germany (CDU) and the Christian Social Union (CSU) were founded in 1945 as interdenominational Christian parties with the explicit aspiration of being catch-all parties (Zolleis and Schmid 2013, p. 417; Mintzel 1975, pp. 83–89). The two parties agreed on a territorial division of labour early on: the CSU is limited to Bavaria while the CDU is active in all other German states. The profile of the CDU and CSU combines liberal, conservative and Christian-social elements (Schönbohm 1979, p. 43). Their policies are based on a Christian view of humanity and fundamental pragmatic principles such as “moderation and centre” but also on strategies to gain and retain power, which is why they are often called an “association for the election of chancellors” (Zolleis and Schmid 2015, pp. 27–32). Indeed, the CDU not only delivered the first chancellor, Konrad Adenauer, but also the chancellor of German reunification, Helmut Kohl. Overall, since 1949, the party has occupied the position of federal chief executive for the longest periods of time (Chapter 10.2). Until the 1970s, the CDU still had the character of a “party of dignitaries” with a weak focus on its rank-and-file members; later, it developed into a “modern catch-all party” with a clear orientation towards middle-sized businesses (Schönbohm 1985). In contrast to the SPD, the CDU never saw itself as a “programmatic party” whose policies were derived from its core manifesto (Kroll 2020, p. 374–378). Nevertheless, it has continued to revise and adjust its ideological principles several times (Ahlen Program, 1947; Düsseldorf Guiding Principles, 1949; Ludwigshafen Program, 1978; Hamburg Program, 1994; Hanover Program, 2007). Under the leadership of Konrad Adenauer, the integration of the Federal Republic of Germany into the West, along with the social market economy, became the trademark of the Christian democrats (Chapter 1.2). Even today, the commitment of both parties to the European Union and the safeguarding of Germany as a location for business in a globalised world shape their

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public image. Under Chancellor Angela Merkel, the sociocultural positions of CDU/CSU moved away from a conservative image of women and families (Lau 2009). Following the refugee crisis in 2015, tensions between the CDU and CSU escalated. The CSU even threatened to leave the joint parliamentary group it had formed with the CDU in the Bundestag. Eventually, both parties managed to resolve their conflict, just as they did in 1976, when the CSU announced the establishment of its own Bundestag group at the “Separation Decision of Kreuth” but then did not go through with it. Even before the end of Chancellor Merkel’s last term (2021), it was evident that the CDU/CSU was losing popularity, which made the issue of the programmatic and personal profile of the Christian democrats an increasingly controversial subject (for more details, see Lammert 2020; Walter et al. 2014). The Social Democratic Party of Germany (SPD) has the longest history of all parties in the Federal Republic of Germany. In 1875, the General German Workers’ Association (Allgemeiner Deutscher Arbeiterverein, ADAV) and the Social Democratic Workers’ Party of Germany (Sozialdemokratische Arbeiterpartei, SDAP) merged to form the Socialist Workers’ Party of Germany (Sozialistische Arbeiterpartei, SAP). The ADAV was founded in 1863 by Ferdinand Lassalle, while the SDAP had existed since 1869, led by August Bebel and Wilhelm Liebknecht. In 1890, the SAP changed its name to the SPD and then became the most important political organisation of workers in Germany. Because of its Marxist ideology, the SPD was subjected to severe repression during the German Empire but nevertheless continued to gain more members and votes. After the foundation of the Weimar Republic, it became one of the mainstays of parliamentary democracy. It was the only party in the Reichstag to vote against the National Socialist Enabling Act on 23 March 1933 and suffered particularly severe persecution by the NS dictatorship afterwards. The SPD was re-established in 1945 and became the second largest party after the CDU/CSU in the first Bundestag elections in 1949. Initially, it kept its profile as a reform-oriented working-class party (Wiesendahl 2011, pp. 50–51; Walter 2018). In view of the success of the social market economy and integration into the West, the SPD undertook an ideological de-radicalisation, which led to the Godesberg Programme of 1959. There, it committed to a market-based order and articulated its aspiration to become a catch-all party (Klotzbach 1982). From that point onwards, the SPD established itself as the main alternative to the CDU/CSU and became the leading government party from 1969 to

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1982. In that era, the party’s image was shaped by the agenda of “more democracy” and the new policy of détente and Ostpolitik (the politics of engaging with the Eastern Bloc) under Chancellor Willy Brandt (1969– 1974) but also by the consolidation policies under difficult economic and societal conditions under Chancellor Helmut Schmidt (1974–1982). The government era of Chancellor Gerhard Schröder (1998–2005) was shaped by a restructuring of the German labour market and social security system. The reform known as “Agenda 2010” was quite effective in the medium-term but led to a massive loss of trust with many traditional SPD supporters and threw the party into one of the worst crises in its history (Hassel and Schiller 2010). Since then, there have been various intra-party efforts to change its social policy profile (for further details see Grunden et al. 2017; Walter 2018). After the 2021 Bundestag election, the social democrats took over the chancellorship with Olaf Scholz. The Free Democratic Party (FDP), founded in 1948, stands in the tradition of political liberalism. Because it had a pivotal role in the party system after 1949, it frequently entered government coalitions with either the CDU/CSU or the SPD. Therefore, the FDP was the party that spent the longest time in government in the old Federal Republic of West Germany, in spite of its relatively small size. Its programme was initially based on the principles of the free market economy; the party positioned itself just as decisively against socialism as against clericalism from the Christian churches. After forming a government coalition with the SPD in 1969, the FDP’s agenda moved in the direction of social liberalism for a few years and was less focused on free markets than on sociopolitical reforms. Social liberalism was embedded in the basic programme of the party (“Theses of Freiburg”). But when the social-liberal coalition collapsed in 1982, the FDP also took its leave from social liberalism. Today, the party still emphasises individual responsibility. Since the 2000s, attempts to move the party more to the right and to adopt Eurosceptic positions have led to internal controversies. A membership vote to reject the rescuing of the euro, which was supported by the FDP in government, only failed by a thin margin (Treibel 2014, pp. 181–186). At the 2013 Bundestag elections, the FDP did not surpass the 5% threshold for the first time, which was partly due to its image as “the party of tax reduction”. In 2017, it managed to re-enter the Bundestag with a new leadership and a more nuanced agenda (for further details see Dittberner 2010; Treibel 2014). After the 2021 elections, it joined the government coalition with the SPD and the Greens.

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The party Alliance 90/The Greens has its origin in the new social movements of the 1970s and early 1980s, which pursued a post-materialist agenda such as the protection of the environment, peace and gender equality (Fuchs 1984). The “Alliance 90” (Bündnis 90) in its official name goes back to the umbrella movement for civil rights in the late GDR, which stood in the first and only free election for the East German parliament and eventually merged with the Greens (Hoffmann 1998). In West Germany, the Green Party was officially founded in January 1980. In their early years, the Greens not only had the public image as a protest party but also saw themselves as an “anti-party party”. Today, they are an established force in the German party system (Switek 2017). During the gradual development from a heterogeneous movement to a professional party, the intra-party power balance has shifted from the faction of Fundis (from the word “fundamentalists”) towards the Realos faction (from the word “realists”). While the Fundis were principally critical of participating in government and regarded it as a betrayal of the party’s foundational history, the Realos aimed at an evolutionary implementation of their goals and therefore opted for a pragmatic cooperation with other parties. After the first SPD-Green government was formed at the state level in Hesse in 1985, the party increasingly moved to the centre of the political spectrum. In 1998, it formed a government coalition with the SPD at the federal level for the first time. In 2011, the first Green prime minister was sworn into office in Baden-Württemberg. By now, the Greens have opened themselves towards different coalition constellations. Therefore, they often hold a pivotal position in the formation of state governments (Chapter 13.3). The attempt to build a federal government of CDU, the Greens and the FDP failed narrowly in 2017; after the 2021 elections, the Greens easily allied with SPD and FDP to form the first federal government of three ideologically different parties. The programmatic trademarks of the Greens are the championing of an active civil society, the deepening of democracy and an ecological transformation of society. During their terms in government, the party has repeatedly made decisions that were in open conflict with its fundamental values. One example was the approval of the NATO mission during the war in Kosovo in 1999, where the Realos eventually won out after bitter intra-party fights (Switek 2015; Raschke 2001). After the Paris Climate Agreement (2015), a growing majority of German society became aware that climate change was the central political issue of the time. An independent movement, “Fridays for Future”, also emerged in this context and

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provided the Greens with an enormous tail-wind that extended far beyond the groups they had addressed in the past. However, after entering the federal government in 2021, the Greens face the challenge of managing a severe energy and economic crisis that emerged after the Russian invasion of Ukraine in February 2022 and meet the expectations of their clientele for an advanced climate protection policy at the same time. The Left was founded in 2007 in opposition to the social reforms of the SPD-Green government (Agenda 2010). Most of its members came from the post-socialist PDS, which had emerged from the former GDR state party and had its strongholds in East Germany. It was joined by the WASG, founded in 2005 by trade union members and former SPD members as well as affiliates of diverse left-wing splinter groups from West Germany. Hence, the Left party brought together various leftist currents and thus filled a representation gap in the German party system (Nachtwey and Spier 2007). On the one hand, it considers itself a postcommunist party, as expressed in its Erfurt Manifesto of 2011. Coming to terms with its past as a successor to the SED was arduous and made intra-party cohesion quite difficult (Malycha and Winters 2009). On the other hand, the Left draws upon social democratic, green and other emancipatory traditions. It demands a comprehensive expansion of the welfare state—to be financed by enhanced tax redistribution. The party is sceptical about further European integration and Germany’s NATO membership and fundamentally rejects the social reforms made under the chancellorship of Gerhard Schröder (SPD). Against this background, the participation of the Left party in a federal government was not considered seriously, although a “left-wing” coalition of the SPD, the Greens and the Left would have commanded a majority in the Bundestag during the early 2000s. By contrast, the PDS/the Left has participated in several governments at the state level since the late 1990s (Chapter 13.3). In Thuringia, the party has even occupied the office of the prime minister since 2014 (for further details, see Oppelland and Träger 2014). The Alternative for Germany (Alternative für Deutschland, AfD) was founded in 2013 in opposition to the CDU/CSU-FDP government’s policy of rescuing the euro. It is usually categorised as a right-wing populist party (Berbuir et al. 2015; Lewandowsky 2015). During its early phase, it was primarily regarded as a national-conservative, neoliberal and Eurosceptic force. During the refugee crisis of 2015, the rejection of immigration and the “swamping” of German culture by foreigners

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became its core issue, while its criticism of the “old party establishment” and “mainstream media” became more strident. The AfD has also attracted attention with its revisionist statements about German history, its preference for a traditional family model, its doubts of man-made climate change and its rejection of the transformation towards a green economy and society. With this programmatic profile and professionalised social media communication, the party managed to access all German state parliaments within five years (Chapter 13.2). In 2017 and 2021, it also entered the Bundestag. During its short period of existence, the AfD has experienced serious internal conflicts about its programmatic direction, and the party leadership has maintained an ambiguous relationship with right-wing extremists in its ranks. In the meantime, the radical party wing seems to have prevailed over the conservative wing. This is underlined by the fact that several state branches of the AfD are monitored by the relevant agencies for state protection and counterterrorism (for more details, see Schroeder and Weßels 2019). When categorising the programmatic positions of political parties, scholars often distinguish between “left” and “right” (Bobbio 1994; Decker 2018a, pp. 23–24). Historically, this distinction goes back to the seat allocation in the French Chamber of Deputies of 1814. The conservatives, who were in favour of re-establishing the monarchy, sat on the right and the progressives, who advocated for democratic changes in politics and society, sat on the left. The major difference between left-wing parties and right-wing parties in modern democracies comes from their understanding of political equality (Bobbio 1994, pp. 76–78). Left-wing parties emphasise the fundamental equality of all people and strive towards an egalitarian society where all citizens enjoy equal opportunities, regardless of their individual abilities and their social background. In contrast, rightwing parties emphasise the “natural” inequality between individuals and groups—caused by historical, cultural, social, or familial circumstances— and seek to preserve these differences within the existing political and societal order. Building on these contrasting concepts of equality, both party camps have fundamentally different policy preferences. As these differences concern both socioeconomic issues and sociocultural values, left-wing parties and right-wing parties can be located in a two-dimensional political space (Kitschelt 1988; Marks et al. 2006; Fig. 6.1). In the socioeconomic dimension, left-wing parties are ideal–typical advocates for a statecontrolled economy and social redistribution, while right-wing parties

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reject state interference in the free market. In the sociocultural dimension, left-wing parties follow libertarian and cosmopolitan values to achieve an equality of individual lifestyles and diverse cultures, independently of citizenship or other group-related traits. In contrast, right-wing parties defend traditional hierarchies, authorities and patterns of order in the state and in society by, for example, supporting the conservative family model, preserving the privileged status of the Christian churches and rejecting an extension of citizenship rights. Figure 6.1 shows the positions of the Bundestag parties within this political space. On the socioeconomic dimension (state vs. market), the Left party and FDP are most distant from each other, and on the sociocultural dimension (liberal/multicultural/cosmopolitan vs. conservative/ authoritarian/national), the Greens and the AfD are polar opposites. The SPD, CDU and CSU take moderate positions in both dimensions, to the left and the right of the centre respectively. Overall, the main axis of party competition runs between a left-wing camp and a right-wing camp. Within these camps, the programmatic distances are smaller, which should, in liberal/multicultural/cosmopolitan left The Greens

The Left SPD FDP

Socioeconomic cleavage

market Sociocultural cleavage

state

CDU CSU

AfD

right

conservative/authoritarian/national

Fig. 6.1 The German party system in the two-dimensional political space (Source Authors’ compilation following Decker [2018a])

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principle, facilitate cooperation between the respective parties. At the same time, the party competition within both camps for the support of the respective (right-wing or left-wing) voters is particularly fierce. This poses a strategic challenge, particularly for the CDU/CSU and the SPD. Because of their self-image as catch-all parties, they tend to take more inclusive policy positions that are therefore less pronounced. This means that they cannot mobilise their electorate through their programmatic profile alone. Additionally, the parties’ issue competence and the image of their chancellor candidates play a significant role (Chapter 5.2). The two-dimensional political space captures the programmatic structure of party competition. In contrast, the structure of the party system is relevant for answering the question of the extent to which the parties in parliament are able to form government majorities that have the capacity to fulfil their electoral pledges and thereby ensure the responsiveness of representative democracy. To capture the party-system structure, the literature draws on several characteristics (Sartori 1976; Niedermayer 2013b). First, there are the numerical characteristics of party systems. These include the mere number of parties ( format ) and their relative size ( fragmentation). To form stable government majorities, it obviously matters whether a party system “is concentrated in a few big parties or fragmented into many small parties” (Niedermayer 2013b, pp. 86). Party-system fragmentation is usually measured by the effective number of parties.2 Moreover, the size difference between the two largest parties plays an important role (asymmetry). If the party with the most seats in parliament is significantly ahead of the second largest one, it tends to dominate government formation. If one-party dominance endures for longer time, it hampers the alternation of governments from different parties, which is the idea that majoritarian democracy is based on (Niedermayer 2013b, p. 87). Besides the numeric characteristics, two ideological party-system characteristics also matter for the formation and duration of coalition 2 The effective number of parties (Laakso and Taagepera 1979) is calculated by dividing 1 by the sum of squared seat shares of parliamentary parties. Squaring the numbers gives more weighting to larger parties than to smaller ones. This means that if the seats are divided between the parties in exactly equal shares, the effective number of parties corresponds to the actual number (format). If a few big parties have almost all the seats and small parties only have very few, the effective party number becomes smaller, which indicates a higher degree of party-system concentration.

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governments. On the one hand, polarisation captures the ideologicalprogrammatic distances between the parties in the political space (Niedermayer 2013b, p. 89). The more the socioeconomic and sociocultural positions of parties diverge, the more difficult their potential cooperation in government will become. On the other hand, segmentation reflects the parties’ willingness to cooperate (Niedermayer 2013b, p. 97). In non-segmented systems, all parties are generally capable of entering into a coalition with each other, while in strongly segmented systems most parties reject the formation of joint governments. In many democracies, extremist parties are excluded from government formation. The same may apply to genuinely new parties, whose parliamentary behaviour is not as predictable as that of established parties—this makes them less attractive coalition partners (Grotz and Weber 2016, pp. 451–455). Using these structural traits, we will now provide a historical overview of the German party system since 1949 by dividing its development into four phases (see also von Alemann et al. 2018, pp. 51–111; Niedermayer 2013a, pp. 744–756). (1) Fragmented and polarised party system in the foundation period (1945–1953). After the Second World War, a democratic party system emerged in the Western Occupied Zones that was “in continuity of the relatively highly fragmented, segmented and polarised Weimar system but also showed clear traits of a new beginning” (Niedermayer 2013a, p. 744). The most important new features included the foundation of the FDP and the formation of the CDU and CSU as Christian democratic parties with interdenominational aspirations. In contrast, the SPD and KPD remained separate parties, just as in the Weimar era. In the Soviet Occupation Zone, political parties were approved even earlier than in the Western zones. There, the SPD and KPD were forcibly merged into the SED, while the other parties were absorbed into a noncompetitive “bloc party system” under the hegemony of the SED (Niedermayer 2013a, p. 744). At the first Bundestag election in 1949, almost three quarters of the seats went to the CDU/CSU (34.6%), SPD (32.6%), and FDP (12.9%; Schindler 1987, p. 186). In addition, seven smaller parties managed to get into parliament. Overall, ten of the 13 parties standing for the elections were eventually represented in the Bundestag. This large number of parties—the highest in the

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history of the Federal Republic of Germany—resulted partly from the fact that the 5% electoral threshold was not yet applied at the national level (Chapter 5.1). The effective number of parties was much lower (4.0), because the small parties only received very few seats each. For instance, the Bavaria Party (BP) and the German Party (DP) were the fourth largest groups but only had 4% of seats respectively. Since the seat shares of CDU/CSU and SPD differed by only 2%, the asymmetry of the party system was not very pronounced. On the other hand, polarisation was relatively strong, because the left-wing extremist KPD entered the Bundestag and the policy positions of the other parties also diverged significantly. The main contested issues included the shaping of the economic order and the Federal Republic of Germany’s international integration. (2) Consolidated two-and-a-half party system with alternating coalitions (1953–1983). This phase was characterised by a significant decrease in the party-system format, with the CDU/CSU, SPD and FDP remaining the only parties in parliament (Niedermayer 2013a, pp. 745–747). Since the overwhelming share of the seats was won by the CDU/CSU and the SPD, the effective number of parties stabilised at around 2.5 between the late 1950s and the early 1980s (see Table 5.1). Therefore, this phase is frequently characterised as the period of a “two-and-a-half party system” (von Alemann et al. 2018, p. 52). There were many reasons for this party-system concentration. In 1953, the 5% threshold was now also applied at the federal level. Apart from the CDU/CSU, SPD and FDP, the only party that was able to surpass this hurdle was the All-German Bloc/League of Expellees and Disenfranchised (Gesamtdeutscher Block/Bund der Heimatvertriebenen und Entrechteten, GB/BHE). As the war receded further into the past, the GB/BHE became less significant. The DP could only enter the Bundestag in 1953 and 1957 with a few “direct mandates” elected in single-member constituencies. Before the Bundestag elections in 1961, the DP members of parliament joined the CDU. After all, the effects of the “economic miracle” were generally associated with the CDU and CSU (Chapter 1.2). These developments increased the electoral attractiveness of the Christian democrats, which led to a “structural asymmetry” in their favour (Niedermayer 2013a, p. 745). From 1957 to 1961, the CDU und CSU even had an absolute

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majority—the only time a party has achieved this in the Bundestag until today—but this did not result in a single-party government (Chapter 10.2). Even during its time in opposition between 1969 and 1982, the CDU/CSU remained the strongest party in parliament; it only lost this position to the SPD from 1972 to 1976. Despite the low fragmentation, single-party majorities remained the exception. Both the CDU/CSU and the SPD, therefore, had to rely on the FDP to form a government coalition. The FDP positioned itself in the middle of both larger parties and had the power to “tip the scales” (von Alemann et al. 2018, p. 78). The segmentation of the party system was completely dismantled when the SPD widened its ideological profile with the Godesberg Programme (1959) and became accessible to broader groups of citizens, while the FDP changed its profile from a liberalconservative to a social-liberal party with the Freiburg Theses (1972). Thus, the three Bundestag parties became “all able to form a coalition with each other” (Niedermayer 2013a, p. 747). Indeed, all theoretically possible government alliances did happen during this phase: between the CDU/CSU and the FDP (1961– 1965), between the CDU/CSU and the SPD (1965–1969) and between the SPD and the FDP (1969–1982). Nevertheless, significant policy differences remained between the two catch-all parties, although they did not call into question the basic consensus around West Germany’s embedding in the rest of the Western world and its commitment to the social market economy (Weßels 1991). Some studies date the end of this phase as early as 1976, when the SPD reoriented its economic, energy and defence policies and thus approached the position of the CDU/CSU (Niedermayer 2013a, pp. 746–747; von Alemann et al. 2018, p. 52). This development was strongly contested within the SPD, which gradually opened a space for a new party to their left. Nevertheless, the two-and-a-half party system only ended when the FDP opted for a lasting alliance with the CDU/CSU (since 1982) and the Greens entered the Bundestag for the first time in 1983. (3) Bipolarization and organisational differentiation within the leftwing camp (1983–2005). In this phase, the German party system became bipolar, with the SPD and the Greens on one side and the CDU/CSU and FDP on the other. The Greens’ entry into parliament increased the party-system format from three to four. Initially,

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this did not broaden the options for coalition formation, since the Greens were not willing to enter the federal government and were not accepted by the other parties as a coalition partner either (Niedermayer 2013a, p. 749). The growing electoral strength of the Greens particularly affected the SPD. On the one hand, this cemented the structural asymmetry in favour of the CDU/CSU, which endured until the end of Helmut Kohl’s chancellorship in 1998. On the other hand, the SPD lacked a strategic coalition partner, since the FDP stood firmly on the side of the Christian democrats. During the 1980s, the traditional milieus of both catch-all parties began to erode—the (Catholic) churchgoers as strong supporters of the CDU/CSU and the trade unionists, which were mainly allied with the SPD. The spreading of post-materialist values in German society structurally benefited the Greens (Inglehart 1977; Walter 2011). Although the CDU/CSU and the SPD sought to revisit their programmes and launched internal reforms, they could not prevent the Greens from becoming permanently established in the party system. Therefore, the SPD sounded out options for a coalition with the Greens, who took a “pragmatic turn” after they failed to surpass the 5% threshold in the 1990 Bundestag elections (Niedermayer 2013a, p. 753).3 When the SPD became the strongest Bundestag party at the 1998 elections, it eventually formed a government coalition with the Greens. The SPD-Green majority had become possible despite the fact that another left-wing party, the PDS, had been represented in the Bundestag since 1990. As the successor to the SED, the PDS positioned itself “as the representative of the interests of East Germans in a unified country dominated by West Germany” (Niedermayer 2013a, p. 750). Furthermore, it was widely regarded as an antisystem party with a Eurosceptic and NATO-critical position. Thus, forming a government with the PDS was out of the question for all other parties. Despite the increased party-system format, the effective number of parties remained consistently below 3.0 until 2005, 3 At the first Bundestag elections after reunification in 1990, the 5% threshold was applied separately for East and West Germany (Chapter 5.1). Since the West-Greens stood separately from Alliance 90 in the East, only the latter received more than 5% of the votes and entered the Bundestag (Bundeswahlleiter 2018, p. 26).

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since the CDU/CSU and SPD still held the bulk of parliamentary seats (Niedermayer 2013a, p. 750). (4) Dynamic multi-party system with a tendency towards grand coalitions (since 2005). During the last two decades, the German party system has changed in many ways. The number of parliamentary parties increased to six when the AfD entered the Bundestag in 2017. At the same time, party-system fragmentation grew significantly, a process only interrupted in 2013 when the FDP and AfD narrowly failed to surpass the electoral threshold. In 2017, the effective number of Bundestag parties rose to 4.6, and it reached an all-time high with 4.8 in 2021 (Chapter 5.1, Pappi and Bräuninger 2018, p. 208). The main reason for this increased fragmentation was the electoral decline of the two largest parties. Between 1998 and 2017, the SPD’s vote share in Bundestag elections halved, from around 41% to 20.5%. Although it grew to 25.7% again in 2021, it remained far below the level of support the party received in the first decade of the new century. The CDU and CSU stabilised their vote share at around 33% from 2005 to 2017, which meant a pronounced asymmetry in their favour and allowed them to maintain the chancellorship under Angela Merkel. As Merkel decided not to run again in the 2021 elections, the CDU/CSU experienced a historic defeat with 24.1% of the votes, lagging even behind the modest electoral result of the SPD. The German party system also experienced a dynamic development in ideological terms. The continuous change of the CDU’s sociocultural profile during Angela Merkel’s chancellorship brought the party closer to the positions of the SPD and the Greens (Niedermayer 2013a, p. 755). Moreover, the FDP, the Greens and the Left party competed more openly with each other while the AfD increased its distance to all other Bundestag parties because of its right-wing populist, partially extremist positions. Since neither the AfD nor the Left party is considered trustworthy coalition partners at the federal level, majority governments within the rightwing camp or left-wing camp have become the exception rather than the rule, as the “deviant case” of the CDU/CSU-FDP coalition in 2009 shows. Instead, grand coalitions between the CDU/ CSU and SPD became the order of the day, although, in 2017, the two “catch-all” parties jointly held only 56.3% of the Bundestag seats and therefore no longer had a two-thirds majority. Therefore,

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different coalition options beyond grand coalitions have become the subject of intensive discussions. Government alliances involving parties from both camps have already formed in several German states (Chapter 13.3). After the 2021 Bundestag election, the SPD, Greens and FDP set up the first three-party coalition spanning the two camps. Overall, the development of the German party system has been characterised by two main features. First, the format and fragmentation of parliamentary parties have constantly increased since the early 1980s, which saw the end of the dominance of the catch-all parties that had shaped the political competition for decades. Second, the decline of the CDU/CSU and SPD has been accompanied by an increasing polarisation and segmentation. Before 2005, the two large parties remained dominant with their political camp left and right of the centre. This bipolar structure of the party system resembled the clear political alternatives in a majoritarian democracy. After 2005, voting behaviour became even more volatile. The growing strength of the smaller parliamentary parties (FDP, Left and AfD) forced the CDU/CSU and the SPD into a series of “unwanted” joint governments. Beyond such a grand coalition, the only realistic alternative for a majority government consists of three ideologically more diverse parties, as is typical for consensus democracies. This is exactly what happened after the 2021 elections, when the SPD and the Greens formed a joint government with the FDP.

6.3 The German Parties in the European Multi-Level System Political parties are not only found at the federal level but also in the states and municipalities as well as at the EU level. In spite of some regional idiosyncrasies, the party systems in the German states are quite similar to their counterpart at the federal level (Chapter 13.3). Moreover, the nationally established parties are also present in the municipalities and hold the majority of elected offices there, although they are experiencing increasing competition from local voter associations and independent candidates (Chapter 14.3).

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The institutional context of the EU contrasts with the domestic levels of government (Chapter 3). The European Parliament (EP), the most important arena of party competition at the EU level, has only been directly elected since 1979. So far, it lacks the authority of a full democratic legislature although it has acquired more co-decision rights over time. Moreover, the members of the European Commission, the EU’s main executive institution, are nominated by the national governments. The results of the EP election only have to be “considered” in the election of the president of the Commission (Art. 17, para. 7 TEU). Therefore, the Commission is not composed according to the usual standards of party governments. At the EU level, German parties have to coordinate with their sister parties from the other 26 member states to fulfil their functions as intermediary organisations. The parties’ capability to cope with the challenges of supranational policy-making is of particular significance, since there are many decisions being made at the EU level that have far-reaching consequences for the citizens. Therefore, EU policies require democratic legitimation, which is intermediated by political parties. To assess the extent to which German parties have succeeded in performing this task, we will first explain how they have adapted to European integration in programmatic and organisational terms (“top-down Europeanisation”; von dem Berge and Poguntke 2013, p. 876). Vice versa, we will also show how German parties are represented at the EU level and how they shape policy-making there (“bottom-up Europeanisation”; von dem Berge and Poguntke 2013, p. 883). The organisational structures of the German parties have changed little due to Europeanisation. Leading members of the European Parliament (MEPs) and other EU office holders are usually included in the steering committees of their parties. For instance, Commission President Ursula von der Leyen is a member of the CDU Federal Executive Board by virtue of her office (Section 33, para. 1 CDU statutes). Nevertheless, EU politicians still have little influence in national party organisations. MEPs also prefer to remain in contact with their regional party leadership and their local electorate, which usually have more influence on how long they will remain in the EP than federal party leaders (von dem Berge and Poguntke 2013, p. 879). At the same time, the crucial role of executives in European governance has enhanced the position of national ministers in the top committees of their parties and thus strengthened an already existing trend at the national level (Carter and Poguntke 2010).

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At the programmatic level, the European Union offers the national parties a unique opportunity to expand their policy profile, since they can call for further Europeanisation of legislative powers or, conversely, demand their (re-)nationalisation in order to appeal to pro- or antiintegrationist voter groups in a differentiated way. For a long time, there was a consensus among the parties represented in the Bundestag that the political unification of Europe belonged to the “core of the German raison d’état” (Knelangen 2005, p. 25). Therefore, the pro-integrationist orientation was not debated controversially between them although there have always been Eurosceptic groups in German society (Hertner and Sloam 2012, pp. 37–38). Only the PDS (and later The Left) distanced itself from the pro-European consensus from the 1990s onwards—a characteristic that was, for a long time, a unique selling point within the German party system. This changed with the emergence of the AfD, which was able to attract large numbers of Eurosceptic voters as a firm opponent of the policy of rescuing the euro as well as the entire integration project (Lewandowsky 2016). Since then, the German party system has become more polarised with regard to the issue of European integration, thus resembling the party systems in most other EU member states (Braun et al. 2019). Regardless of this, all German parties have developed differentiated positions on EU policies in their manifestos (Pollex 2020, p. 129). Many of these EU-related positions are in line with their “classic” ideological positions (Wimmel 2019). For example, in the campaign for the 2019 European elections, the SPD, the Greens and the Left supported the introduction of a national minimum wage in all EU countries, while the CDU/CSU, FDP and AfD rejected this. Conversely, the parties of the right-wing camp supported limiting social security entitlements for citizens of other EU countries, while the left-wing parties spoke out against it. However, there are also a few European issues where German parties do not take strongly distinct positions according to their left-wing or right-wing profile, such as foreign and defence policy. Overall, there is no “EU cleavage” that cross-cuts the established dimensions of domestic party competition (Wimmel 2019, p. 192). In order to shape their European policies, the German parties have to participate actively in the political will formation and decision-making at the EU level. Unlike the federal and the state level, the EU institutions provide limited opportunities for party politics. The EU Council is a case in point. As it consists of ministers of the national governments, who

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usually belong to one or other political party, its members could theoretically coordinate along party lines across the different countries, just like in the German Bundesrat (Chapter 11.2). In reality, however, their voting behaviour is much more determined by national interests than by party positions (Keading and Selck 2005). A similar situation exists in the European Commission, whose members are nominated by the national party governments. However, their work as EU commissioners is overwhelmingly determined by the rationales of their respective departments and perhaps by national interests but hardly by their party membership (Wonka 2008). In contrast to the Council of Ministers and the European Commission, the European Parliament (EP) has been organised in transnational party groups from its very beginnings. Table 6.5 shows which parliamentary groups the 14 German parties in the EP belong to. The CDU and CSU are part of the EPP group, the SPD is part of the S&D group, the Greens are part of the Greens/EFA group, the FDP belongs to Renew Europe, the Left party to the left-wing GUE/NGL group and the AfD is part of the group Identity and Democracy, which includes various nationalist and radical right-wing parties. In addition, several candidates of small parties were elected to German EP seats in 2019 and subsequently joined various larger parliamentary groups. This effect resulted from the abolition of the 5% electoral threshold in 2014. As soon as the revised Direct Elections Act, which provides for a minimum electoral threshold, is ratified in all member states, the German seat contingent will become less fragmented (Chapter 5.3). Although the various EP groups consist of numerous national parties, they show a high degree of cohesion in their voting behaviour (Hix et al. 2007). This surprisingly strong party discipline results from the fact that MEPs stick to the guidelines set by their national party delegations, whose leadership negotiates the political line of the entire parliamentary group and eventually lays it down in binding form. Thus, the EP is “the only EU institution where the debates and votes predominantly follow the traditional left–right dimension” (Hix et al. 2005, p. 231). The German parties not only cooperate with their European sister organisations within their parliamentary groups but also within the European parties they belong to (Table 6.5). Originally, transnational party organisations were created by the national parties as a framework for mutual exchange and coordination (Weigl 2019, p. 166). The Party of European Socialists (PES) was the first to be founded, in 1974. The

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Table 6.5 German parties in the European Parliament and in European parties European Parliament Party CDU CSU Family Party SPD Greens ÖDP Pirate Party Volt Europe Independentb FDP Free Voters The Left AfD Independentc Die Parteib Centre Partyd Independente

Seats 23 6 1 16 21 1 1 1 1 5 2 5 9 1 1 1 1

European Party (year of foundation)a

Party Group EPP

EPP (1976)

S&D Greens/EFA

ECPM (2002) PES (1974) EGP (1983) –

Renew Europe GUE/NGL ID ECR –

ALDE (1976) EDP (2004) EL (2004) –

Notes a The only parties listed here are those that are recognised by the Authority for European Political Parties and European Political Foundations. This does not include the European Pirate Party, Volt Europa and Animal Politics EU, to which the respective parties registered in Germany belong. b Of the two original MEPs of Die Partei, one joined the Greens/EFA group and subsequently left Die Partei. c Formerly AfD. d Formerly Animal Protection Party. e Formerly AfD Abbreviations ALDE = Alliance of Liberals and Democrats for Europe; ECPM = European Christian Political Movement; EDP = European Democratic Party; EGP = European Green Party; ECR = European Conservatives and Reformists; EL = Party of the European Left; EPP = European People’s Party; Greens/EFA = Greens/European Free Alliance; GUE/NGL = European United Left/Nordic Green Left; ID = Identity and Democracy; S&D = Progressive Alliance of Socialists and Democrats; ÖDP = Ökologisch-Demokratische Partei (Ecological Democratic Party); PES = Party of European Socialists Source Authors’ compilation according to the Authority for European Political Parties and European Political Foundations; European Parliament; Weigl (2019, p. 166); As of 4 January 2023

European People’s Party followed in 1976, consisting of various Christian Democrat, centrist and conservative parties. In the same year, the liberal parties came together under the umbrella of the Alliance of Liberals and Democrats for Europe (ALDE). Others joined later, like the European Green Party and several umbrella organisations in which various Eurosceptic and right-wing radical parties are allied (Mittag and Steuwer 2010, pp. 60–63; Bukow and Höhne 2013, pp. 822–824).

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The European parties are also regulated by EU law (Chapter 3.1). They were first mentioned in the Treaty of Maastricht (1993). According to Article 10, paragraph 4 of the Treaty on European Union, “political parties at European level contribute to forming a European political awareness and to expressing the will of citizens of the Union”. Furthermore, Article 224 of the Treaty on the Functioning of the European Union enables the EP and the EU Council to create the legal foundations for European parties. On this basis, a regulation was passed in 2003 that primarily governed party funding (Morlok and Merten 2018, p. 241; Regulation (EC) No 2004/2003). Previously, the European parties had to rely heavily on the support of their respective EP groups in terms of funding and staffing (Mittag and Steuwer 2010, p. 85). After the European Court of Auditors and the European Court of Justice sharply criticised such “cross-funding” (Mittag and Steuwer 2010, p. 85), this practice was prohibited by the regulation. In 2017, a comprehensive statute on European political parties came into effect with Regulation (EU, Euratom) No 1141/2014, which was subsequently supplemented by further regulations. This set of rules covers three main areas. First, the conditions under which an organisation is recognised as a European political party are specified. To attain this status, it must have members from at least seven EU countries that are represented in the national assemblies or were successful in EU elections. In contrast to the German parties, members of European parties “can simultaneously be [national] parties and individual persons” (Koch 2018, p. 72). In reality, the members are usually national parties, while individual membership is limited to elected representatives (Morlok and Merten 2018, p. 249). Moreover, European parties must declare their intention to participate in European elections, have their own statutes and present a manifesto that is “aligned with the fundamental values of the EU” (Koch 2018, p. 72). This latter criterion does not rule out the recognition of parties that are firmly anti-integrationist. Second, the statute regulates how party status can be revoked (Morlok and Merten 2018, p. 252). This decision is made by the Authority for European Political Parties and European Political Foundations, created in 2017 and supported by an independent expert committee. The impetus for such a procedure must originate from the EP or the European Council. Revocation of party status also implies that anti-democratic parties can be barred from accessing public funds.

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Third, registered parties can receive “resources for the funding of their work from the overall budget of the European Union” (Koch 2018, p. 74). Unlike in Germany, there is no absolute upper limit for public funding of political parties at EU level. Between 2004 and 2019, the annual total amount of these resources multiplied by a factor of ten. Because of Brexit, the 2021 budget declined slightly to e43 million (European Parliament 2021). An amount of 10% of the resources is distributed equally among all parties that are entitled to them and that have applied for funding. The rest goes to the parties represented in the EP, in proportion to their seat share. The European parties may cover 90% of their expenditure in this way (relative upper limit). The rest of their budget is largely provided by payments from national member parties. In addition, European parties can accept donations and contributions up to a certain limit, for which they must keep accounts. To prevent misuse, the activities they are permitted to use these funds for are legally specified. In addition, every European party must submit an annual financial report, including a list of donors, and submit this for oversight to the EU authorities (Koch 2018, p. 77). Violations are penalised with financial sanctions for the parties and further measures against the persons involved (Koch 2018, pp. 77–78). Although the regulations on European parties largely resemble those on parties in Germany, they still have very limited influence on the political will formation and decision-making at EU level. The parties standing at European elections are overwhelmingly national parties who present their election manifesto individually and recruit their own candidates (Bukow and Höhne 2013, pp. 827–829). Since 2017, there has been a transnational citizens’ movement called Volt Europe, which was registered as a party in several EU countries. In 2019, it also competed at the EP elections but found little support, gaining 0.7% (Germany), 1.9% (The Netherlands) and 2.1% (Luxembourg) of the votes. Altogether, the scope for action of political parties at EU level has considerably expanded during the last decades. Nevertheless, the “European music of party competition” is still played at the national level. In this sense, the German parties have also adjusted to Europeanisation, which is particularly evident when looking at the increasing prominence of EU issues in their election manifestos. Nevertheless, the impact of Europeanisation on national party competition is not so strong that EU issues have become independent, decisive criteria for voting behaviour.

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Moreover, the German parties have not sufficiently been able to “connect policy-making at the European level with the political preferences of European citizens” (von dem Berge and Poguntke 2013, p. 895). This structural deficit of interest intermediation is probably the most crucial handicap for the further democratisation of the EU.

6.4

Conclusion: Inclusive and Effective Intermediation of Interests?

Political parties are the central link between citizens and the democratic government. As their candidates are elected to parliamentary and executive offices, parties represent the societal diversity of interests and shape public policies based on their manifestos. As membership organisations, they contribute to the political integration of diverse social groups and ensure that public offices are filled with qualified people. For a long time, the parties in the German political system fulfilled these functions fairly well. Their positive performance was mainly associated with the catch-all parties—the CDU/CSU and SPD, which managed to establish a strong relationship with their electorates and to moderate political conflicts effectively. High membership numbers and broad voter support testified to their political inclusiveness (Wiesendahl 2011, pp. 11– 43; pp. 124–132). At the same time, the low fragmentation and moderate polarisation of the party system ensured that ideologically coherent majority coalitions were formed to the right and the left of the political centre that shaped government policies largely in line with their voters’ preferences. From the 1970s, economic and societal modernisation not only led traditional party affiliations to decline but also triggered a value change. This also created new political cleavages. From the 1990s onwards, the socioeconomic consequences of reunification provoked far-reaching dissatisfaction in the East, which was not sufficiently channelled by the established parties from West Germany. In parallel, Europeanisation shifted significant parts of policy-making to the supranational level, which the national parties failed to connect effectively with the interests of the citizens. Overall, the traditional catch-all parties were less and less successful in realigning themselves with their new, socially more diverse environments. The consequence of this was a constant decline of party membership and a decrease in voter support. Emerging representation gaps were utilised by new parties, initially by the Greens, then by the

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PDS/Left party and finally by the AfD. As a result, both the fragmentation and the polarisation of the German party system increased, which made the formation of coherent majority governments more difficult. Against this background, there has been a lot of reflection on how German parties can improve their performance as intermediary organisations between the citizens and the state. Since these problems are often discussed with a focus on the CDU/CSU and SPD, there is much talk of a “crisis of the catch-all parties ” (see Wiesendahl 2011, pp. 150). In this context, there have been many discussions on how far the traditional parties could be superseded by new types of parties that would be fit for the future, such as the “electoral professional party” (Panebianco 1988; von Beyme 2002), the “modern cadre party” (Koole 1996) or the “media communication party” (Jun 2013). A functional equivalent to catch-all parties has not been successfully established, and neither have fundamental alternatives to party democracy. Expert councils, interest groups or direct democracy may supplement the intermediation of interests by political parties but never replace them as core intermediary organisations (Caramani 2017; Schroeder 2017). Therefore, a more concrete thread of the debate focuses on the options for party reform. In this respect, we may differentiate between three main approaches (von Alemann et al. 2018, pp. 260–264). One is that voters could be granted more power by becoming integrated in the intra-party processes of candidate selection. Another option is to give party members more opportunities to participate in order to align them permanently with the party. A third idea refers to the involvement of experts, which might improve the parties’ public image. German parties have tried to take measures in all three directions (Decker 2018b, pp. 279–298). Generally, voter-targeted activities by party headquarters have gained significance. Moreover, primary elections of top candidates and party leaders or intraparty referenda on coalition treaties are being employed to “upgrade” the status of party members. Furthermore, several parties are offering “guest” or “trial memberships” for those interested to know how the party works. This has been supplemented by enhanced direct communication with the party’s rank-and file members. At the same time, most parties are following the “wide-spread trend of project-based involvement” (Decker 2011, p. 122). This involves an “issue-oriented, digital networking of party members” intended to increase the efficiency of party work (Michels and Borucki 2021, p. 135). These innovative forms of

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communication and participation may contribute to political mobilisation and revive interest in the “old-fashioned” parties. At the same time, they risk reducing the influence of mid-ranked party officials and those members who have been involved in the traditional party work for a long time (Ignazi 2020). Just as political parties need society and the state, society and the state also depend on the parties. Needless to say, parties cannot be the sole architects of democracy in the twenty-first century. However, it will be impossible to keep representative democracy working without parties that provide visibility for societal interests through their programmatic electoral competition and that draw on these interests in the policy-making process.

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CHAPTER 7

Interest Groups and the System of Associations

Interests are an essential ingredient in democracy. All democratic systems seek to integrate their diverse societal interests into the process of political will formation (input) and to facilitate a broadly accepted balance between competing interests in the decision-making process (output). Interest groups and associations play a crucial role in this process. As bureaucratically structured organisations, they seek to articulate and assert the sector-specific interests of their members in the best possible way. However, the contribution of interest associations to the legitimacy and performance of a democracy has always been a matter of controversy (Armingeon 2011, pp. 151–156). On the one hand, associations can have a positive impact on interest intermediation by delivering on the liberal promise of individual self-determination and societal pluralism. On the other hand, particularly assertive associations may promote their own interests disproportionately and thus undermine the democratic ideal of political equality. Given the falling membership numbers in many important associations, the diminishing loyalty within their organisations and the rise of lobbyists outside the established system of associations, the significance of traditional interest groups and associations seems to be declining. What is their role and function in the German political

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system? Do they support the working of democracy through their integrative capacities or threaten the common good by pursuing their specific interests? Against this background, Section 7.1 will provide a systematic overview of the interest groups and associations in Germany and describe their internal organisation. Section 7.2 will look at the influence of organised interests in the political process. We will pay particular attention to the relationship between associations and the government, based on the ideal–typical differentiation between pluralism and corporatism. Section 7.3 will trace the intermediation of sector-specific interests in the European multi-level system. Finally, Section 7.4 will assess the track record of how interest groups and associations perform in the German political system.

7.1

Interest Groups and Associations in Germany

People’s actions are guided by their interests. These interests may be motivated by different purposes, such as satisfying individual needs, maximising self-interest, or pursuing idealistic aims not oriented towards self-interest or personal advantage (von Alemann 1989, p. 27). In any event, societal interests determine political action and are therefore integral elements of democratic governance. There are many different names for the actors and organisations expressing and asserting such interests: citizens’ initiatives, interest groups, advocacy groups, lobbyists, NGOs (non-governmental organisations), pressure groups, or associations. In this chapter, we mostly use “interest group” or “association”, which is largely equivalent to the German-language term Verband. Associations are permanently established interest groups with a differentiated organisational structure dedicated to pursuing shared goals (Speth and Zimmer 2009, p. 268). Responsibilities in these associations are highly diversified, which means that there are specific roles that differentiate “ordinary” members from functionaries, who may be volunteers or fulltime employees. Following Max Weber’s terminology, such association might be called a “ruling organisation” (Herrschaftsverband) defined by the triad of organisation, leadership and followers (Weber 1985, p. 26). This internal power structure, which needs to be constantly re-established and legitimated, is a fundamental condition for associations to perform their tasks successfully.

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Associations differ from other collective actors in the realm between citizens and the state. Unlike social movements, associations have an organisational structure with formal rules of membership, institutionalised options for participation and distinct services. They are different from recreational clubs, because they are concerned with advocating for specific interests in the policy-making process and usually have high professional standards in public relations. Finally, associations are also different from political parties. The latter stand in general elections to gain political office (Chapter 6), while associations seek to address parliament and government from outside to assert their interests. Because of their intermediating character, associations operate in two distinct environments. They have an “internal” relationship towards their members and an “external” relationship towards government institutions, where they compete with other actors to exert political influence. The behaviour of associations therefore follows two different logics (Streeck 1987, p. 473): the logic of membership and the logic of influence. This also implies that they fulfil distinct functions for their members and for the workings of the political system, which may be assigned to the three phases of the policy process (input–throughput–output, see Chapter 1.1; Table 7.1). On the input side, associations contribute to social integration because they enable citizens to organise and pursue their interests according to their affiliation with societal groups. For instance, the incorporation of organisations like Arbeiterwohlfahrt (AWO; Workers’ Welfare Association) and Caritas (a welfare-focused Catholic charity) into the welfare Table 7.1 Functions of associations Social integration (input)

Interest representation (throughput)

Service performance (output)

Functions for members

Participation within the association

Articulation of member interests

Systemic functions

Political socialisation (“school of democracy”)

Representation of sector-specific interests

Assertion of member interests and offering of specific services Supporting the state in legislation and policy implementation

Source Authors’ compilation

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state of the Weimar Republic gave recognition to citizens from workingclass and Catholic backgrounds, which reduced political conflict between labour and capital and between church and state (Boeßenecker 2017). Today, membership of an association also offers opportunities for intraorganisational participation, for example, in the various voluntary and paid positions that exist in all larger interest groups. Furthermore, the internal structures of associations may contribute to the political socialisation of the members, as they can immediately experience and actively engage in processes of collective decision-making. In this way, an association functions as a “school for democracy” that teaches important knowledge and skills for political action (Zimmer 1996, p. 65). Some associations, such as the youth organisations of trade unions, even provide ideological orientation and politicise their members. Finally, some of the political and administrative elites are also recruited from among association members. Employers’ associations and trade unions often fill the positions of honorary judges in social courts and the boards of directors of social insurance organisations. Representation of political interests in a narrow sense takes place in the throughput phase. To promote the concerns of their members (interest articulation), associations need to elicit their various opinions internally (interest aggregation) and filter them (selection of interests). Associations often do not have sufficient resources to successfully campaign for all their interests simultaneously. Interest articulation is thus the outcome of intra-organisational deliberations and decisions. When campaigning for its interests, an association also needs to consider whether to articulate its members’ maximal demands or to signal its willingness to compromise, which may allow it to exert greater influence in the decision-making process. At the level of the political system, associations also play a crucial role in the throughput phase since they articulate sector-specific interests and thus supplement the political parties in their representative function (Chapter 6.1). In this context, the diversity of associations, with their specific and partially conflicting interests, is an expression of democratic pluralism. However, certain associations may organise the interests of a small membership more effectively than others with wider support in society. This may compromise the democratic ideal of political equality. On the output side, the focus is on the service performance of associations (Sebaldt and Straßner 2004, p. 70). First of all, this refers to the political assertion of their members’ interests. If large parts of the membership feel that relevant policy decisions do not sufficiently reflect

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their interests, this may severely affect the legitimacy of an association and could even endanger its existence in the medium term. Furthermore, members can take advantage of specific information, communication and counselling services offered by the association. They may also get access to exclusive offers of assistance and support, such as the legal expenses coverage offered by the German Trade Union Confederation (Deutscher Gewerkschaftsbund, DGB). These special services, also called “selective goods”, are becoming increasingly important. Some associations have even set up their own departments in the hope of gaining more members and enhancing their political significance. Associations also contribute to the performance of the democratic system by supporting the state in fulfilling its tasks in many ways. For instance, independent welfare services, such as AWO, the Paritätischer Wohlfahrtsverband (an umbrella of various free welfare associations), the Catholic welfare organisation Caritas or its Protestant counterpart Diakonie, are contracted by the federal and state governments to implement social policies. Many other public tasks are also performed by associations, such as the setting and monitoring of professional regulations by the lawyers’ associations and the chambers of commerce. As long as collective bargaining between employers’ associations and trade unions works well (Chapter 7.2), neither the federal government nor the Bundestag needs to concern themselves with issues of statutory pay, which would be very controversial between and within government parties. Such modes of self-governance by associations also relieve the state of political pressure from societal groups by pre-selecting and aggregating their members’ heterogeneous opinions (Weßels 2004, p. 26). Finally, associations support parliament and government in the legislative process by providing sector-specific information and making their expertise available to elected representatives and bureaucrats. However, if strong interest groups manage to assert themselves, the cooperation between the state and associations can also lead to biassed policies. And if powerful associations threaten to push back, reform policies can be blocked. Freedom of expression, assembly and association were the fundamental preconditions for the emergence of modern interest groups. In Germany, these freedoms evolved from the second half of the nineteenth century onwards and facilitated the foundation of the first associations, which directly evolved from mediaeval trade and craft guilds or were established based on their model. Unlike these earlier professional organisations, contemporary associations are usually independent legal entities

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and operate on the principle of self-organisation (Kleinfeld 2007, p. 52). The German system of associations grew substantially during the period of the German Empire (1871–1918), when employers’ associations, trade unions and chambers of industry and commerce were established. Some of their organisational features can still be found in their contemporary successors (Ullmann 2010, pp. 35–37). Since the nineteenth century, the German world of associations has been characterised by three developments (Reutter 2018). First, the number and scope of associations have significantly grown (expansion). While interest groups in Imperial Germany primarily dealt with economic, social and cultural issues, their contemporary counterparts are also active in many other areas, e.g. leisure, environment or consumer protection. Second, most associations have focused on increasingly specific fields of interests (differentiation). For instance, an independent employers’ association for the digital economy (Bitkom) evolved from associations in the fields of electrical and mechanical engineering, and the Federal Association of German Dairy Farmers (Bundesverband deutscher Milchviehhalter, BDM) split off from the German Farmers’ Association (Deutscher Bauernverband, DBV). Third, the state assigned additional responsibilities to some associations (functional enhancement; Zimmer 2007, p. 407). The biggest watershed in the history of German associations occurred when the National Socialists seized power in January 1933. Within a few months, the Nazi regime destroyed almost all interest organisations by forcing them into controlled alignment and “making them available as a mass base for the authoritarian state” (Ullmann 1988, p. 183). After 1945, most of these associations from the times of the Weimar Republic re-established themselves within the new democracy. Initially, approval for associations was in the hands of the Allied occupation forces, which usually urged them to build up their organisation according to democratic standards (Kleinfeld 2007, p. 76). In 1949, the pluralism of societal interests was enshrined in the Basic Law: “All Germans shall have the right to form societies and other associations” (Art. 9, para. 1 GG). This freedom of association was expanded by the freedom of coalition in Article 9, paragraph 3 of the Basic Law, which grants special status to interest groups representing employers and employees. This constitutional provision not only codifies the right to the existence of trade unions and employers’ associations but also their right to regulate industrial relations independently of the state, which particularly includes collective bargaining (collective bargaining autonomy).

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Indeed, the socioeconomic development of West Germany from the 1950s until the 1980s was strongly influenced by the major employers’ and business associations, including the Confederation of German Employers’ Associations (Bundesvereinigung der deutschen Arbeitgeberverbände, BDA) and the Federation of German Industry (Bundesverband der deutschen Industrie, BDI). The same applied to the trade unions in the Deutscher Gewerkschaftsbund (DGB; Schroeder and Weßels 2017; Schmidt 2016, pp. 113–121). Moreover, the German Farmers’ Association (DBV) and the Catholic and Protestant churches played a significant role in the well-institutionalised system of associations of West Germany. In contrast, the authoritarian regime of the GDR did not allow for interest-group pluralism. Associations did exist, but they only functioned as “transmission belts” for the top-down control of society by the Socialist Unity Party of Germany (Sozialistische Einheitspartei Deutschlands; SED). With the democratic revolution in 1989/90, these mass organisations were dissolved. After reunification, most of the West German associations transferred their structures to the new states in East Germany (the new Länder). This led to an organisational alignment of the East German associational landscape with that of the West (Schroeder 2000). However, the newly established interest groups in East Germany were far less able to take root in society. Even today, they have significantly fewer members and less integration power (Schroeder and Greef 2020). The associations registered with the Bundestag can provide indications regarding the growth and increasing variety of interest groups in Germany (Fig. 7.1). Between 1974 and 2020, their number almost quadrupled, from 635 to 2,317. However, these organisations only make up a small part of the actual world of associations in Germany. The German Association for Association Management lists around 15,000 such organisations (Lietzau 2018). This covers a multitude of interest groups varying in size and territorial affiliation. For instance, the German Olympic Sports Confederation (Deutscher Olympischer Sportbund, DOSB) and the General German Automobile Club (Allgemeiner Deutscher AutomobilClub, ADAC) have more than 20 million members respectively, while many smaller associations only list a handful. The differences in organisational strength are also apparent in the fact that only just over half of the 15,000 associations (8,700) have a registered office with full-time staff. Of these, only 1,800 gave Berlin as their primary or secondary office location, which shows that most interest organisations come from the subnational levels of the federal system.

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2500 2252

2317

2110 1969

2000

1578

1614

1732

1500 1286 1033

1000 635 500

0

1974

1981

1986

1991

1996

2001

2006

2011

2015

2020

Fig. 7.1 Associations registered with the German Bundestag (1974–2020) (Source Authors’ compilation according to Deutscher Bundestag [2019, 2020])

We may categorise the multifaceted world of German associations according to six different criteria. First, German associations differ in their legal status. Most of them are Vereine according to Sects. 21– 79 of the German Civil Code or corporations under public law (Speth and Zimmer 2009, p. 268). Some associations enjoy a special constitutional status that goes beyond the general freedom of association. This applies to religious communities (freedom of religion, Art. 4 GG; right to self-determination of religious communities, Art. 140 GG) as well as to associations representing employers and employees (collective bargaining autonomy, Art. 9, para. 3 GG). Many other associations enjoy privileges based on ordinary legislation through mandatory professional memberships, a position confirmed by the Federal Constitutional Court (BVerfGE 146, 164–215). These include the Chambers of Commerce and Industry (IHK) and different professional associations (medical chambers, chambers of trade, etc.). Associations for consumer interests, environmental protection, animal welfare and the protection of disability rights also have a legally codified right to bring collective legal action within their respective policy field (Verbandsklage). Unlike ordinary plaintiffs, they do not need to be directly affected in this case, provided that general interests have been infringed upon. Thus, organisations like Environmental Action

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Germany (Deutsche Umwelthilfe, DUH) have a collective action right in certain policy areas even if they have a very small membership (DUH: ca. 450; Töller 2020). Other associations, for example, in sports or culture, are subsidised by the government or contracted by the state to deliver public services, such as welfare organisations in the area of social policy. Second, we may classify associations by their main areas of activity (Table 7.2). Around half of all German associations are active in the areas of labour and the economy (Deutsches Verbände Forum 2018). Most of them maintain close connections to parliament and government. So do organisations representing a variety of different societal interests— from environmental protection and human rights to taxpayers and local authorities (approx. 11%). Associations operating in the fields of culture and leisure (approx. 9%), education and science (approx. 10%), and health care and social affairs (approx. 20%) tend to be less involved in the policymaking process. Some of them are heavily engaged in political lobbying at the federal level, such as the statutory and private health insurance companies. However, most organisations engaged in these latter fields are primarily known for offering specific services, like the ADAC, which provides roadside assistance. Third, associations may be organised at different levels of the political system (organisational level ). Most German interest organisations Table 7.2 German associations by areas of activity Areas of Activitya

Percentage

Labour/Economy

~50%

Health care/Social affairs Education/Science

~20%

Culture/Leisure

~9%

Other

~11%

~10%

Examples Metalworkers’ Union (IG Metall), Federation of German Industries, German Farmers’ Union, Federation of German Consumer Organisations German Association for the Blind and Visually Impaired, Workers’ Welfare Association German Adult Education Association, German Political Science Association ADAC, German Cultural Council, German Olympic Sports Confederation Nature and Biodiversity Conservation Union, German Taxpayers’ Federation, Amnesty International, Association of German Cities

Sources Authors’ compilation following von Alemann (1989, p. 71), Deutsches Verbände Forum (2018) and Lietzau (2018) Note a The examples have been assigned to these areas according to their main focus of activity

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are local or regional and only accept natural persons as members (firstdegree associations ). This applies, for example, to sports clubs from the local to the state level. In contrast, the umbrella interest organisations that usually operate at the federal level are second-degree associations, since their members are not individuals but other associations active at lower levels or in specific sectors. In this sense, the Confederation of German Employers’ Associations (BDA) encompasses both its own state associations (Hamburg, Bavaria, etc.) as well as the employers’ associations in different industries (the chemical industry, metal and electrical industries, retail, etc.). By now, most German umbrella organisations are also part of transnational, European or global organisations. These are third-degree associations, such as BusinessEurope (Chapter 7.3). Fourth, associations can be differentiated according to their organisational structures. Compared to political parties (Chapter 6.1), they have to comply with less strict legal regulations regarding intra-organisational participation and the representation of the membership. Nevertheless, most interest groups in Germany resemble the internal structures of political parties. Associations are usually registered as Vereine (clubs). As such, they must have a board of directors, appointed by a general assembly of members or delegates. The latter is the main decision-making body, but it rarely meets, since the board usually conducts the daily business according to its statutes. In addition to the general assembly and the board of directors, many associations also have their own supervisory and audit committees, which means that their structure entails a formal separation of power. Nevertheless, the decision-making within associations may diverge from the democratic principles of free and equal participation of members in several respects (Mannewitz and Rudzio 2022, p. 63). For example, some employers’ associations do not grant votes in elections to their board of directors equally to all members (“one person, one vote”) but prorate them based on membership fees, economic power or proportional to industry sectors. Furthermore, the most important decisions in many associations are not taken by the board, as is officially mandated, but by smaller groups, such as steering committees. Finally, full-time managing directors leading the association’s administration sometimes wield more power than the elected board and therefore have more influence over its policies. Fifth, the degree of organisation of an association is highly relevant. It tells us how many of those whose area-specific interests are supposed to be represented are actually organised in an association (for example,

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the number of members of a trade union relative to the number of all the workers in an industry). Thus, the degree of organisation indicates both the representativeness of the interests covered by an association and its political power. Generally, “the higher the degree of organisation, the more influential an association will be, and the more likely it is to influence policy or assert its interests in competition with other associations” (Sebaldt and Straßner 2004, p. 27). Associations in Germany differ significantly in this respect. For instance, less than 0.5 percent of taxpayers are organised in the German Taxpayers’ Federation (Bund der Steuerzahler), while the German Farmers’ Association or the German County Association (Deutscher Landkreistag ) include virtually all potential members. There are also associations competing for members in the same sector, such as the Education and Science Workers’ Union (Gewerkschaft Erziehung und Wissenschaft; GEW) and the German Philological Association (Deutscher Philologenverband; DPhV), both of which are teachers’ unions. These associations necessarily have a lower degree of organisation than those with a de facto monopoly on representation, like the Chamber of Pharmacists. There are many reasons for the varying degrees of organisation. These include historical and cultural traditions, the heterogeneity of interests within an area of organisation, the political power resources of an association and how attractive its membership services are. One particularly prominent reason is the organisability of interests. This relates to the fact that not all groups of people with similar interests can organise equally well. For instance, a lack of money and shared identity may make it difficult for unemployed people to unite and advocate for their common interests. Conversely, the ability to organise is higher in groups that share a specific professional interest (e.g. taxi drivers) than it is in more generalised groups (all car drivers). In principle, the more specific the interests and the more homogenous the group connected to them, the higher the organisability of an association (Olson 1971). The opportunities to mobilise economic and political resources are not equally distributed either. Groups like children or homeless people are limited in their abilities to articulate their concerns by themselves and are therefore disadvantaged in the competition between opposing political interests (von Winter and Willems 2000, p. 14). Such “weak interests” usually need strong support from other actors in order to make their voices heard. This “social advocacy” may compensate for the limited organisability of general interests to a certain extent. Examples include government-provided financial support

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for consumer and patients’ associations and provisions to grant them special access to the policy-making process (Chapter 7.2). Beyond organisability, cost–benefit calculations also play a role in individual decisions for or against joining an association. In this context, the free-rider problem plays a crucial role (Olson 1971). When an association produces collective goods that also benefit non-members, there is no incentive to contribute to the production of this public good in terms of membership fees and volunteering. A relevant example concerns labour agreements obtained through collective bargaining by a trade union that apply to all workers regardless of their membership in the union. To counteract the logic of free riding, many associations offer members-only services, which demonstrate the immediate advantages of membership. In the case of trade unions, these are various sorts of legal services. Sixth, associations differ in terms of their sanction potential to put through their interests. Generally, interest groups that can make credible threats to withhold a “system-relevant” activity are better able to assert their interests than those without the option to impose such sanctions (Offe 1971, p. 169). In Germany, train drivers and pilots are not only highly organised in their trade unions (German Train Drivers’ Union/ Gewerkschaft der Lokführer, GdL; German Pilots’ Union/Vereinigung Cockpit ) but can also paralyse large parts of the transport infrastructure by stopping work. Hence, they can assert their interests much more effectively than students gathering for a “climate strike”. Associations with a significant sanction potential often only need to threaten a denial of service to move employers and political leaders to opt for negotiation and compromise to minimise conflict. For the sake of illustration, we apply these six criteria on the case of the Industriegewerkschaft Metall (abbreviated as IG Metall), the largest German trade union (Schmitz 2020). The legal status of IG Metall is that of a non-registered Verein with more than 2.2 million individual members (2020). Legal persons like shareholders or limited liability companies are not admitted. As a first-degree association, IG Metall is part of the Federation of German Trade Unions (DGB), a second-degree association, which in turn is a member of the European Trade Union Confederation (ETUC), a third-degree association. Together with other national trade unions from the same industry, IG Metall forms the European Trade Union Confederation (IndustriALL Europe), which is also a member of ETUC.

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IG Metall is active in a relatively heterogeneous field. It covers the areas of the metal and electronics industries, the wood and plastics sector, the textile industry, metal-based trades (the automotive, heating and sanitation sectors, etc.) and the steel industry. The companies involved vary from small firms run by master tradespersons to global corporations. The political heart of IG Metall is the automotive sector, with around 2.2 million employees who work in various areas from car production to automotive component supply. As the production structures in this sector have fundamentally changed due to agency workers, outsourcing and new value chains, conflicts around boundaries with other unions tend to flare up frequently, in particular with the United Services Union (Vereinigte Dienstleistungsgewerkschaft; ver.di) and the Mining, Chemical and Energy Industrial Union (Industriegewerkschaft Bergbau, Chemie, Energie; IG BCE). Such disputes concern who is entitled to represent and organise the workers and employees in these areas (Seeger 2017). Overall, the organisational levels of DGB trade unions are largely similar, with some small differences. IG Metall has local, district and federal organisational units. Where the union structure is closely aligned with the political-administrative system, as in the case of the Education and Science Workers’ Union (GEW), the subnational organisation is called the Landesverband (state association). By contrast, IG Metall has seven districts that were shaped by historical and industry-specific factors. Recently, these districts were territorially reorganised in view of a budgetary squeeze. Hence, the coastal district now encompasses the territories of five German states. The United Services Union (ver.di) has a similar multi-level structure and is also divided into departments (such as trade, traffic, social security) and membership groups (youth, migrants, unemployed), which gives rise to a three-dimensional matrix. At all organisational levels, IG Metall is structured in line with the principles of representative democracy. There are no meetings of members, just assemblies of delegates (Table 7.3). The top decision-making body is the Gewerkschaftstag (trade union parliament, also called congress), which has 500 elected delegates and meets every four years. Between the sessions of the trade union parliament, the Beirat (advisory board; also called committee or council) is the operational decision-making body. It consists of 113 members, 36 of whom come from the board of directors and 77 of whom are elected by the district assemblies. Trade union activities are primarily operated by the managing board of directors (seven members), the district leadership and the 155 local offices. Additionally,

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Table 7.3 Organisational structures of German trade unions Level

Representative bodies

Steering bodies

Supervisory bodies

Federal Level

Trade union parliament/ committee State/district assembly Delegates’ assembly

Executive board

Supervisory committee Audit Audit

State/district level Local level

State/district board Local board

Source Authors’ compilation

many volunteers are actively engaged at all levels; around 100,000 of them are members of workers’ councils and shop stewards. Finally, there are (volunteer) auditors supervising the finances. At the federal level, this function is performed by an audit committee of seven, elected by the trade union parliament. Furthermore, the audit committee examines whether the statutes have been observed and the decisions by the trade union parliament have been implemented. Membership numbers have been decreasing continuously in almost all German trade unions since the 1970s. The most decisive response to this development was a restructuring of the trade union landscape (Schroeder 2014, pp. 29–32). Since the 1980s, the number of DGB trade unions has declined from 17 to eight through integration and mergers. Today, over 75 percent of all individual DGB members belong to IG Metall, ver.di or IG BCE. Going against the grain, a few trade unions have been able to halt this decline or at least pause it temporarily. Along with the GEW and the Police Union (Gewerkschaft der Polizei, GdP), IG Metall is among them. More recently, it developed specific strategies to activate its members and gain new ones (Schroeder 2018b). Although IG Metall is the union with the most members in the DGB (Greef 2014, p. 692), it does not have the highest degree of organisation. When it comes to the ratio of members to workers, smaller unions like the GdP do much better. There is no precise data for the degree of organisation of IG Metall, because it is a multi-industry union rooted in different sectors to varying degrees. The most important sector for the union’s public image and the ability to assert its interest is the automotive industry, where it is highly organised. Strikes are the most visible expression of IG Metall’s sanctioning potential. Industrial action of this kind can last for months, as its strike in

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favour of a 35-hour-week in 1984 showed. The most recent long strike in the metal and electrical industries took place in 1996. Since then, IG Metall has primarily wielded influence by threatening work stoppages (“the sword on the wall”). In this context, regular warning strikes are important, which underpin the specific interests and organisational power of the employees in the automotive industry and automotive supplier firms.

7.2

The System of Associations: Integrative Capacity and Political Influence

Associations occupy a central position in the intermediation of democratic interests because they seek to articulate and assert the specific issues of their members in the policy-making process. But how exactly do individual associations exert their influence over elected representatives? How does the political system ensure that competing interests are treated equally and transparently? In order to shed some light on these questions, we will first look at the opportunities and problems around lobbying by interest groups and other organisations. Then, we will go into further detail on the relationship between the government and competing associations using the ideal–typical dichotomy between pluralism and corporatism. Finally, we will use the examples of health care and wage policies to show that the relationships between the state and the associations in Germany are shaped by sector-specific combinations of both pluralist and corporatist elements. The term lobbying, derived from the word lobby, which refers to the entrance hall of a parliament, is commonly used for activities relating to the direct exertion of political influence by interest groups (Zimmer and Speth 2015a, p. 12). In everyday language, interest representation and lobbying are often used synonymously (Nohlen 2015). However, lobbying is focused less on organising and representing specific interests and more on exerting immediate political influence. It remains a perpetual challenge for a democracy to ensure fairness for everyone involved in this process. Lobbying activities directed towards political decision-makers can pursue different goals. “Acquisition lobbying” aims at soliciting public contracts, while “legislative lobbying” attempts to influence law-making in accordance with the lobbyists’ interests (Lianos and Hetzel 2003, p. 16). In addition, there are different lobbying strategies. Direct or

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“inside” lobbying means that the lobbyists seek immediate contact with political decision-makers in order to influence their agenda by presenting relevant information and statements (Binderkrantz 2005, p. 696). In order to achieve this, associations may use the various options for participation provided for in the Rules of Procedure of the German Bundestag (GOBT) and the Joint Rules of Procedure of the Federal Ministries (GGO; Chapters 9.3 and 10.2). For example, “central and umbrella associations” are entitled to comment on draft laws in federal ministries (Sect. 47 GGO). They also continue to have formal opportunities to exert influence throughout the legislative process—for example, by speaking at expert hearings in the standing committees of the Bundestag (Rule 70 GOBT). Of course, the associations try to exert their influence long before a legislative bill is drafted, by communicating their views and framing the political agenda in their favour. Indirect or “outside” lobbying addresses the public in order to influence political decision-makers (Binderkrantz 2005, p. 696). Relevant examples include cultivating close connections to journalists but also publishing expert opinions and studies. Lobbying activists may furthermore create pressure through communications in social media, petitions, campaigns, protests or civil disobedience. Today, there is an increasing number of interest organisations (Attac, DUH among others), which operate without a large membership and broad organisational structures. This new, campaign-based form of outside lobbying was first practised by Greenpeace, an “international NGO with national affiliations”, founded in 1971 in Canada and active in Germany since 1980 (Zimmer and Speth 2015b, p. 41). While classic associations prefer continuous publicity and seek to mobilise members in protests, a “movement enterprise” (Nullmeier 1989, p. 11) like Greenpeace is primarily campaign-based. It can mobilise a significant number of people due to its around 600,000 “sponsoring memberships” (Greenpeace 2020), but these are not a formal part of an association with a democratically structured organisation. Thus, Greenpeace does not depend on decisions by members’ meetings for its actions nor is it limited by considerations of specific membership interests. Its local full-time staff makes the decisions about what happens. Hence, Greenpeace can create focused, strong media images at the Brandenburg Gate, in front of the headquarters of political parties in Berlin, or with a video projection onto the Federal Chancellery at short notice and with a handful of activists. Although critics have argued that it lacks any intra-organisational democracy, Greenpeace has

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countered that its slim organisation enables fast and effective lobbying for a major general interest—the protection of the ecosystem. This conflict around “bottom-up” democracy prompted a split between the German Greenpeace and the organisation Robin Wood as early as 1983. Robin Wood’s work is just as campaign-oriented as Greenpeace’s, but it is organised in regional groups of members who are entitled to a vote (Amm 2007). Meanwhile, even traditional associations are drawing on the campaigning repertoire of movement enterprises like Greenpeace to some extent. For example, the Association of Statutory Health Insurance Physicians (Kassenärztliche Vereinigung ) has “rented” students and unemployed people as protesters (Spiegel.de 2006). Trade unions also use campaigning methods from time to time. Some of them seek to activate employees—using an approach pioneered by US trade unions—who represent their interests directly to their employers without going through the works council or trade union officials. This approach has been used to address issues like compliance with collective labour agreements or various problems within companies (Schroeder 2018b). In a sense, this new activism by the traditional associations is also a response to their membership crisis described above. Asserting sector-specific interests through lobbying is not only legitimate in a liberal democracy but also a visible expression of a pluralist society. Nevertheless, it continues to provoke strong criticism. As early as 1955, Theodor Eschenburg questioned the “rule of the Verbände”, pointing to the danger of state capture by specific interests (Eschenburg 1955). Likewise, lobbying is often seen in a critical light today. However, this contemporary criticism is less about the overall power of interest associations but more about the excessive influence of very specific—usually economic—interests. One widespread claim in this context is that “politics are conducted behind closed doors”, and elected governments mainly represent the interests of business (Crouch 2008, p. 10). At the same time, we can observe an erosion of the associations’ integrative capacities. For example, many employers’ associations have found it difficult to commit their member companies to a common course because such collective actions may diverge from the interests of the individual companies (Wehrmann 2007, p. 41). Moreover, business associations have had little success in attracting new members. Instead, many firms use individualised channels of communication to assert their interests. Big corporations have their own branches in Berlin or Brussels. Companies

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that cannot afford this often draw on the services of public relations agencies, consultants or lawyers. Hence, the increasing significance of these lobbyists is not a consequence of the strength of traditional associations but of their weakness. In the field of corporate interests, Schroeder and Weßels (2017, p. 3) have observed a transition from the “era of associations to the era of members”, with the individual companies acting with considerably more independence. In view of the diversity and complexity of lobbyists and lobbying activities outside the traditional associations, the discussion has intensified about ways to increase transparency in interest intermediation. This particularly applies to the legal definition of lobbying as well as to mandatory disclosure of lobbying activities (Rasch 2020, p. 351). In this context, the introduction of a federal lobbying register has long been debated. Such a register already exists in several German states, but only RhinelandPalatinate and Brandenburg apply it equally to the state parliament and the state government. Like Saxony-Anhalt, these two states demand mandatory registration for lobbyists if they want to participate in parliamentary hearings. However, there are no strong sanctions for violating this registration requirement. Since 1972, the German Bundestag has kept a public register of interest associations and their representatives (Deutscher Bundestag, n.d.). This official registration facilitates access to parliament. However, critics contend that this list of associations fails to cover all relevant lobbying actors, provides insufficient information about the registered associations, and does not commit them to specific rules of behaviour. Therefore, there are occasional demands for statutory registration for all lobbyists—including law firms—who target parliament and government (LobbyControl 2020). Additional demands refer to a consistent code of conduct, an independent authority to maintain and oversee the register and strong sanctions for violations. Furthermore, disclosures should not only pertain to clients but also their goals, measures, finances and contacts with public office holders. However, even supporters of more transparency have to concede that “there is no evidence that members of parliaments, governments or administrations work in a manner more likely to advance the common good in states with a lobbying register” (Abstimmung21 2020, p. 28). By contrast, critics of a lobbying register point to Article 47 of the Basic Law, which grants members of parliament (MPs) a right of refusal to give evidence about facts disclosed to them in their capacity as people’s representatives. Therefore, a lobbying register

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may make the interrelations between governments and associations more transparent but not the behaviour of MPs. In 2022, a new Lobbying Register Act went into effect. It makes provisions for the registration of most lobbyists who come into contact with members of the Bundestag, parliamentary groups and members of the federal government, as well as the heads and deputy heads of department in the federal ministries. Violations of these mandatory obligations of transparency can carry a fine of up to e50,000. On the other hand, there is no provision for an “executive footprint” showing “which persons and organisations contributed to the wording of specific legislation” (Wildschutz 2021). Therefore, in its coalition agreement of December 2021, the new federal government of SPD, Greens and FDP announced a refinement of the Lobbying Register Act to record bureaucrat-lobbyist contacts in the federal ministries. As part of attempts to create more transparency in political lobbying, the “revolving door effect” has also come under scrutiny. This effect describes a situation where members of parliament and government take up a leadership position in a company or association immediately after leaving office and use their political insider knowledge to lobby for specific interests. Since 2015, federal ministers and parliamentary state secretaries have therefore been subject to a minimum waiting period. If they take up private employment within 18 months of leaving office, they must declare it. If a committee created for this purpose finds that there is a conflict of interest, they can be barred from taking up the new position for up to 18 months. During this waiting period, the politician concerned is entitled to a temporary allowance (Sects. 6–6d BMinG; Sects. 7 and 11 ParlStG). Regardless of their eroding power, associations still play an important role in German policy-making. This is because parliament and the ministries need reliable contacts who can bring together a wide range of interests in the various policy areas and articulate overarching positions. The most frequently used term to capture the entirety of these organised interests is the system of associations. It describes the structures of interaction both between the different associations and between the associations and the state. The research on interest groups employs many theoretical approaches to explain the abilities of associations to recruit members and assert their political interests. While theories of interestgroup pluralism emphasise competition between conflicting interests, the neo-corporatist approach concentrates on conflict resolution between

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opposing associations through institutional arrangements. New political economy approaches explain why homogenous groups with specific interests are better able to assert their interests than heterogeneous groups. Power resources theory analyses the relationship between labour and capital and their respective influence on government policy based on their relevant capacity to reward or to punish other actors (Korpi 1978; see also Sebaldt and Straßner 2004, pp. 57–58). To describe the German system of associations, we will mainly use the seminal distinction between pluralism and corporatism. Schmitter and Lehmbruch (1979) have distinguished two ideal types of association systems (Table 7.4). In a pluralist system, numerous small associations compete with each other for members and political influence. These associations do not belong to a centralised umbrella organisation. Their relationship with the state is also shaped by competition and diversity. They do not receive any privileges from the government, nor do they occupy an institutionalised position in the policy-making process. By contrast, a corporatist system only includes a few associations that have a formal or actual monopoly of representation in their area of interest and therefore a large membership. In addition, associations in corporatist systems have typically joined or merged into a centralised umbrella association in order to represent their collective interests as effectively as possible in politics, in the economy and in society. In corporatism, relationships between the state and the associations are highly institutionalised. Legal regulations favour the existing associations in many ways. At the same time, the government involves them in the policy-making process with the aim of achieving a coordinated alignment of opposing interests. These two systems of associations can also be assigned to Lijphart’s types of democracy (Lijphart 2012, pp. 158–173; Chapter 1.1). In a majoritarian democracy, the typical form of interest intermediation is a competitive and uncoordinated plurality of associations that does not significantly limit the power of the government. In a consensus democracy, there is a corporatist system whereby sector-specific interests are organised in large associations and policy-making is coordinated between the government and the major associations and oriented towards compromise. Although Germany is not among the countries with the strongest corporatist traditions (these are Sweden, Austria and Norway), the institutionalised involvement of associations in key policy areas is a defining feature of the German political system (Weßels 2002). Nevertheless, it is

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Table 7.4 Pluralist and corporatist systems of associations

Structural features of associations

Relationship between state and associations

Type of democracy

Pluralist system

Corporatist system

Competing associations

Limited number of associations Centralised umbrella organisations Governmental access privileges Institutionalised exchange process Consensus democracy

No centralised umbrella organisations No governmental access privileges No institutionalised exchange process Majoritarian democracy

Source Authors’ compilation following Schmitter (1979), Czada (1994, p. 45) and Lijphart (2012, pp. 158–160)

difficult to categorise the German system of associations, since their relationships with the state strongly differ between policy areas. Furthermore, pluralist and corporatist elements are closely intertwined within the same policy areas (Reutter 2012, p. 154). We will illustrate this for the cases of healthcare and wage policies. In the field of healthcare policy, a multitude of interest groups has access to the Bundestag (Chapter 9.2). In the Bundestag committee for healthcare, most experts and position papers come from the main associations in this field (Dhungel and Linhart 2014). In addition, every eighth association officially registered at the Bundestag (Fig. 7.1) is active in healthcare, i.e. around 300 organisations. Hence, the basic configuration of associations in this field is pluralist. At the same time, German healthcare policy is shaped in corporatist negotiation arenas, where powerful advocacy groups with opposing interests are represented. This includes, in particular, the associations of doctors, hospitals, insurance companies, patients and the pharmaceutical industry (Simon 2017; Rosenbrock and Gerlinger 2012, pp. 450–472). With the exception of the pharmacists and the pharmaceutical industry, these interest groups are also represented in the most important corporatist committee of the German health system, the Federal Joint Committee (Gemeinsamer Bundesausschuss, GBA) established by law in 2004 (Sect. 91 SGB V). It makes legally binding decisions in all fields of healthcare policy that are immediately relevant for around 73 million people with statutory public health insurance. This

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includes guidelines for medical treatments, the introduction of new medications, medical aids and remedies and quality control in hospitals. The G-BA has 13 voting members from three different groups of interests. All its decisions are formally supervised by the Federal Ministry of Health (Bundesgesundheitsministerium; BMG). At the same time, the BMG is informally involved in the G-BA as a non-voting member and therefore well informed about the committee’s ongoing work. The first group in the G-BA covers the “service providers”, i.e. the physicians and hospitals represented by the National Association of Statutory Health Insurance Physicians (Kassenärztliche Bundesvereinigung; KBV), the National Association of Statutory Health Insurance Dentists (Kassenzahnärztliche Bundesvereinigung; KZBV) and the German Hospital Federation (Deutsche Krankenhausgesellschaft; DKG). Together, they send five members to the G-BA. As a public corporation, the KBV is the organisational body and central umbrella organisation for the 17 state associations providing outpatient treatment for members of the statutory health insurance system through their more than 170,000 contracted physicians. The KBV and the KZBV are legally mandated to represent the interests of physicians in the statutory health insurance system, along with engaging in demand planning and executing statutory duties. In contrast, the DKG is a private-law association representing hospitals operated by public welfare organisations and commercial providers. This association includes 12 federal umbrella associations and 15 state hospital organisations. The second group, also represented in the G-BA with five members, consists of the health insurance funds, which are “service funders” in the healthcare system. At the end of 2022, there were 97 statutory public health insurance funds (Gesetzliche Krankenversicherungen, GKV) down from the approximately 21,492 health insurance funds in 1913 (Rosenbrock and Gerlinger 2012, p. 43) and currently represented by the GKV central association. The insurance companies agree collective contracts with the service provider associations, which regulate health care provision and payments. The third group is the “service users”, i.e. the patients. The three members representing them, one of whom chairs the G-BA, have no voting rights but only have consultation rights and may bring motions. These members are jointly selected by the German Council of People with Disabilities (Deutscher Behindertenrat ), the Federal Syndicate of

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Patient Interest Groups (Bundesarbeitsgemeinschaft der PatientInnenstellen), the German Syndicate of Self-Help Groups (Bundesarbeitsgemeinschaft Selbsthilfe) and the Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband). Because of their low degree of organisation, their limited resources and the lack of voting rights, the patient interest groups have the weakest position in the GB-A. The G-BA also excludes some of the stakeholders because it provides no representation for the pharmaceutical industry, the chambers of pharmacists and physicians and the growing number of expert and professional associations in the healthcare system. At the same time, these groups exert significant influence over the definition of diseases and the accreditation of therapeutic methods by asserting their interests through personal contacts, information and lobbying throughout the legislative process. Overall, the intermediation of interests in German healthcare policy is characterised by the fact that almost all the relevant associations are highly organised and involved in the political decision-making process. At the same time, the capacity of the various groups to assert their interest differs considerably. For instance, physicians are said to have a high capacity to assert themselves and nurses a low one (Schroeder 2018a). In view of the diversity of actors and the complexity of the field, the governability and reformability of German healthcare policy are severely limited. For this reason, the federal government introduced some market-oriented mechanisms in order to control expenditures, such as competition between insurance companies and the privatisation of hospitals. Given the enormous significance of healthcare provision for the legitimacy of the political system, the central issue for the healthcare system going forward is how to make progress in medical technologies accessible to everyone while managing the continuously increasing costs. While associations in the healthcare field participate directly in political decision-making, there are also policy areas regulated by the associations themselves without the involvement of parliament and government. One of them is wage policy, which aims to achieve binding collective agreements for wages and working conditions in the different industries. The responsibilities lie with employers’ associations and trade unions, also called “social partners”, who negotiate labour contracts with each other, independent of the state (autonomy of collective bargaining). The legal foundations can be found in Article 9, paragraph 3 of the Basic Law as well as in the Collective Agreement Act, adopted as early as 1949.

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According to these provisions, conflicts over the implementation of collective agreements should be resolved between the social partners in the first place. If there is no progress at this level, independent arbitrators can be called in. Under specific circumstances, either side may also bring a case to the labour courts. The ideal–typical process of collective bargaining negotiations in the metal and electrical industries happens as follows (Fig. 7.2). It starts with the revocation of the current labour agreement by the trade unions or the employers’ associations (1). This usually happens towards the end of the term of a labour agreement. The trade union then forms a regional bargaining committee to conduct negotiations with the employers and informs its members about the upcoming bargaining round (2). The bargaining committee then adopts the union’s demands, such as wage increases, improved annual holidays or better retirement provisions and communicates these to the employer side (2). Normally, collective bargaining negotiations will then begin (3). In the simplest scenario, the outcome is a labour agreement accepted by both sides (9) and then adopted by the committees of the trade union and employers’ association at higher levels. The trade unions can support the negotiation process by putting pressure on the employers through warning strikes. If one side declares that the negotiations have failed (4), there are two options. The first one is for the trade union—after holding a strike ballot where the result has met the required quorum (5)—to call a strike and set the date (6). To preserve the balance of power, the employers have the right to impose lockouts, which, however, happens very rarely due to high legal hurdles. A lockout means that the labour agreement is temporarily inactive and the workers receive no wages. In this case, the trade unions provide strike pay, which puts a burden on strike funds. Moreover, an arbitration process may be called for by either side in order to pave the way for an agreement if negotiations get stuck (7). Both arbitration and strikes are intended to prompt the effective continuation of negotiations (8). While a strike needs a quorum of 75 percent of the members of the relevant union, the acceptance of a negotiation result only needs approval by 25 percent. In Germany, collective bargaining negotiations are usually concluded without major strikes, which is why the country has had one of the lowest rates of days lost to strikes and lockouts worldwide for decades (Greef 2014, p. 747). Even though occasional strikes by sanitation workers, public service workers or transport service workers receive

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(1) Formation of a collective bargaining commission / Termination of collective agreement

(2) Information and consultation of employees Collective bargaining commission decides on demands. Goal = conclusion of a collective agreement Demands are communicated to the employer resp. employer association (3) Negotiations (first round) (3) Negotiations (further rounds) (3) Negotiations (last round)

(4) Negotiations fail (5) Collective bargaining commission requests strike ballot (6) Strike

(7) Arbitration (8) New negotiations

(9) Conclusion of a collective bargaining agreement (10) Second ballot if necessary

Fig. 7.2 Ideal–typical process of collective bargaining negotiations (Source Authors’ compilation. Example based on the metal and electrical industries. The numbering in this diagram does not refer to the process of collective bargaining negotiations but to the explanations in the text)

a lot of media attention, they are relatively rare, which shows that the corporatist system of collective bargaining works very well. In general, the collective bargaining autonomy held by the social partners is of mutual advantage for the government and for the trade unions and the employers’ associations. For the government, this delegation of tasks means a double easing of burdens. On the one hand, the government does not need to use public resources to conclude labour agreements. On the other hand, it can hardly be held politically responsible for the negative consequences of collective bargaining agreements, such as strikes or unsatisfactory wages. The advantages of collective bargaining autonomy for the social partners are not just limited to the considerable influence it offers them in policy-making; it also promotes their attractiveness in the eyes of their members. Finally, industry-wide standard wages enshrined in a labour agreement can also ease the burden on individual companies, since they reduce costs and conflicts within the company. This overall positive picture of corporatist collective bargaining has deteriorated in the more recent past. There has been a drop in the number

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of companies that are members of employers’ associations and thus apply the relevant labour agreements. At the same time, some employers have tried to circumvent the provisions of labour agreements by failing to implement all the conditions (such as working time standards) or by implementing lower standards. On the employee side, the traditional trade unions are losing members and face competition from smaller, more assertive unions. In sectors like rail transport, where the German Train Drivers’ Union (Gewerkschaft Deutscher Lokomotivführer, GdL) and the Railway and Transport Union (Eisenbahn- und Verkehrsgewerkschaft, EVG) are competing against each other, the frequency and intensity of strikes have increased. Similar developments can be observed in sectors where employers are not prepared to negotiate with trade unions on equal terms, which was long the case in the field of private eldercare (Schroeder and Kiepe 2020). Thus, the social partners have lost some of their integrative capacity and political influence, while the autonomy of collective bargaining remains advantageous for the state and society. This is why the federal and state governments have repeatedly taken regulatory measures to compensate for the organisational weaknesses of the social partners and their functional deficits. This includes the Act on Collective Bargaining Agreement Unity (Tarifeinheitsgesetz) introduced in 2015, the legal minimum wage (2015), regulations that make compliance with collective bargaining agreements a condition of public contracts and the reform of Sect. 5 of the Collective Agreements Act (Tarifvertragsgesetz, TVG), whereby collective bargaining agreements can be declared binding for all companies operating within an industry. Moreover, the federal government may cooperate with the social partners in committees specifically established for this purpose. This has already happened twice in collective bargaining and labour policy. The first instance was the Concerted Action (Konzertierte Aktion; 1967–1977) and the second was the Alliance for Jobs (Bündnis für Arbeit; 1998–2003). In both cases, the main goal was to align wage policy with other fields of economic and social policy. The Alliance for Jobs was also supposed to find new regulations for atypical labour arrangements (temporary work, part-time work; Schroeder 2001). However, both initiatives failed because of insufficient incentives that the trade unions and employers’ associations could have offered as advantageous to their membership. Overall, associations are still essential players in German policy-making. They act in a self-organised manner and in close connection with the

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government, as the examples of health care and wage policy show. They assert sector-specific interests vis-à-vis the government even beyond institutionalised committees like the G-BA and their involvement in the legislative process. At the same time, the arenas of interest intermediation have become more differentiated, which makes them less transparent and less manageable for the government. The German system of associations cannot be categorised as corporatist or as pluralist. Rather, the structures of interest intermediation vary considerably between and within different policy areas.

7.3 Organised Interests in the European Multi-Level System In Germany, the intermediation of political interests takes place at several levels. Therefore, associations are not only active at the federal level but also at the state level and the level of the European Union (EU). In this regard, the German states (Länder) are particularly relevant in those policy areas where they have exclusive legislative powers, such as in education, culture and internal security (Chapter 13.3). The EU, as the supranational part of the multi-level system, is faced with specific challenges of ensuring an inclusive, transparent and effective intermediation of interests. The political system of the EU is not only relatively complex but has also deepened and widened dynamically since the 1950s (Chapter 3.1). Still, there is no real European public sphere where the EU’s agenda is sufficiently brought to the attention of the citizens (Chapter 8.3). All this makes the achievement of transparency at EU level, the performance of scrutiny of supranational policy-making and the political mobilisation of sector-specific interests much more difficult than on the national level. While the Treaty on European Union (TEU) requires the EU institutions to practise an “open, transparent and regular dialogue with representative associations and civil society” (Art. 11, para. 2 TEU), the exchange between the EU and the representatives of diverse societal interests varies strongly. One reason for this variation is the order of competences in the European multi-level system. Decision-making powers in some policy areas are entirely or largely located at the EU level (e.g. in the areas of competition, monetary, trade, agricultural and regional policies), while other areas, such as large parts of social policy, are still within the remit of the member states (Chapter 3.3). Organised interests in Germany and

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other EU countries have responded to this differentiated Europeanisation of policy-making in a twofold manner: by founding transnational associations and by expanding their scope of action on the EU level. Since the foundation of the European Coal and Steel Community (ECSC) in 1951, numerous national “sister associations” have joined forces on the European level to form transnational umbrella organisations (Platzer 2017, p. 594). These EU associations include, among others, the European Trade Union Confederation (ETUC), the Confederation of European Business (BusinessEurope), the European Farmers’ Association (COPA-COGECA), the European Community of Consumer Co-operatives (Euro Coop) und the European Consumer Organisation (BEUC). When these organisations were founded, German associations often played an important role because of their high degree of organisation and Germany’s economic power. Some EU associations were also established at the initiative of the EU Commission, like the European Steel Association (EUROFER; Sturm and Pehle 2012, p. 160). In this and similar cases, the Commission helped these organisations to come into life by granting them privileged access and financial resources. In so doing, it tried to strengthen interest representation in specific fields. Independently of their origin, EU associations are relatively heterogeneous. Most of their members are national second-degree associations that consist of numerous first-degree associations. In addition, some European business associations have also accepted transnational corporations as members (Sturm and Pehle 2012, p. 159). Given the wide diversity of their members’ interests, EU associations find it very difficult to agree on distinctive positions and are often unable to go beyond lowest-common-denominator compromises. They only exert effective influence on the EU agenda if they can commit their members to a common line. This works best when they are fighting against existing EU regulations but less well when they are seeking to promote their own initiatives. Hence, EU associations largely serve as information and coordination platforms for their national members (Platzer 2017, p. 608). Because EU associations have limited powers to assert their interests, national associations have also “Europeanised” their own lobbying activities. Unlike French associations, which are mostly represented by lawyers and public relations agencies, many German associations seek immediate access to EU policy-making and therefore maintain their own offices in Brussels. Examples include the major business and employers’

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associations (BDA, BDI), trade unions (DGB, IG Metall) and charitable associations but also large corporations like Daimler and Siemens. Thus, the Europeanisation of organised interests has taken place in a “co-evolutionary process” (Eichener and Voelzkow 1994): German associations work within the European associations and at the same time try to influence EU policy-making as independent actors. Against this background, it is quite difficult to gain reliable data on the number of interest organisations at the EU level. One relevant source is the EU transparency register, where all organisations that seek to influence the agenda of the EU institutions are listed (European Commission, 2020b). This register includes almost 13,000 interest organisations, divided into six categories (Table 7.5). The largest group of nearly 7,000 organisations (53.6%) represents business and professional interests, which reflects the dominant economic focus of European integration until today (Chapter 3.1). Only a little over half of these organisations are associations in the proper sense; the rest are individual companies (Eising 2020, p. 693). The second largest group is non-governmental organisations (NGOs; 27.1%) active in various policy fields in which the EU has decision-making powers, from social affairs to environmental protection and asylum to international development. Think tanks and scientific institutions (7.5%), subnational interest organisations (4.6%) and religious communities (0.4%) are listed as well. Furthermore, a separate category indicates a quite moderate share of consulting firms, lawyers and independent advisors (7.0%), although the actual number of lobbyists from the private sector is probably far higher (LobbyControl n. d.). Either way, EU lobbying has become a profession in its own right with specific staff selection procedures, career paths, knowledge, practices and identities (Lahusen 2020, p. 409). The European Parliament established a transparency register in 1995, the European Commission followed in 2006 and the Council in 2020. So far, registration is voluntary. However, anyone who wants to meet with members of the Commission has to be registered (European Commission 2020a). Data on the organisation in question includes its goals and tasks, organisational structure, areas of interest, staff and funding. Registration means that the interest organisations agree to a code of conduct that prohibits inappropriate behaviour, a commitment to declare comprehensive and up-to-date information on their structure and activities and a prohibition on selling EU documents to third parties. Although the

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Table 7.5 Registered interest organisations at EU level (2021) Interest organisations by fields of activity

Consultancy firms, lawyers’ practices, independent consultants In-house lobbyists, trade, business and professional associations/ trade unions Non-governmental organisations (NGOs) Think tanks, scientific and academic institutions Churches and religious communities Subnational interest organisations (local, regional und other institutions) Total

Number

Share (in %)

904 6,952

7.0 53.6

3,518 967 55 573

27.1 7.5 0.4 4.4

12,969

100.0

Source Information from the EU transparency register (Transparency Register 2021) as of 20 September 2021

provision of incorrect information is punishable, the register has been repeatedly criticised for its poor data quality. Overall, interest intermediation in EU policy-making has increasingly moved from associations to direct lobbying by companies, public relations agencies, lawyers and consultants. The number of EU associations has grown to the same extent since the 1970s as the number of national associations operating as independent actors on the European level (Eising 2020, pp. 692–694). At the same time, the significance of individual actors, particularly in the economic area, has “taken on a new reach and quality”, which makes the “aggregation of interests by associations” more difficult (Platzer 2017, p. 610). The political system of the EU also offers many different modes of access for the intermediation of political interests (Chapter 3.2). These modes of access primarily pertain to the central legislative and executive institutions, such as the European Commission, the European Parliament and the Council. Like national governmental institutions, they need sector-specific expertise to develop inclusive and effective legislation. Conversely, interest associations and other advocacy groups seek to maintain ongoing contact with all institutions involved in EU policymaking. The Commission has top priority here. Because of its monopoly on initiating European directives (“framework legislation”) and regulations (“laws”) but also because of its administrative authority over the various EU funding programmes, it is the “primary target of interest

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groups” (Eising 2020, p. 687). Lobbyists maintain intensive relationships with the relevant Directorates General—like the German ministries on the federal and state levels—for the drafting of legislative bills. The European Parliament (EP) has also become an important target for lobbying due to its increased legislative powers. Here, the lobbyists focus on the standing committees, their chairs and reporting secretaries. Furthermore, they have to keep contact with all the parliamentary groups, since the EP—unlike the German Bundestag—is not divided between government and opposition parties but rather decides on the basis of shifting majorities (Eising 2020, pp. 687–688; Chapter 9.2). As an institution representing the member states, the Council also plays a key role in European lawmaking. Because it consists of members of national governments, it is rarely addressed by lobbyists in its entirety. Instead, they usually seek to get access through the “national tracks”, i.e. in the German case, through the federal ministries or the Federal Chancellery (Eising 2020, p. 688). Among the other EU institutions, the European Economic and Social Committee (EESC) deserves a special mention. Established by the Treaty of Rome (1957), it provides economic interests with institutionalised representation on the European level. Like the Committee of the Regions (CoR; Chapter 13.4), the EESC supports the legislative work of the Commission, the Council and the European Parliament via its “advisory functions” (Art. 300 TFEU). In practice, it delivers around 150 annual statements about EU draft legislation. These statements are a response to queries by EU institutions or drafted on its own initiative (EESC 2018, pp. 4, 7). The EESC consists of 250 representatives proposed by the member states and nominated for a five-year term (Art. 300 TFEU). Its members come from three groups: employers, employees and “European diversity”, which includes mainly agricultural, welfare and consumer organisations (Walli 2020). Germany, as the largest EU member, sends 24 representatives to the EESC. They are proposed by national associations and nominated by the federal government but act independently within the committee. At the moment, they come from organisations like the DGB, the BDA, individual trade unions, farmers’ and consumer protection associations and also the German National Association of Senior Citizens’ Organisations (Bundesarbeitsgemeinschaft der Seniorenorganisationen; BAGSO). Because of this heterogeneous configuration, the EESC does not provide much opportunity for effective interest representation. Relevant organisations may at most use it as one of many channels in their strategy to influence the EU agenda. The EU institutions are not

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bound by EESC statements but mostly try to make use of the expert knowledge compiled there. In view of its marginal competences in EU policy-making, the EESC occasionally attempts to act as an intermediary for organised civil society, but this hardly changes the fact that it has little influence (Walli 2020). How does the intermediation of sector-specific interests work on the EU level? Various empirical studies point to a high degree of inclusivity and equality of access. For instance, public consultations conducted by the EU Commission for all planned legislation have “low access barriers”, which facilitates a “pluralist representation of interests” (Eising 2020, p. 694). Moreover, specific economic interests do not seem to have more influence on the EU agenda setting than general interests (Klüver 2012). At the same time, different lobbyists can exert their influence at specific points in the policy-making process. Notably, “NGOs [seem] more important in the EU’s agenda setting while business interest organisations are more [important] for the shaping of legislative bills” (Eising 2020, p. 695). Overall, the patterns of interest intermediation vary quite a lot across levels and policy areas (Bruycker and Beyers 2019). In some EU policy areas, national associations concentrate their activities on the national level, because that is where the relevant positions of the German decision-makers are made. In other policy areas, business associations and NGOs are polar opposites. Occasionally, broad lobbying coalitions from the business and the NGO side emerge when they both anticipate specific advantages from it. Overall, the intermediation of interests on the EU level is better than its reputation. In the policy process, there are multiple opportunities for the participation of advocacy groups and there is no structural asymmetry in favour of economic interests. Moreover, “national and European interest groups in the EU multi-level system have developed a strong division of labour” (Eising 2020, p. 695). Hence, they make a positive contribution to the democratic legitimacy of the EU, which is under particular pressure given the lack of a European public sphere and the limited competition between European political parties (Chapter 6.3). At the same time, the relationships between interest organisations and democratically elected decision-makers is even more complex at the EU level than at the national level. This is why there are many different terms to characterise the EU system of interest intermediation, such as pluralist, elitist-pluralist, quasi-pluralist, network-like and even corporatist (Platzer

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2017, p. 592). In any event, initiatives promoting the transparency of lobbying in EU affairs will remain highly significant.

7.4 Conclusion: Enhancing Democratic Governance or Endangering the Common Good? Associations strengthen and legitimise representative democracy by aggregating and articulating sector-specific interests and seeking to assert them politically. Therefore, they are central actors in the German political system. Associations offer their members specific opportunities for participation and thus foster their political integration (input ). They also contribute to the inclusiveness and effectiveness of democratic policymaking by articulating their members’ interests through the transfer of information, participation in hearings, direct contact with members of parliament and of the executive and public activities (throughput ). Finally, associations may take some burdens off the state in the fulfilment of public tasks by independent self-governance or by taking responsibility for policy implementation (output ). In Germany, the historic roots of many associations go back to the nineteenth century. Over time, these organisations have adapted to changing conditions without giving up their characteristic structures. At the same time, new interest groups have constantly emerged, often modelling their structures on existing ones. Moreover, national associations have expanded their activity to the EU level by joining transnational associations and “Europeanising” their lobbying in order to influence supranational policy-making. In this way, a multi-level system of organised interests has emerged. All this testifies to the remarkable continuity of associations as well as to their ability to adapt and innovate. Interest intermediation by associations occurs in very diverse ways. In Germany, the system of associations encompasses different combinations of pluralist and corporatist elements that vary between policy fields and over time. Although the association as a form for organising interests is still attractive, many traditional associations have come under increased pressure in recent times. Their performance in interest selection and articulation has become weaker. They have also been less able to assert their interests, while their ability to induce internal commitment has declined at the same time. The major reasons for these developments include lower membership numbers, increased heterogeneity of member interests,

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waning member loyalty and enhanced competition from other associations and lobbyists. Consequently, the structural problem of transparency in interest intermediation has also intensified, since it has become more difficult to associate the multitude of lobbyists with particular interests and almost impossible to oversee their activities. On the other hand, the significance of associations as service providers for their members and as “implementation assistants” for the state has tended to grow. The classic question of whether associations might endanger the common good has by no means become obsolete. In some policy areas, like the energy sector, advocacy groups can block reforms using their strong veto power to obstruct government activities oriented towards the common good (Löhr 2020). In this way, the democratic promise that all societal interests have equal chances of success may be undermined. But even if the political influence of some interest groups might be too strong from time to time, this does not change the fact that associations better facilitate transparency in and scrutiny of democratic decision-making compared to other forms of interest intermediation. For a long time, criticism of organised interests focused on the interconnectedness of the state and powerful associations (Verbändestaat; Wambach 1971). Today, the main concerns relate to professional lobbyists pushing “strong” specific interests. These include large corporations, public affairs agencies and law firms who often conduct their activities in the shadows of the public sphere, which may also affect the legitimacy of the democratic system (Crouch 2008). Moreover, a growing number of lobbyists launch public campaigns in order to exert pressure on the political decision-makers. Some of these organisations, like Greenpeace, act like social movements and are organised more like a company than an association that follows the will of its members. What can be done to improve the democratic intermediation of interests? First, one may try to strengthen transparency in and scrutiny of individual and group-based influences on democratic governance by legal means. Various NGOs have been founded for this purpose, such as Abgeordnetenwatch, LobbyControl and Transparency International. Among other things, they call for stricter regulations on conflicts of interests and around the “revolving doors” between politics and business. Furthermore, the state can try to strengthen associations because it needs their abilities to aggregate interests and their unique expertise for law-making and implementation. This can be achieved through privileged access to the policy process, public funding or regulatory reforms such as the Act

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on Collective Bargaining Agreement Unity, which sets clear standards for competing associations. Finally, the associations themselves can convince their target groups of the value of membership through active recruitment strategies and professional service delivery. Increasing their membership could also be important for strengthening their capacity to assert their positions vis-à-vis competing organisations. If it is true that interests are an essential ingredient in democracy, then sector-specific interests should be articulated and asserted transparently and efficiently. Associations are the most appropriate organisational form to realise this ambition, which is an essential contribution to making representative democracy work.

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Deutscher Bundestag (n.d.). Öffentliche Liste über die beim Bundestag registrierten Verbände (Lobbyliste). Retrieved December 22, 2020, from https:// www.bundestag.de/parlament/lobbyliste Deutscher Bundestag (2019). Öffentliche Liste der registrierten Verbände 1973 bis 2019: Kurzstatistik. Berlin: Parlamentsarchiv Deutscher Bundestag (2020). Bekanntmachung der öffentlichen Liste über die Registrierung von Verbänden und deren Vertretern. Bundesanzeiger(AT 25.5.2020b B1), 1–726 Deutsches Verbände Forum (2018). Die Anzahl der haupt- und nebenamtlich geführten Verbände – Entwicklung seit 1990. Retrieved December 22, 2020, from https://www.verbaende.com/hintergruende/studien-statistiken.php Dhungel, A.-K., & Linhart, E. (2014). Interessenvermittlung in den Ausschüssen des Deutschen Bundestages. Zeitschrift für Parlamentsfragen, 45(4), 743–762. https://doi.org/10.5771/0340-1758-2014-4-743 Eichener, V., & Voelzkow, H. (1994). Ko-Evolution politisch-administrativer und verbandlicher Strukturen: Am Beispiel der technischen Harmonisierung der europäischen Arbeits-, Verbraucher- und Umweltschutzes. In W. Streeck (Ed.), Staat und Verbände (pp. 256–290). Opladen: Westdeutscher Verlag Eising, R. (2020). Regulierung und Einfluss von Interessenorganisationen in der EU-Gesetzgebung. In P. Becker, & B. Lippert (Eds.), Handbuch Europäische Union (pp. 685–698). Wiesbaden: Springer VS Eschenburg, T. (1955). Herrschaft der Verbände? Stuttgart: Deutsche VerlagsAnstalt European Commission (2020a). EU-Institutionen einigen sich auf ein verpflichtendes Transparenzregister. Retrieved March 1, 2021, from https://ec.europa. eu/germany/news/2020a1215-transparenzregister_de European Commission (2020b). Wer sollte sich registrieren? Retrieved March 1, 2021, from https://ec.europa.eu/transparencyregister/public/staticPage/dis playStaticPage.do?locale=de&reference=WHOS_IS_EXPECTED_TO_REGI STER European Economic and Social Committee (EESC) (2018). Entdecken Sie, was der EWSA für Sie tun kann. Retrieved March 1, 2021, from https://www. eesc.europa.eu/sites/default/files/files/qe-02-18-193-de-n.pdf Greef, S. (2014). Gewerkschaften im Spiegel von Zahlen, Daten und Fakten. In W. Schroeder (Ed.), Handbuch Gewerkschaften in Deutschland (2nd ed., pp. 659–755). Wiesbaden: Springer VS Greenpeace (2020). Greenpeace: Fragen & Antworten. Retrieved March 1, 2021, from https://www.greenpeace.de/themen/ueber-uns/fragen-antwor ten-zu-greenpeace Kleinfeld, R. (2007). Die historische Entwicklung der Interessenverbände in Deutschland. In T. von Winter, & U. Willems (Eds.), Interessenverbände in Deutschland (pp. 51–83). Wiesbaden: VS

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CHAPTER 8

The Media and the Media System

The media generates the public sphere. Newspapers, radio and television inform the citizens, influence their opinions and connect them with politics. The mass media is therefore an indispensable basis for political communication and interest intermediation. At the same time, media organisations scrutinise politics and politicians and are thus known as the “Fourth Estate” (Bergsdorf 1980; von Alemann 2002, p. 467). To fulfil these essential functions for democracy, it is crucial to have a pluralist media landscape with a wide-ranging, independent spectrum of information and opinions (Schneider 1998). While the issues in the “old” media world of the press, radio and television revolved around the question of whether the German media system was sufficiently pluralist and whether all interests were being appropriately represented in the public sphere, digitalisation and social media have added completely new challenges. Does the media in Germany have the autonomy, resources and reach necessary to foster the democratic public space? How can a combination of classic media and new internet policies guarantee freedom of expression and a diversified range of accessible media contents? How can we prevent media communication from accelerating the polarisation of a society already increasingly fragmented into sub-publics and endangering the democratic cohesion?

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To address these issues, Section 8.1 will describe the structure of the German mass media, which rests on three columns: the print media, a dual broadcast system and the internet. Section 8.2 will illuminate the mutual relationship between media and politics, shaped by distinct logics of action and by cooperative exchanges. Section 8.3 will discuss the relationship between the German media system and European integration. In Section 8.4, we will draw our conclusions and discuss the prospects of a democratic media system in the digital age.

8.1 Mass Media in Germany: Structure and Regulations In a representative democracy, mass media fulfils important functions. Media outlets provide up-to-date information about political and societal events and offer platforms for public discussion. For citizens to make their own judgement about the world around them, it is important to have regular access to diverse media outlets. This increases the likelihood that citizens will understand facts, follow developments and articulate well-founded opinions. A pluralist media landscape thus supports the free formation of opinions and judgements along the whole range of societal interests (Sarcinelli 2011, p. 40). As intermediary organisations between citizens and the state, mass media also acts as a check for political power. Therefore, the state needs to guarantee two core features of a democratic media system. First, it needs to ensure freedom of expression by safeguarding competition and regulating the media market without influencing the content of the programming on offer. For this purpose, the state has to take measures—e.g. through antitrust regulations—that prevent a structural concentration of power in order to maintain transparency and plurality in the media sector. Second, the state should not leave media services entirely to the free market but ensure that there is high-quality reporting, with diverse content. In this respect, public service broadcasters play a central role. However, this also carries with it the danger that the media could fall too much under the influence of the established political parties and could no longer sufficiently perform its oversight function. Overall, the state faces the difficult challenge of ensuring both the competition between independent media organisations and the quality of their offering. This balancing act of media policy has become even more difficult due to the digital transformation of the public sphere.

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Based on the lessons learned from the crackdown on the media during National Socialism, the legal protection of the democratic public sphere is highly valued in Germany. The media is safeguarded by the freedoms of expression, information and press according to Article 5 of the Basic Law: “There shall be no censorship” (Art. 5, para. 1 GG). Given the ongoing digitalisation, protecting the freedom of expression has become even more complex because the internet, as a kind of “super-media” (Hachmeister et al. 2018, p. 9) operated by global corporations, impedes the regulatory access of the state. Looking back at history, the “Spiegel affair” was the prime example of an illegitimate infringement on press freedom in the federal republic. In one of its issues in 1962, the magazine Der Spiegel published an article with the title “Bedingt abwehrbereit ” (Conditionally Prepared for Defence) that questioned the arms policy under then minister of defence, Franz Josef Strauß (Grosser and Seifert 1966, pp. 56–63). As a result, the Spiegel offices were searched by order of the federal public prosecutor general, and its publisher Rudolf Augstein was arrested and accused of treason. At the same time, the author of the article, Conrad Ahlers, was arrested on the initiative of Strauß while on holiday in Spain without any legal grounds (Grosser and Seifert 1966, pp. 549–573). Consequently, the Spiegel brought a case before the Federal Constitutional Court (FCC), and there were massive protests and declarations of solidarity from other media outlets, the opposition parties and parts of the public. Although the constitutional case was formally unsuccessful, the FCC described media freedom in its ruling as a constituting feature of democracy: “A free press that is subject neither to control by the public powers nor to censorship is a characteristic element of free government” (BVerfGE 20, 162, 174). Therefore, this “Spiegel judgement” is widely considered a “milestone of press freedom” (Pöttker 2012). At the same time, there are limits on the freedoms of expression, information and the press, especially if the “protection of young persons” and “the right to personal honour” are at stake (Art. 5 para. 2 GG). The respective legal provisions, which include the right of reply, are complemented by the self-regulation of the media, which mainly concerns compliance with professional journalistic standards and the safeguarding of the freedom of reporting (Suhr 1998; Wiedemann 1992). This oversight tasks are executed by different institutions: the German Advertising Standards Council (Deutscher Werberat ), which supervises the areas of advertising and PR; the German Association for Voluntary

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Self-Regulation of Television (Freiwillige Selbstkontrolle Fernsehen), which is responsible for radio and television; and the German Association for Voluntary Self-Regulation of Multimedia Providers (Freiwillige Selbstkontrolle Multimedia Dienstanbieter), which covers the new internet-based services (Stapf 2005, p. 26). A particularly prominent organisation in media self-regulation is the German Press Council (Deutscher Presserat ), which has monitored compliance with standards in the print media since 1956 (Stapf 2005, p. 26). It is funded by two publishers’ associations—the German Newspaper Publishers and Digital Publishers Association (Bundesverband Digitalpublisher and Zeitungsverleger) and the Association of German Magazine Publishers (Verband Deutscher Zeitschriftenverleger)—and by two journalists’ associations, the German Federation of Journalists (Deutscher Journalisten-Verband) and the German Union of Journalists (Deutsche Journalistinnen- und Journalisten-Union in ver.di). Its German Press Code lays out 16 binding principles intended to ensure professional ethical behaviour and balanced reporting by journalists. Any natural or legal person may report a violation of the press code (Baum et al. 2005). When a complaint is justified, measures against the respective media organisation can be taken, such as a public reprimand (which must be published), a non-public reprimand (which does not have to be published), a notice or a warning (Desgranges and Wassink 2005, pp. 79–84). In 2019, 2,175 persons contacted the German Press Council, which responded by issuing 34 reprimands, 67 warnings and 96 notices (Deutscher Presserat 2020, pp. 6–8). The greatest number of reprimands (14) was due to a “lack of separation of advertising and editorial content” (Sect. 7 of the Press Code), followed by violations of the “protection of the personality” according to Sect. 8 of the Press Code (Deutscher Presserat 2020, p. 9). The German media landscape is highly diversified in terms of content and structure. Newspapers and magazines are the oldest form of mass media. In Germany, print media outlets are private businesses. Collectively, they form the largest newspaper market in Europe and the fifth largest in the world and distinguish themselves by their wide range and diversity (Schnücker 2011, p. 61). Among the 300 daily newspapers, local and regional papers still dominate (BDZV 2018, p. 282). In addition, there are a few nationwide daily newspapers, such as Bild, Süddeutsche Zeitung, Frankfurter Allgemeine Zeitung and Tageszeitung, 23 weekly papers like Die Zeit and six Sunday papers (BDZV 2018, p. 282).

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Collectively, the five largest publishing groups in the newspaper market— including Axel Springer, the Stuttgarter Zeitung group and the FUNKE media group—have a market share of 41.3% (Röper 2020, p. 332). For some time now, the German press landscape has been undergoing a big upheaval. On the one hand, organisational consolidation processes have been underway. This includes the expansion of the FUNKE media group, which took over the Berliner Morgenpost and Hamburger Abendblatt newspapers in 2014 along with some TV and women’s magazines that were previously owned by the Axel Springer group (Grieß 2014, p. 269). Another prominent case is the founding of the Editorial Network of Germany (RedaktionsNetzwerk Deutschland, RND), which has produced nationwide content for regional newspapers such as Hannoversche Allgemeine Zeitung and Märkische Allgemeine since 2013 (Dogruel et al. 2019, p. 337). Overall, many newspapers today get their multi-media and nationwide content and their foreign news from global news agencies like the German Press Agency (Deutsche Presse-Agentur, dpa) and Thomson Reuters. On the other hand, the print media has been facing constantly declining user numbers. The number of those who read a newspaper several times per week has steadily decreased, so that daily papers have gone from being a standard media product to an occasionally consumed one (Statistisches Bundesamt 2020). The massive decline in the numbers of daily and weekly newspapers sold, from 27.3 million in 1991 to 14.6 million in 2022 (BDZV 2022), combined with the collapse of advertising revenue, has led publishers into financial difficulties. Consequences include the closure and merger of regional newspapers, price increases, less full-time journalists and a reduced diversity of content (Seufert 2018, p. 16). Additionally, the decreasing number of households reached by print media has not been met with an equivalent increase in the usage of comparable online services. Moreover, not all territorial levels have been equally affected. While nationwide media services have remained largely stable in their scope and diversity, structural weaknesses have been much more pronounced at the local and regional level (Futh 2016, p. 212). Unlike the print media, radio and television services were originally provided by public broadcasters only. This sector emerged after the Second World War under Allied supervision, with the British BBC as a model (Lucht 2006, pp. 96–98). Today, there are nine state-level broadcasters, which are combined in the ARD group of stations, as well as the Second German Television Channel (Zweites Deutsches Fernsehen, ZDF),

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the Deutschlandradio station (DLR) and Deutsche Welle (DW). The foundation of ZDF in the early 1960s was an attempt by Chancellor Konrad Adenauer to establish a nationwide television company controlled by the federal government. This project, called “Adenauer TV”, failed due to the first ruling of the Federal Constitutional Court on broadcasting matters in February 1961 (Chapter 12.2). This ruling assigned the legislative powers on broadcasting completely to the states (Länder), which meant that the ZDF was established by an intergovernmental treaty between the states. Private radio and television companies were only allowed to commence broadcasting in 1984. Since then, the German broadcasting sector has been described as a dual system of public and private providers. To prevent specific opinions from becoming dominant due to market consolidation, Germany has a Commission on Concentration in the Media (Kommission zur Ermittlung der Konzentration im Medienbereich; KEK) which is also responsible for the licencing of nationwide private TV programming. The current radio and television services are characterised by wide diversity, from the local to the regional and national levels. There are channels operated by private broadcasters—in television, this includes channels like Sat1, Pro7, RTL and VOX, and in radio, there are stations like Antenne Bayern, Planet Radio and Domradio—which are largely owned by media corporations like Bertelsmann AG, Axel-Springer-Verlag and the ProSiebenSat1 group. There are also public service television stations, from ARD, ZDF, Phoenix, regional public service television stations (e.g. NDR, which covers northern Germany, and WDR, covering Western Germany), radio stations like Deutschlandradio, transnational television stations (like Arte and 3Sat) and special (regional) broadcasters like RBB Inforadio. Regular polling finds that around a third of all citizens still see television as the most important form of information media (Seufert 2018, p. 14). However, the public service media institutions are no longer setting the tone in the current landscape. While radio, television and internet services under the umbrella of ARD and ZDF achieve a “cross-media influence on opinion formation” of around 30 percent, the comparable value for private media providers is at around 70 percent (Seufert 2018, p. 14; die medienanstalten 2018). The legal basis for the media system rests on laws and agreements between the German states. The regulatory authority is the relevant state, except for institutions broadcasting to foreign countries, which is subject to federal legislation, like the Deutsche Welle. Until the federalism reform

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in 2006, the federal government did have the right to pass its own framework legislation for press and film but did not take this opportunity (Art. 75 GG old version; Chapter 4.1). The basis for operating television and radio services has been the Interstate Broadcasting Agreement (Rundfunkstaatsvertrag, RStV) and complemented by the Interstate Broadcasting Agreement on License Fees (Rundfunkbeitragsstaatsvertrag; RBeiStV) as well as the Interstate Agreement on Broadcasting Funding (Rundfunkfinanzierungsstaatsvertrag; RFinStV). Since the public service broadcasters are increasingly active on the internet, it has become more appropriate to call them media broadcasters. Following this logic, the Interstate Media Agreement (Medienstaatsvertrag; MStV) came into force in 2020, replacing the Interstate Broadcasting Agreement, which had been regularly updated since 1987. In order to account for the new dynamics of the media market and the digital transformation, the agreement requires online streaming services and social media platforms like Google and Facebook to follow the same rules that previously applied to classic media formats only. Hence, the Interstate Media Agreement, by now in its third iteration as of 2 June 2022, is intended to help align standards between the “old” and “new” media. Pursuant with their legal mission, the public service media broadcasters are active in the areas of “education, information, advice, entertainment and culture” (Karidi 2018, p. 18). They are called upon to “provide a comprehensive overview over international, European, national and regional events in all major areas of life” (Sect. 11, para. 1 RStV). In addition, they must consider the “principles of objectivity and impartiality in reporting, plurality of opinion and the balance of their offers” (Sect. 11, para. 2 RStV). Finally, the public service broadcasters are supposed to ensure a basic media provision, not in the sense of just delivering minimal offers but in the sense of a balanced, diverse programme accessible from everywhere in the country (BVerfGE 73, 118, 157–158). According to this mission statement, “it is neither about elitist educational television nor a pure culture programme that only fills the gap in the private broadcast market nor about programming that competes with private broadcasters for maximum reach” (Beck 2018, p. 395). Overall, there are fundamental differences between public service media and private media organisations (Table 8.1). While public broadcasters aim to “maximise societal benefit” and their services cater to general needs, private media channels are commercial enterprises and thus seek

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to maximise their profits by focusing on the demands of their target groups (Kiefer 1996, p. 10). Public service broadcasters get their funding from licence fees and only to a very small extent from advertising revenue (Kiefer 1996, pp. 10–12). The Broadcast Licensing Fee (Rundfunkbeitrag ) that every German household is mandated to pay and that therefore continues to be the subject of controversial debate, is set in a multi-step procedure. First, the public media broadcasters report their needs to the Independent Commission to Determine the Financial Requirements of Broadcasters (Unabhängige Kommission zur Ermittlung des Finanzbedarfs; KEF), founded in 1975 by a resolution of the Conference of State Prime Ministers. The KEF makes an assessment based on cohesion, necessity and preservation of resources. On the one hand, the media broadcasters need to receive sufficient resources to fulfil their programming mission, but, on the other hand, the financial burden on the licence-fee-paying public needs to be kept as low as possible. Based on the proposal by the KEF, the state governments and parliaments make the final decision about the amount of the broadcasting fee (Louis 2014, pp. 126–130). In 2020, the veto by the state of Saxony-Anhalt against the increase of the fee showed how an individual state can block the intergovernmental regulation of public broadcasting funding (Allroggen 2020). Table 8.1 Features of public service media and private media in Germany

Organisation Function Goal Target audience Steering mechanism Performance profile

Funding Safeguarding of plurality of services

Public service media

Private media

Under public law Basic media provision Maximising societal benefit Citizens Common good orientation Service-oriented: meeting demand according to programming mission Funding from licence fees; limited funding from advertising Plurality through plural internal structure

Private companies Business activity Maximising profits Customers Market competition Demand-oriented: preferences of target groups and advertising clients Funding from advertising

Source Authors’ compilation following Kiefer (1996, p. 9)

Plurality through competition (more entertainment than political topics)

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Another feature of public service broadcasters is that they have an “internal pluralist structure” that has been put in place to ensure diversified offers. More concretely, they are monitored by supervisory boards whose structure and tasks are regulated by state media laws and intergovernmental treaties. These broadcasting boards (Rundfunkräte) consist of representatives of different political parties and relevant interest groups, including trade unions, churches and other representatives of civil society. They do not just ensure compliance with the programming mission but also elect the director general of the institution (Intendant ) as well as part of the administrative board (Verwaltungsrat ), which supervises the management in terms of technical and financial issues (Fig. 8.1). Within this framework, the director general manages the station’s business and is also responsible for the actual design of the programming. In recent years, there has been a critical discussion about the organisation and financing of public service broadcasting. A corruption scandal at Radio Berlin Brandenburg, which led to the resignation of its director general in summer 2022, triggered a political debate about structural reforms and the future set-up of public service broadcasting institutions, the outcome of which cannot yet be predicted. Apart from the press, radio and television, new media outlets have established themselves as an important platform of political information and opinion formation. The year 1969 saw the first use of the internet in the shape of ARPANET, and 1991 saw the launch of the World Wide Web. The first commercially available web browser, Mosaic, has been available since 1993 (Jungherr 2017, p. 284). By now, digital media offer a seemingly inexhaustible quantity of services as well as more and more interactive usage options. These features of the online world can have a positive effect on citizens’ access to political information and on their participation and integration. From an optimist’s perspective, the internet does possess a “transformative potential for democracies” (Jungherr 2017, p. 286). Nevertheless, considerable challenges have emerged around the internet’s complexity, its hardly regulated communication spaces, its devaluation of fact-based information in favour of highly emotional expression and its targeted distribution of fake news, often alongside infringements of personal rights through “hate speech” and closed opinion platforms (“echo chambers”; Stark 2013; Sunstein 2001, 2007). In view of these dangers, a sceptical position has begun to proliferate (Jungherr 2017, p. 286). Overall, the digital media world creates contradictory consequences for democracy. Therefore, how politics

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Broadcasting Council

nominates director general

50 representatives, among others from: - State parliament - State government - Unions - Churches - Farmers‘ Association - Music organisations

advises and oversees

Legal affairs directorate

elects

elects

Director general - Conducts the corporation‘s business - Bears responsibility for the corporation and all services

Directorate of cultural services

Directorate of news services

Administrative Board 7 Members: - 5 elected members - President of the Bavarian State Parliament - President of the High Administrative Court concludes a contract of employment with

Admin. affairs directorate

oversees

Directorate of production and technical operations

Fig. 8.1 Organisational structure of a public service broadcasting institution: The case of Bavarian Broadcasting Corporation (BR) (Source Authors’ compilation based on https://www.br.de/unternehmen/inhalt/organisation/index. html [as of 7 July 2020])

and society deal with these opportunities and challenges is crucial. In the following, we will illustrate the typical structures and user profiles of digital media before discussing the relevant regulation efforts by the government. There is a lot of overlap between the internet and traditional media. Established print media outlets like Der Spiegel have their own online platforms, and public service broadcasters have their own internet presence as well. Altogether, internet platforms are a rapidly growing area. While around 26,000 top-level domains were registered worldwide in 1995, their number had increased to around 378 million by 2020 (Domain Name Stat n.d.). Users have changed their behaviour in line with this rapid development of services. In 2019, around 90 percent of the German population over the age of 14—which is almost 63 million people—at least occasionally went online (Bleisch et al. 2019, p. 374). At the same time, internet usage correlates with age. While there are almost no off-liners among the under-60s, their proportion is around

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15 percent in people aged 60 to 69 and 42% in the over-70s (Bleisch et al. 2019, p. 375). Frequency of usage makes the effects of age even more pronounced. All 14- to 19-year-olds are online every day, but only 34% of the over-70s are (Bleisch et al. 2019, p. 375). Generally, internet activities may be divided into three categories (Bleisch et al. 2019, pp. 377–378): internet media usage (including media libraries and streaming services, online papers and magazines), individual communications (including chats, emails, message services) and other forms of internet usage (including games, shopping, browsing). In 2019, 41 percent of the population consumed online media content every day. In addition, 47 percent used the internet for individual communications and 36 percent used it for other purposes (Bleisch et al. 2019, p. 378). The information services of media outlets are used in different ways by people of different ages. Over-50s predominantly source information via classic channels like the press, radio and television, while younger cohorts disproportionately use the internet (Engel and Rühle 2017, p. 397). People with a strong interest in politics specifically consume public service media. They likewise use news providers on the internet (Engel and Rühle 2017, p. 398). Altogether, we can observe that political communication spaces are unravelling into more and more diversified sub-publics (Drüeke 2013, 90–94; 116–118). Social media platforms are increasingly used as communication channels, not only by citizens but also by politicians. Platforms like Twitter and Facebook offer resource-friendly and time-efficient ways of distributing political content. Thus the “free […] internet is an important common good”, contributing significantly to the dissemination of political information and opinion formation (Esch 2018, p. 36). At the same time, social networks are used to distribute fake news, hate speech, extremist positions and anti-democratic calls to action (Ebner 2019). This raises questions about options for governmental regulations and actions. What matters most here is to create a balance between the freedom of expression and the protection of personality. Owing to the structural features of online communication and the issues associated with them, a new area of “digital policy” that spans different policy fields has emerged (Greef 2017). Social media platforms pose a particular challenge in this regard. In view of their economic and opinion-forming power, they need to be incorporated into the debate about broadcasting regulation (Jarren 2019). This also includes apps and search engines that do not produce

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their own content but that do channel content and thus structure the discursive space. Although the internet was never a “lawless space” (Beck 2018, p. 312), the federal and state governments long contested who had the power to regulate internet services. The main distinction here is between individual media usage (telemedia),1 which is the responsibility of the federal level, and media services, which is part of political information and opinion formation and is thus under state competence. In this dispute, the federal government drew on its responsibility for telecommunications (Art. 73, para. 7 GG), while the states pointed to their legislative competences concerning the press and broadcast media (Art. 70 GG). The delimitation of powers in this field was clarified for the first time in 1997 through the adoption of a new Interstate Treaty on Media Services (Staatsvertrag über Mediendienste, MDStV) and three federal laws. The latter regulate “the freedom of licensing and registration for individual, on-demand information and online communication services, the legal validity of electronic signatures as well as data protection” (Beck 2018, p. 312). The fact that regulating the media in the digital age is an ongoing task is also demonstrated by more recent developments. Since the technical convergence of media providers caused severe difficulties in judicial practice, the Telemedia Act (Telemediengesetz; TMG), which standardises the regulation of media and internet law, was adopted in 2007 (and most recently updated in 2021). It contains provisions for publishing information, liability rules for illegal content and guidelines for fighting spam. Other important provisions are part of the Youth Media Protection Treaty (Jugendmedienschutz-Staatsvertrag; JMStV), which is based on the principle of self-regulation. According to this treaty, service providers must scrutinise their content for age appropriateness and create relevant barriers (e.g. through youth protection programmes and evening broadcast watersheds). The federal government also responded to hate crimes, illegal content and fake news with its Network Enforcement Act (Netzwerkdurchsetzungsgesetz) of 2017. If the content of this kind is identified and not removed or blocked by a fixed deadline, the providers may be fined up to e50 million (Liesching 2018, p. 135). The debate about the deployment of upload filters, which are intended to prevent the uploading of material protected by copyright, was particularly dramatic. The coalition 1 “Telemedia “ is a legal term encompassing electronic information and communication services.

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agreement of the fourth Merkel government of 2018 rejected mandatory upload filters as “disproportionate”. However, the EU Directive on Copyright in the Single Digital Market adopted in March 2019 held large internet platforms like YouTube liable for copyright violations, which then suggested the deployment of upload filters. Due to this EU legislation, the Act to Adapt Copyright Law to the Requirements of the Digital Single Market (Gesetz zur Anpassung des Urheberrechts an die Erfordernisse des digitalen Binnenmarktes ) and the Act on the Copyright Liability of Online Content Sharing Service Providers (UrheberrechtsDiensteanbieter-Gesetz) came into force in 2021. These laws regulate the copyright responsibilities of upload platforms and the rights of both creators and users. So far, it has not proved possible to expand the regulatory standards for the “old” media world based on competition control and quality assurance to the “new” media world. The internet and social media platforms have not yet turned into spaces where freedom of political expression and opinion formation are protected effectively. The Interstate Media Agreement of 2020 was at least able to achieve more transparency through providing guidelines for selection algorithms on social media platforms.

8.2

Media and Politics: Opposing Functional Logics and Structural Interconnections

In a liberal democracy, for which a generally accessible public space is essential, the political sphere and the media sphere are closely interconnected. Therefore, the question arises of whether the media functions as an independent body for political scrutiny (“Fourth Estate”; see von Alemann 2002, p. 467, Bergsdorf 1980) or whether it exerts excessive influence on citizens and politicians through “distorted reporting” (Karidi 2018, pp. 20–21). The relationship between media and politics is characterised by their inherently different logics of action.2 On the one hand, politicians need the media to promote their arguments, legitimise their decisions and create 2 Our argument follows an actor-centred political science perspective, which differs from some recent approaches in media and communication sciences. For example, Chadwick (2017) argues that there is no longer “one” media logic and proposed the concept of “hybrid media logics” instead. Klinger and Svensson’s (2015) distinction between “mass media logic” and “network media logic” is also relevant in this context.

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a presence with their voters. On the other hand, the media approach the politicians for news that is useful for them (Karidi 2018, pp. 20– 21). The intense media competition and the digitalised news content and delivery formats have exacerbated these opposing logics. They are particularly evident in two lines of tension (Meyer 2002, pp. 8–13): (1) “Political processing time” vs. “media production time”. Media and politics operate under different temporal parameters. While democratic politics is a process that requires longer time periods for moderating interests, discussing policy alternatives, developing compromises, etc., the media logic demands immediacy and speed. Media technologies enable processing of information in real time. This exacerbates the competition between media providers, since news loses its value as soon as many channels report on it. (2) Objectivity vs. attention. Since democratic decisions have to be made transparent to the public, politics relies on the media. Moreover, public communication is necessary to create political legitimacy. Therefore, democratic politics needs objective, comprehensive and fair reporting. The media follows the motto of “bad news is good news” and “sex sells but politics doesn’t”, and media outlets thus tend to choose subjects that catch public attention. For the latter purpose, bold phrases and striking headlines focused on personalities are more attractive than balanced and differentiated reporting on policy-making in a complex institutional setting. Against this backdrop, the alleged shift “from party democracy towards media democracy” (Müller 1999) has become the subject of a critical discussion. Some observers contend that political communication is no longer focused on transmitting and debating objective content but has deteriorated to “theatre” (Meyer et al. 2000, pp. 45–94). Catchwords like “infotainment” (Renger 2006. p. 270) or “politainment” (Dörner 2011) point to the fact that political issues and processes are being assembled into a new reality, following an entertainment paradigm, where the focus is no longer on representatives of political parties but on individual personalities. Thus, party competition is becoming increasingly personalised and more dramatic (Römmele 2003; Schoen 2005). The political elites have also had to learn how to get more attention on the media stage. The consequences are “event politics”, “image politics” and “fake

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politics” (Meyer 2002, p. 12) that sometimes become more relevant than evidence-based and goal-oriented discussions about effective policy solutions. Even if political communication is increasingly affected by an attentionoriented media logic, it does not mean that the media dominate all public discourses and policy-making processes. A more nuanced perspective on the relationship between citizens, media and politics distinguishes four models of communicative agenda setting (see Kleinnijenhuis and Rietberg 1995; von Alemann 2002, pp. 468–483): (1) Top-down communication. This model posits a hierarchically controlled communication process dominated by political decisionmakers. They can decide on “how and what” information is publicly communicated due to their “insider knowledge” about coalition negotiations, policy processes, etc. In this context, press secretaries and media departments in the headquarters of political parties and government ministries play a central role. The Press and Information Office of the Federal Government, which is responsible for government communication, is of particular importance here (Chapter 10.1). (2) “Mediocracy”. This model postulates that the mass media has a significant influence over public discourse (Meyer 2001). The media acts as a powerful amplifier of trends and therefore influences the formation of political opinions of citizens and politicians. Particularly illustrative cases include instances of media moralising and scandalising. For example, the political career of Federal President Christian Wulff was destroyed in 2012 by a controversy initiated by the Bild tabloid, which undermined his public credibility and ultimately forced him to resign (Arlt and Storz 2017). (3) Bottom-up communication. This model implies that citizens and societal groups can articulate their interests and concerns very well via the “old” media and independently communicate them via the “new” media, which substantially influences the opinions and agendas of political decision-makers. One case in point is the “MeToo” movement from autumn 2017 onwards, which took action against sexual harassment and assault by encouraging affected women to create scandals using tweets. In so doing, the movement managed to publicise the issue in almost all forms of

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media in Germany and worldwide in a very short period of time and to move the necessary political and legal consequences into the centre of the political discourse. (4) Horizontal exchange (“biotope”). This model is based on the idea that the links between politicians and journalists are shaped by a “transactional relationship of mutual dependency” (Sarcinelli 1991, p. 477). Politicians inform certain media organisations about background conversations or give them exclusive interviews, while the media gives the politicians a platform to cultivate their image. At the same time, selection mechanisms and power structures remain in place on both sides. Politicians choose which media organisations and journalists they talk and give information to and journalists decide which politicians they interview or invite to their talk shows and which of them are deliberately left out. Altogether, there are empirical cases for all of the four constellations. They indicate that the relationship between citizens, media and politics differs between contexts and is dynamically developing. How are these constellations changing in the digital age? It is indisputable that information and communication behaviour has increasingly moved online. This has also changed the quantity and quality of political communication, with specific implications for the citizens, media and politics (Donges and Jarren 2017, p. 10). Politicians and citizens can communicate more directly via digital media, which creates a fundamental challenge for the traditional media organisations and their cooperative relationship with politics. The gatekeeper function of journalists and newsrooms, who decided in the “old” media world which people, positions and events were publicly reported on, has been seriously affected by this development. In the age of Google algorithms and social media, traditional media outlets are being supplemented or even replaced by other individual actors and communication flows (Neuberger 2009, pp. 38–40). On social media platforms, more and more people are becoming broadcasters in their own right. The video uploaded by YouTuber Rezo called “The Destruction of the CDU” in the run up to the European Parliament elections in 2019 is an impressive example (Allgaier 2020). The criticisms in the video spread so quickly via the internet and traditional media that the CDU could do little to save itself from the negative headlines.

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Social media is also vulnerable to “echo chambers” in which fake reporting, irrationality or conspiracy theories may flourish (Stark 2013; Sunstein 2001, 2007). Professional journalistic standards, such as the fundamental differentiation between personal opinion and objective reporting, are less relevant here. Instead, populist rhetoric and emotionalised positions prevail (Ebner 2019). Political online communication therefore requires “digitally mature” citizens. Moreover, the shift of public sphere into the digital space has created new selection mechanisms. Even if more and more people have online access, their internet use differs significantly depending on age and social status (the “digital divide”; Rudolph 2019). Given these fundamental changes in the media system, the political independence and the funding of the public service broadcasters are under enhanced scrutiny. In 2017, 20 percent of respondents in an opinion survey agreed with the statement “media and politics work ‘hand in hand to manipulate the opinions of the population’” (Lotter 2018, p. 3). While this is not a majority opinion, it is certainly held by a vocal minority and cannot be dismissed as irrelevant, even in a consolidated democracy. Sometimes, the reporting of established media organisations is fundamentally rejected through the narrative lens of “state broadcasters” or a “lying media that does not tell all the truth” (in German, the term is Lügen- und Lückenpresse, a formulation that dates back to the Nazis). Furthermore, the very existence of the public service broadcasting system is called into question and demands are made for the abolition of “coercion fees” (Karidi 2018, p. 17). At the same time, the competitive pressure faced by the public service media due to the manifold internet services has increased, which has led them to enhance and diversify their online programming (Karidi 2018, p. 17). Altogether, public service media organisations need to adapt to the demands of an increasingly digital public. This does not mean the abolition of ARD, ZDF and Deutschlandradio. On the contrary, the public service media will have to be provided with appropriate financial and human resources on an ongoing basis so that they can continue to make their major contribution to German democracy in the digital age.

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8.3 The German Media System and European Integration A purely national media system and national media policy are no longer sufficient to meet the demands and challenges of political communication in the EU multi-level system. Two major issues stand out in this context. First, we will discuss the extent to which there is a European public sphere that is required for making democracy work beyond national borders. Second, we will elaborate on the most important EU regulations that affect the media system and political communication in Germany. One of the fundamental issues in the debate about the EU’s democratic deficit refers to the European public sphere (Neidhardt 2006, pp. 46–49; Ruiz-Soler 2017). If this means a uniform transnational space of political communication that is recognised and used by all European citizens, it is only present in a very rudimentary form (Gerhards 2000). Despite the existence of cross-border information providers—such as the television channel of the European Parliament, Euronews and multilingual platforms, apps and news services—only a small number of citizens use European media outlets (Latzer and Saurwein 2006, p. 10; Klaus 2006, p. 97). Linguistic diversity, cultural differences and the dominance of national media institutions are obvious obstacles to the development of such a genuinely European public sphere (Mono 2009). Nevertheless, the evolution of the EU has had important implications for the national media because more widespread information and more frequent debates on European affairs have led to a “Europeanisation” of public spheres in the member states (Page 1996; Hepp et al. 2012, p. 26; Zürn 2006, p. 246). This is also visible in EU-related references in national media regulations. For instance, the public service broadcasting institutions in Germany have a mandate to “further international understanding [and] European integration” through their reporting (Sect. 11, para. 1 RStV). Besides radio and TV programmes about EU-related issues and developments, relevant information and opinions are also offered in internet portals, newsletters and in the daily and weekly print media. In addition, Arte and 3Sat are two transnational TV stations co-funded by Germany. The rapid rise of internet-based mass communication as well as the slowly progressing Europeanisation of the national public sphere have also enhanced the demand for EU legislation on media and political communication. Most basically, individual “freedom of expression and information” and “freedom and pluralism of the media” are enshrined

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in Article 11 of the EU Charter of Fundamental Rights, which has been legally binding since 2009. In addition, there are various legal provisions set by the EU on television, radio and online communications, according to which the EU plays a central role in the “liberalisation of telecommunications”, the “dualisation of the broadcasting system” and the “commercialisation of broadcasting” (Beck 2018, p. 369; Chapter 8.1). Media regulation is a typical policy area in the EU multi-level system, in which the responsibilities of the individual levels partly overlap because of the complexity and dynamics of the order of competences (Burggraf et al. 2018). The field of cultural policy, which the media belongs to, is generally under the jurisdiction of the member countries. This particularly applies to the public service broadcasters, which are explicitly subject to the authority of the EU member states according to Protocol Number 32 of the Treaty of Amsterdam. In addition, Article 167 of the Treaty on the Functioning of the European Union (TFEU) stipulates that the European Union only supports, coordinates or supplements the development of culture in its member states. However, the EU also affects national media policies through its activities related to the implementation of the Single Market. Moreover, the European Commission gained competences for cross-border television after a European Court ruling defined television as a service as early as in 1974. The green paper “Television without Frontiers” issued by the Commission in 1984 was followed by the Television Directive of 1989, which was updated several times, and replaced in 2010 by the Audiovisual Media Services Directive. This directive, most recently updated in 2018, harmonises and regulates national legislation in all media formats (on-demand services and traditional TV transmissions). It includes provisions for media organisations regarding advertising, youth protection, broadcasting quotas and the right of reply (Holtz-Bacha 2016). As a reaction to the often-lamented democratic deficit in the EU, the European Commission presented a white paper on communications policy in 2006, which mapped out definite steps towards a European public sphere (CEC 2006). Since 2010, the EU has also had its own digital agenda, drafted as one of seven flagship initiatives of its Europe 2020 Strategy. In it, the Commission commits to the goal of a “free internet” as a contribution to the European public sphere “subject to the same laws and standards that also apply in other parts of daily life” (quoted in Esch 2018, p. 38). Given the market power of global internet corporations, it has become increasingly more important for the EU to take

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direct responsibility. Transnational streaming services particularly reveal the limited effectiveness of national regulations. A prominent example of how a company is misusing its market power in the eyes of the Commission is how Google utilises its operating system Android (Esch 2018, pp. 36–37). Protection of privacy and personal data are also the subject of the General Data Protection Regulation of 2018, which replaced the previous Directive 95/46/EC for the protection of natural persons in the scope of the processing of their personal data and the free movement of such data of 1995. Among others, these provisions have expanded the duties of transparency of companies towards their customers. Overall, we can see that national legislation is insufficient to ensure the protection of citizens’ rights to free speech and access to information in a globalised network. Therefore, the significance of European regulations for the German media system has increased. This is also apparent in the decision of the EU Council of 1 March 2022. In response to Russia’s invasion of the Ukraine, the Russia Today (television) and Sputnik (radio station) media services were banned throughout Europe as part of extensive sanctions against Russia (Regulation EU 2022/350). With the Digital Services Act and the Digital Markets Act in 2022, the EU Commission has also shown its continuing ambitions to regulate the economic competition and public communication in the digital space. The normative goals of these regulations—media freedom, fairness and plurality—have met with great approval in Germany, especially in view of the anti-democratic media policies in Hungary and Poland. At the same time, they have been accompanied by criticism from the German states, which fear that their genuine competences in media policy are being further undermined by Europeanisation. In this and other cases of media regulation, the implementation of EU legislation remains within the purview of national politics and is thus an issue subject to domestic conflicts and negotiations.

8.4 Conclusion: Pluralist and Autonomous Media in the Digital Age? The Federal Republic of Germany has a highly diversified media system, which has fostered a democratic public sphere. During the last two decades, the German media system has been substantially transformed by digitalisation. Therefore, the internet is not an additional branch of

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the traditional media system but rather the cornerstone of a hybrid media system in which traditional media will also continue to play an important role. The press in Germany has been generally characterised by a pluralist and high-quality supply and high demand by the citizens. Because of substantial financial losses resulting from fewer newspaper subscriptions and a massive shift of advertising towards digital media, the number of journalists working in high-quality outlets has declined substantially. Public service and private media institutions have continued to develop their radio and television broadcast services through channels and programming for various target audiences as well as digital forms of communication. Television is still the most important source of political information and influence on opinion formation in the German population at large. Even though public service broadcasters have lost some of their reach, they are still of central significance for reputable and balanced reporting. Remarkably, they tend to gain in importance in times of crisis. A case in point is the COVID-19 pandemic, which saw an increased usage of public service broadcasting (Dörner 2020). The rise of the internet has been accompanied by a fundamental change in communication structures and routines, which accelerated the fragmentation into sub-publics. Access to the public, formerly controlled by broadcasting stations, publishers and editorial teams, has been replaced by individual or collective internet users, who have proliferated a seemingly endless amount of information and opinions. Moreover, new diversities and ambiguities have become apparent. While public service programmes are used less by young people, older citizens remain faithful to the “old” media world (Engel and Rühle 2017, p. 397). On the one hand, social media platforms have contributed to increasing segregation, disinformation, hate speech and anti-democratic mobilisation, but on the other hand, they have also expanded the options for political information, participation and democratic mobilisation. Classic media policies have proven successful for the press, radio and television. The information and communication spaces established by the internet and social media cannot be regulated in the same way—they need an additional legal framework. In this context, global corporations like Google, Amazon and Facebook, which could affect the plurality of public opinion through their market power, have posed particular challenges. The consequences for the media system are not yet foreseeable. In

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any event, continuous monitoring and more effective competition regulations are needed. At the same time, it must be ensured that internet users also comply with the civil forms of democratic communication. In this sense, the German Network Enforcement Act (2017) and the EU General Data Protection Regulation (2018) provide important steps. However, the state does not bear sole responsibility for the public sphere in the digital age. Without politically mature citizens, it will be impossible to ensure media use that is compatible with a democratic society. Public service broadcasting is a proven element of German democracy. Its diversified and independent offers—which are committed to the common good—make a core contribution to political communication and interest intermediation. At the same time, it is obvious that public media institutions cannot be satisfied with the status quo. In particular, they have to increase their efforts to reach younger target audiences and improve their accountability for their expenditures, given that these are financed by the citizens. If they do so, they might continue their successful mission to foster the democratic public sphere.

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CHAPTER 9

The German Bundestag: The Legislature

The German Bundestag is the parliament of the Federal Republic of Germany. It is the only federal institution directly elected by the citizens. As the “seat of the people’s sovereignty” (von Beyme 1997, p. 54), it represents both the idea of national unity and the diversity of a pluralist society. The Bundestag passes federal legislation (Art. 77, para. 1 GG) and thus constitutes the decision-making centre of parliamentary democracy. However, observers have diagnosed a decline in the importance of the Bundestag or even a “deparliamentisation of German politics ” (Marschall 2014, p. 128). Can the Bundestag maintain its central position in the German political system? Does it succeed in combining adequate representation of political interests with transparent and efficient decisionmaking and thereby in navigating the tension between majoritarian and consensus democracy? To answer these questions, Section 9.1 will situate the Bundestag in the institutional setting of the federal system of government. Section 9.2 will offer an overview of the internal organisation of the Bundestag as a combination of a majority-oriented debating parliament and a consensusoriented working parliament. Section 9.3 will show how the Bundestag fulfils central parliamentary functions. Section 9.4 outlines its position in the European multi-level system. Section 9.5 will provide a summary and discuss the possibilities and limits of a parliamentary reform. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 F. Grotz and W. Schroeder, The Political System of Germany, New Perspectives in German Political Studies, https://doi.org/10.1007/978-3-031-32480-2_9

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9.1 The Bundestag Within the Parliamentary System of Government The origins of European parliamentarism go back to the Middle Ages (Meier 1999; von Beyme 1970). The first parliaments were advisory bodies to the monarch, and their members came exclusively from the aristocracy. Later, non-aristocratic members were also admitted to parliament. From the fifteenth century onwards, the British parliament evolved as a powerful adversary of the crown. Over time, it not only acquired effective rights of scrutiny of the government appointed by the monarch but also gained significant decision-making powers, including the right to determine taxation. At the same time, it became a political arena where different party groupings emerged. With the gradual introduction of universal suffrage, starting in 1832 and largely completed by 1918, the British parliament gained democratic legitimacy. In this context, the general concept of “parliamentarism” developed. This refers to a system of government where “a freely elected parliament acts with sovereign power” (Hesse and Ellwein 2012, p. 360). Parliamentarism in Germany had bigger obstacles to overcome. The first democratically elected nationwide German parliament met in St Paul’s Church in Frankfurt in 1848 but was dissolved the very next year. The Imperial constitution of 1871 created another parliament, the Reichstag, elected by universal male suffrage, but it only had limited decision-making powers and little capacity to scrutinise the monarchist government. Later, the Weimar Republic (1919–1933) established a fully fledged democracy. Now, the Reichstag was the centre of political decision-making but also competed for legitimacy with the directly elected Reich president and with direct popular legislation. In the end, parliament was unable to prevail over the strong anti-democratic forces (Grimm 2018). The Enabling Act of 24 March 1933, forced through by the National Socialists, transferred all legislative authority to Adolf Hitler. The Reichstag continued to exist in the totalitarian Nazi regime but no longer had any political significance. After the foundation of the Federal Republic of Germany, these historic legacies shaped the institutional features of the Bundestag in three fundamental ways. (1) The Bundestag is the only directly elected federal institution. Its members are “representatives of the whole people” (Art. 38, para.

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2 GG). Thus, it represents the democratic sovereign. The members of the other supreme federal institutions—the federal government, the federal president, the Bundesrat and the Federal Constitutional Court—are selected in indirect elections in which the Bundestag is substantially involved (with the exception of the Bundesrat; Chapter 11.1). At the same time, the members of parliament (MPs) have a special accountability due to their direct mandate. They have to communicate with the citizens continuously and to justify their actions to them. Therefore, sittings of the Bundestag are public as a matter of principle (Art. 42, para. 1 GG). (2) The role of the Bundestag as the representative body of the people corresponds to its high degree of autonomy. The Basic Law endows the MPs with the greatest possible freedom and security in order to perform their activities. They are “not bound by orders or instructions and responsible only to their conscience” (Art. 38, para. 1 GG). They may “not be subjected to court proceedings or disciplinary action”—except in the case of “defamatory insults” (Art. 46, para. 1 GG). The criminal prosecution of MPs is only possible with the explicit approval of the Bundestag, unless they are “apprehended while committing the offence or in the course of the following day” (Art. 46, para. 2 GG). Moreover, MPs may refuse to give evidence (Art. 47 GG). Any candidate who stands for election to the Bundestag has the right to the paid leave “necessary for his election campaign” and no one may be “given notice of dismissal or discharged from employment” because they accept or exercise the office of a member of the Bundestag (Art. 48, para. 1 GG). In addition, all MPs are “entitled to remuneration adequate to ensure their independence” (Art. 48, para. 2–3 GG; Chapter 9.2). The Bundestag as a whole is not subject to oversight or scrutiny by any state institution either. The most visible expression of this autonomy is the German Parliament Police, which are under the control of the president of the Bundestag and protect its premises against external attacks (Art. 40, para. 2 GG; Igel and Feldkamp 2013). Finally, the Bundestag can shape its internal organisation according to its own decisions. It “adopt[s] rules of procedure” (Art. 40, para. 1 GG) and determines “when its sessions shall be adjourned and resumed” (Art. 39, para. 3 GG). (3) The democratic election of the Bundestag justifies its position as the decision-making centre of the political system. Since all matters of

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fundamental significance in a representative democracy are decided by parliament, whose ultimate legitimacy comes from the citizens, the Bundestag is the “legislator” (von Beyme 1997). It enables the executive—government and administration—to act. Together with the Bundesrat, it has the right to amend the Basic Law by a two-thirds majority (Chapter 2.2). Likewise, the Bundestag passes ordinary federal laws with the participation of the Bundesrat (Art. 77, para. 1 GG). Matters to be decided at federal level include taxation and fiscal matters as well as the federal budget (Art. 110–115 GG). This is in line with the conventional wisdom that budgetary powers are the “parliament’s noblest prerogative” (Isensee 2005, p. 971). In the area of foreign and security policy, the Bundestag has important powers as well. According to the Parliamentary Participation Act (Parlamentsbeteiligungsgesetz) of 2005, the Bundestag must approve all armed deployments of the German military. In this respect, it has a significantly stronger position than the parliaments of the other large NATO countries (United States, UK, France; Brose 2013, p. 11). Therefore, the German military has rightly been called a “parliamentary army”. These structural features of the Bundestag give rise to four main functions that it has to fulfil within representative democracy (Ismayr 2012, p. 35): (1) Election of public office holders in the executive and judiciary; (2) Legislation (including budgetary and fiscal matters); (3) Oversight of government and administration (including impact assessment of legislation); (4) Representation of the diversity of societal interests and public communication in the process of political will formation and decision-making. The Bundestag is not the only institution carrying out these functions nor does it fulfil them as a uniform actor. To understand this in more detail, we need to take a closer look at the relationship between parliament (the legislative branch) and government (the executive branch). In this respect, political scientists make a seminal distinction between parliamentary and presidential systems of government. Historically, this refers

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to the difference between the British system, where the government is formed from within parliament, and the US system where the popularly elected president faces Congress. The key difference between these two types of systems is the “dismissability of the government by parliament ” (Steffani 1979, p. 45). In a parliamentary system, the government can be ousted from power at any time by a vote of no confidence if the majority of the MPs support it. In a presidential system, the president, who unites the functions of head of government and head of state, is elected for a fixed term in office and cannot be removed prematurely for political reasons. These provisions have distinct implications for arrangements to ensure the separation of powers. In presidentialism, the executive and legislature are institutionally separated, i.e. the government is scrutinised by parliament. In parliamentarism, the powers are institutionally interlocked: government and parliamentary majority form an “integrated political action unit” (Steffani 1979, p. 59). Government scrutiny is actually performed by the parliamentary opposition, which presents its alternative programme and personnel to the public and thus recommends itself as the “government in waiting” at the next elections (Hartmann 2004, p. 17). The executive-legislative relationships in Germany follow the parliamentary model. The Bundestag elects the chancellor with the majority of its members (Art. 63 GG) and can also remove her or him with the same quorum (Art. 67 GG), which meets the central criterion of parliamentarism. The head of government stays in office as long as the majority of MPs support him or her. However, Article 67, paragraph 1 of the Basic Law contains an important additional provision. The Bundestag can only remove the chancellor if it elects a successor at the same time. This constructive vote of no confidence, which stems from an idea by Ernst Fraenkel (1932), strengthens the chancellor, as does the fact that the Bundestag can neither elect nor remove the other members of the federal government. Hence, the Basic Law ensures “that a government, once installed, sits quite securely in the saddle” (Decker 2011, p. 55). The parliamentary system of Germany has further institutional features that result from the chancellor’s political dependency on the Bundestag majority (Decker 2011, p. 49; Steffani 1979, pp. 45–48): . Unlike in presidential systems, it is possible to hold government office and be an MP concurrently. Indeed, most federal ministers are also members of the Bundestag (Chapter 10.2).

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. Since the federal government is politically interconnected with the Bundestag majority, it determines the legislative agenda. Therefore, the federal government also has the right to introduce bills in the Bundestag (Art. 76, para. 1 GG), which it uses extensively (Chapter 9.2). . The tenures of parliament and government are closely aligned. A new chancellor is usually elected by a newly elected Bundestag. Conversely, the Bundestag can only be dissolved if the election of the chancellor fails (Art. 63, para. 4 GG) or if the chancellor is not supported by a majority of MPs in a vote of confidence (Art. 68 GG). In both cases, the federal president decides whether to call new elections or keep the chancellor in office. This procedure is designed to prevent government instability. For the same reason, the Basic Law makes no provision for the Bundestag to dissolve itself. Moreover, institutional continuity is safeguarded by the fact that each Bundestag stays in office for as long as it takes to form its newly elected successor (Art. 39 GG).1 . The stability of government rests on the political support of the parliamentary majority. Therefore, the parliamentary groups have extensive competencies under the Rules of Procedure of the German Bundestag (Geschäftsordnung des Bundestages; Chapter 9.2). In a parliamentary system, the decisive dividing line does not run between parliament and government but within parliament between the government majority and the opposition. Consequently, the way the Bundestag fulfils its tasks differs for the various parliamentary functions. The electoral and legislative functions are essentially the task of the government majority, while the oversight function is largely the job of the opposition. Both government and opposition groups perform the representation and communication functions, but they do so separately and according to their own political interest. Thus, the performance of distinct parliamentary groups stand out in day-to-day politics, while the Bundestag as a whole usually remains in the background.

1 Until 1976, the parliamentary term of the Bundestag ended “four years after its first assembly or with its dissolution” (Art. 39, para. 1 GG old version). The institutional vacuum between two parliamentary terms was bridged by a Standing Committee of the Bundestag (Art. 45 GG old version).

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Federal Government Federal President

appoints

311

Federal Constitutional Court

Federal Ministers Federal Chancellor

nominates ministers elects/dismisses

elects/dismisses

Federal Convention

form half of the members

elects half of the judges

Bundestag

elects half of the judges

Bundesrat legislation

send half of the members

State parliaments

elect

elect/dismiss

appoint/ recall members

State governments

elect

Citizens

Fig. 9.1 The federal system of government (Source Authors’ compilation)

The political powers of the Bundestag not only depend on its own competences and its relationship to the federal government but also on further institutional arrangements. Figure 9.1 shows the interrelationships between the supreme federal organs. The Bundestag sits at the centre of the chart, because the federal government depends on it politically. Moreover, its scope of action is not limited by a powerful head of state since the federal president only has limited political authority (Chapter 10.4). The lack of an option to trigger a referendum also underpins the position of the Bundestag as the legislator. At the same time, there are powerful “co-regents” (Schmidt 2016, pp. 162–166) that limit the Bundestag’s

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political discretion: the Bundesrat (Chapter 11) and the Federal Constitutional Court (Chapter 12). Notably, the parliament’s capacity to act is also restricted by the supranational framework of the European Union (Chapter 3). Overall, the relationship between the Bundestag and the federal government follows the model of majoritarian democracy while it is embedded in a system of checks and balances that corresponds to the model of consensus democracy. In this institutional setting of mutual dependencies, the Bundestag faces the challenge of maintaining its constitutionally elevated position as the seat of popular sovereignty in political practice.

9.2

Internal Organisation Between a Debating Parliament and a Working Parliament

In order to fulfil its key functions for representative democracy, a parliament can follow two different models of organisation (Steffani 1979, pp. 95–97). In the first model, the parliament forms a political arena where MPs publicly engage to find solutions to the country’s most important issues and thus carry out their functions of representation and communication. This model is called the debating parliament. It becomes particularly obvious in a parliamentary system with a bipolar confrontation between the government majority and the opposition, which conveys a clear sense of who is responsible for political decisions according to the logic of majoritarian democracy. In the second model, the internal structures and procedures of parliament are primarily supposed to facilitate the passing of appropriate legislation and to enable the effective scrutiny of the government. This organisational model is called the working parliament. In this perspective, parliament becomes “a pronounced political bureaucracy seeking answers and information from the experts in the executive in a highly intensive and knowledgeable manner and examining their activities and intentions in depth with detailed questions on any single issue” (Steffani 1979, p. 97). Thus, the working parliament follows the logic of consensus democracy by aiming to include diverse interests and to foster issue-based cooperation. The Bundestag can be characterised as a “working debating parliament ” (Steffani 1979, p. 338) because it attempts to strike a balance between the two models. To achieve this, it has a differentiated organisational structure based on various legal foundations. The basic principles and the most important structures and procedures of parliamentary

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work are enshrined in the Basic Law. The most comprehensive regulations can be found in the Rules of Procedure of the German Bundestag (Geschäftsordnung des Deutschen Bundestages; GOBT), which the Bundestag gave itself “independently [and] without co-determination rights of other state bodies” (Kretschmer 1989, p. 301; Art. 40, para. 1 GG). Its historic origins go back to the Rules of Procedure of the Prussian Landtag of 1849. The first Bundestag adopted the respective regulations of the Weimar Reichstag before it passed its own rules of procedure in 1952. Thus, the GOBT stands in a line of continuity with these rules and contributes to the institutional stability of parliament across the individual legislative terms. Nevertheless, the rules of the GOBT can be changed with a simple parliamentary majority, and indeed they frequently have been amended (Feldkamp 2022, section 12.1; Schindler 1999, pp. 3093– 3107). The government majority also determines the interpretation of the Rules of Procedure of the German Bundestag (Rules 127–128 GOBT); in individual cases, it is possible to deviate from the rules if the Bundestag votes for this with a two-thirds majority. In addition to the GOBT, there are federal laws that regulate the work of parliament, in particular the Members of the Bundestag Act (Abgeordnetengesetz; AbgG) and the Committees of Inquiry Act (Gesetz zu Untersuchungsausschüssen; PUAG). Figure 9.2 shows that the organisational structure of the Bundestag consists of three components: the individual MPs, the parliamentary groups in which these MPs team up according to their party affiliation and the intra-parliamentary structures in a narrow sense (plenary, leadership and administration, committees). Representatives, parliamentary groups and the parliamentary structures form a complex web of relationships that shapes the functioning of the Bundestag between a debating parliament and a working parliament. In the next paragraphs, we will exhibit these components in more detail. Chapter 9.3 will then explain how they contribute to the fulfilment of the parliamentary functions described above. Members of Parliament: The Bundestag has 598 regular members. Half of these are elected in single-member constituencies (these are called constituency MPs ) and the other half enter parliament via party lists (partylist MPs ). Due to the many overhang and compensatory seats resulting from the electoral reform of 2013, the real proportion has shifted in favour of the party-list MPs (Chapter 5.1). Constituency and party-list MPs have the same rights and the same resources in the Bundestag. Nevertheless, both groups have different emphases in their understanding

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President of the German Bundestag

Presidium

of the German Bundestag

Council of Elders

Parliamentary groups

Plenary

of seats (2021) SPD CDU/CSU The Greens FDP AfD

736 Members of Parliament 206 197 118 92 83 39

- Study commissions Immunity and the Rules of Procedure - Parliamentary Oversight Panel

Fig. 9.2 Organisational structure of the German Bundestag (Source Authors’ compilation. Note Seat allocation refers to the immediate result of the 2021 Bundestag elections. One MP of the South Schleswig Electoral Association [SSW], a Danish minority party, does not belong to any parliamentary group)

of representation corresponding to how they were elected (Dageförde and Schindler 2018, pp. 204, 206; Schmitt and Wüst 2004, pp. 21– 22). While local relationships play a greater role for constituency MPs, party-list MPs focus more immediately on the party line. However, these different self-perceptions mean very little in parliamentary practice, since most persons with a promising party-list ranking (that means they have good chances of gaining a list seat) also stand as constituency candidates. They conduct their election campaigns in these constituencies and are regularly present there after the elections. The (list) MPs from smaller parties in the Bundestag need to cover several constituencies since the vast majority of constituency seats is won by the CDU/CSU and the SPD.

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As described above, the Basic Law endows MPs with specific rights to freedom and protection so that they may carry out their mandate as people’s representatives in the best possible way (Art. 38 GG; Art. 46–48 GG). The Members of the Bundestag Act specifies these constitutional provisions in two respects. On the one hand, it regulates the financial compensation and resources of MPs. According to the “compensation judgement” by the Federal Constitutional Court in 1975, being a member of the Bundestag constitutes a professional activity that suggests the need for a “full allowance paid from the public purse” and justifies an income level allowing for a lifestyle commensurate with the significance of the office (BVerfGE 40, 296, 315–316). Pay increases passed by the Bundestag have repeatedly led to a lot of criticism (Ismayr 2012, pp. 70–73). Such discussions have sometimes taken on populist dimensions when income increases for MPs were interpreted as proof of their allegedly self-serving mentality (von Arnim 1997). Needless to say, this shows a fundamental dilemma: on the one hand, parliament is the only institution to make decisions on the payment of its members, since its democratically legitimised sovereignty would otherwise be compromised; on the other hand, there are no other groups in politics and society who can determine their earned labour income with complete autonomy. The provisions covering pay for MPs therefore aim to achieve the highest possible transparency and accountability. The taxable allowances are not determined at random but are aligned with the salaries of the highest federal judges (Section 11 AbgG; since 1 July 2022: e10,323.29/ month). Moreover, they are adjusted every year based on the nominal wage index as determined by the Federal Office of Statistics. In addition, each MP receives a tax-free allowance intended to cover expenses associated with their work as parliamentarians, such as for maintaining a constituency office, for travel costs and others (Section 12 AbgG; since 1 January 2023: e4,725.48/month). Moreover, there are cash and in-kind benefits including a Bundestag office, resources for personal assistants, financial assistance with health insurance and free use of public transport. MPs also receive a pension. For every year in the Bundestag, they get a retirement income entitlement of 2.5% of their monthly allowance, paid from age 67 up to a limit of 67.5% of their monthly allowance. Since the professional activity of being an MP is a “full-time job”, the existence of pension entitlements is generally consistent with this; at the same time, this generous pension model incentivises long-term careers in parliament (Ismayr 2012, p. 78).

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The Members of the Bundestag Act also regulates professional activities beyond being an MP. There are almost no formal restrictions on holding further political offices. Following the logic of the parliamentary system, MPs can also be members of the government (Chapter 9.1). Likewise, they can hold parliamentary seats on other levels of the system. During the first three terms of the Bundestag, many MPs also held mandates in state parliaments (Schindler 1999, p. 459); concurrent membership of the Bundestag and the European Parliament was also the rule until 1979. Nowadays, such dual mandates are rare exceptions, since the weekly workload of an MP is between 57 and 65 hours and therefore is not compatible with performing an additional job as a member of another parliament (Bräth 2017). Concurrent membership of the Bundestag and Bundesrat is explicitly prohibited (Section 2 GO BR). Since the Bundesrat consists of members of the state governments, MPs may not be members of a state government either. Working in other professional capacities is more strictly regulated. In order to avoid conflicts of interest, MPs may not be subjected to the command of superiors at work or of clients. Public servants must therefore stop working during their term in parliamentary office; only university professors may continue to perform teaching and research (Sections 5, 8–9 AbgG). Bundestag MPs are not prohibited from carrying out private commercial activities. Such a prohibition would be incompatible with the idea of a parliament that reflects a pluralist society. Furthermore, it could not be adequately applied to self-employed groups like lawyers, entrepreneurs or farmers. However, economic self-interest may not impinge on the free exercise of the parliamentary mandate. For this purpose, the Bundestag created transparency rules that were beefed up after the party donation scandals in the 1980s (“Flick affair”) and in the late 1990s (“slush funds” under Chancellor Helmut Kohl; Appendix 1 GOBT; Sections 44a, 44b AbgG). Thus, MPs must register all paid second jobs, and this list of jobs and additional income must be published in the Bundestag official manual and online. In cases where MPs have to sign non-disclosure agreements for professional reasons (e.g. when they act as lawyers), this reporting may be carried out in anonymised form. In spring 2021, these transparency rules were significantly tightened and incorporated into the Members of the Bundestag Act after it became apparent that several MPs—mostly belonging to the CDU/CSU group— had received share options, fees or donations for “consultancy services” for companies or third countries, including Azerbaijan. The fact that

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some of them had also accepted high commission payments for brokering the procurement of COVID-19 masks caused particular public outrage. Against this background, the government parties agreed that company shares exceeding five percent and additional incomes by MPs are to be declared if they exceed the limits of e1,000 per month or e3,000 per year. Moreover, members of the Bundestag may not accept donations or fees for talks and presentations given in relation to carrying out their public office. Following the British political philosopher Edmund Burke (1729– 1797), parliamentary research differentiates between two classic types of representatives: “trustees ”, who participate in the parliamentary will formation and decision-making according to their own judgement and who are only accountable to their voters in a very general way, and “delegates ”, who have to bring their voters’ preferences into parliament and realise them there. Accordingly, German MPs must always strike a balance between representing their specific electorate and serving the common good. To understand how Bundestag members navigate the tension between the debating parliament and the working parliament, we can draw on two ideal-typical role profiles (Poyet and Siefken 2018, p. 150). On the one hand, MPs may act as generalists towards their political base. Usually, they are linked to a specific constituency and its local party organisation. The strength of this local connectedness significantly affects their re-election chances. Therefore, they try to be present on the ground as often as possible, taking part in social events, offering office hours and communicating via the local press and social media. In doing so, they need to be informed and take positions on a wide range of current developments, from local and state to federal and EU politics (Ismayr 2012, pp. 76–82). However, parliamentary work primarily requires specialists. In order to influence legislative processes, MPs have to acquire expertise in specific policy areas. This not only means gaining knowledge about the subject but also establishing information and communication networks that include important fellow party members, lobbyists, civil servants from the relevant ministries and journalists in their respective area of expertise (Ismayr 2012, p. 82). Depending on their personality and political experience, individual MPs tend to become either “constituency kings” or “stars in parliament” (von Beyme 2017, p. 302). However, if the Bundestag is to fulfil its central functions, all of them have to successfully balance the roles of generalist and specialist (Chapter 9.3).

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Regarding the position of MPs within the Bundestag, they have very few individual rights. They can bring motions to amend agendas and bills, they can participate in debates and votes and they can ask the federal government individual questions (for a comprehensive list see Ismayr 2012, pp. 44–45). At first glance, this narrow number of competences seems inconsistent with the far-reaching autonomy that the Basic Law has assigned to MPs. However, the free mandate enshrined in Art. 38 GG is in tension with parliamentary party discipline, which means the basic obligation to support the position of one’s own parliamentary group when voting in parliament. In everyday politics, these two norms are not incompatible but are closely intertwined. Parliamentary work is a “team sport” (Patzelt 2003, p. 28). The teams are groups of MPs organised along party lines who internally agree on common positions before they present them jointly to the world. “Free mandate” does not mean that MPs can ignore all the expectations and demands of the party that they stood for in the elections (Meyer 1975, pp. 94–95). Rather, Article 38 of the Basic Law serves to strengthen minority positions in internal debates and thus promote the “openness of the will formation within the party and the parliamentary groups” (Enquete-Kommission Verfassungsreform 1976, p. 25). Although one may not entirely rule out “enforced” party discipline, in the sense of a pressure on “dissidents” to adapt (Sendler 1985), individual MPs are also free to raise their profile within their own parliamentary group and thus strengthen their position. Parliamentary groups are associations of MPs who “belong to the same party or to parties which, on account of similar political aims, do not compete with each other in any Land” (Rule 10, para. 1 GOBT). This wording ensures that the Christian Democratic Union (CDU) and Christian Social Union (CSU) can continue their work as a joint parliamentary group, which they have renewed after every election since 1949. Therefore, the current Bundestag comprises six parliamentary groups that consist of seven parties (Fig. 9.2). All other associations of MPs who wish to be recognised as parliamentary groups need majority approval by the Bundestag. In addition, the minimum size of a parliamentary group is set at 5% of the MPs. This barrier, which corresponds to the electoral threshold (Chapter 5.1), is designed to prevent an organisational fragmentation of parliament. However, parties with fewer members have repeatedly entered the Bundestag. They can be recognised as groupings that have a status comparable to parliamentary groups (Rule 10, para. 4 GOBT). An example is the PDS, which failed to reach the 5% threshold

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in the 1994 federal elections. Nevertheless, it met the conditions of the “basic mandate clause” by having four MPs elected in single-member constituencies and therefore received the status of a grouping with a proportional allocation of 4.5% of the seats. It is difficult to ascertain the legal status of parliamentary groups. The Basic Law mentions them only in one place and, at that, only in passing (Art. 53a, para. 1 GG). According to a judgement of the Federal Constitutional Court, they are “permanent divisions within the Bundestag” (BVerfGE 80, 188, 231), but they also are associations “with legal capacity” and “may sue and be sued” (§ 54 AbgG). Moreover, the parliamentary groups within the Bundestag establish their own rules of procedure, which underpins their institutional autonomy. The central function of parliamentary groups is very clear. They are “substantial factors in the political will formation” (BVerfGE 80, 188, 219) by combining “diverse political positions [of MPs] into units with the capacity to take action and communicate” (BVerfGE 80, 188, 231). Therefore, they also have the right to decide on filling the positions in Bundestag committees and on central parliamentary procedures. To enable the parliamentary groups to effectively bring together the interests of their MPs and take positions on current legislative issues, they are structured both hierarchically and according to specialised areas of expertise (Schüttemeyer 1998, pp. 311–312). Each parliamentary group is led by an executive committee that is elected by all its members. The executive committee’s term of office differs from parliamentary group to parliamentary group, running between one and two years (Ismayr 2012, p. 115). Information from different parts of the parliamentary group is brought together in the executive committee. The committee prepares plenary debates, ensures unity in upcoming votes and makes preliminary decisions on political-strategic issues. The actual body responsible for votes and decisions is the parliamentary group meeting, which is convened once per week while parliament is sitting. The executive committees of the largest parliamentary groups—the CDU/CSU and the Social Democrats (SPD)—include between 40 and 70 MPs. In order to manage such large bodies, both parliamentary groups have established a steering committee as the strategic centre. It includes the chairs of the parliamentary group, their deputies and the parliamentary managers. The parliamentary managers (Parlamentarische Geschäftsführer) have a key role because they are responsible for managing the parliamentary groups on a day-to-day basis (Petersen 2000) and act as representatives of their

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group in the Mediation Committee of the Bundestag and Bundesrat (Chapter 11.1). Below the level of the executive committee, the parliamentary groups are divided into different organisational units. Generally, members of a parliamentary group who belong to the same Bundestag committee form a working group. In the smaller parliamentary groups of the Greens, the Free Democratic Party (FDP) and the Left party, several working groups are combined into working circles in order to discuss cross-sectoral issues and positions (Mai 2022). In the Alternative for Germany (AfD), the parliamentary group is organised in 25 working circles reflecting the committee structure; and there are further internal working groups. The larger parliamentary groups are even more differentiated in terms of representation and policies. For instance, the SPD parliamentary group has specially designated representatives for churches and religious communities, for the needs of people in care and for company founders. The CDU/CSU parliamentary group has its own sub-organisation for sectoral interests like the “Parliamentary Circle for SMEs”, the “Group for Workers” or the “Working Group for Local Politics”. Within the SPD parliamentary group, there are also three ideological wings that have actively attempted to influence the party line. Since the 1970s, the centreright “Seeheimer Circle” and the “Parliamentary Left” have been at the opposite ends of the scale, while the “Network Berlin” faction, founded in the late 1990s, occupies a position in the middle. In the CDU/ CSU parliamentary group, sub-groups from the different German states have been of greater significance than in the SPD parliamentary group (Kwaschnik 2018). The CSU state group has a special role. Not only does it have a high degree of organisational independence but it is also closely aligned with the CSU party leadership. There have been occasional conflicts between the CSU and the CDU, escalating in 1976 and 2018 and culminating in the CSU’s threat to leave their joint parliamentary group. This helped the CSU to raise its profile as an independent party with distinct aspirations on the federal level (Ismayr 2012, pp. 107–111). At the lowest organisational level, there are the rapporteurs —these are MPs tasked by the leaders of the parliamentary group with responsibility for guiding a specific legislative process. They develop the parliamentary group’s positions regarding draft bills and coordinate them with other parliamentary groups (Schüttemeyer 1998, pp. 299–300). Because of their expertise, their proposals are usually approved by other members

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of the parliamentary group without much discussion. Thus, the rapporteurs are at the heart of the collaborative organisation of parliamentary groups and contribute significantly to their effectiveness. However, this “atomisation” of political will formation within the parliamentary groups makes the process difficult to reconstruct for those without the required expertise—inside and outside parliament (Ismayr 2012, p. 440). As independent units of the Bundestag, the parliamentary groups have their own support services, funded by the parliamentary budget and expanded significantly over time. In 1957, the support services for parliamentary groups only consisted of 25 members of staff (Schöne 2009, p. 155), while 1,121 staff members were employed there in 2022 (Feldkamp 2022, section 5.9). This administrative support is particularly important for the parliamentary groups in opposition, who cannot rely on the administrative support of the ministerial departments. Since 1977, they have received a financial supplement intended to make up for their resource disadvantages compared to the governmental parliamentary groups (Deutscher Bundestag, Wissenschaftliche Dienste 2009, pp. 4– 5). For the parliamentary groups in government, the mutual exchange of information and opinions with the executive is of specific importance. To facilitate this, there are numerous, mainly informal panels, structured differently under each government and almost impossible to review in their entirety. For instance, under the Scholz government (since 2021) the coalition committee plays an important role in policy coordination. As agreed upon in the coalition agreement, its members are the chancellor (SPD) and other central government members, such as the vice chancellor (Greens) and the finance minister (FDP), the head of the Federal Chancellery (SPD) and the party and parliamentary group chairs of the SPD, Greens and FDP (SPD, Alliance 90/The Greens, FDP 2021, p. 138). Vice versa, the federal ministers and their parliamentary state secretaries take part in the parliamentary group’s meetings and working groups, thus forming another link between the federal government and its parliamentary majority (Groß and Bohnefeld 2010, p. 244; Mai 2022, p. 749; Chapter 10.2). Intra-parliamentary structures. Political will formation and decisionmaking do not only happen within the individual parliamentary groups. They predominantly occur between the parliamentary groups of the government and those of the opposition, who encounter each other in different contexts. The most visible stage is the full assembly of all Bundestag members, called the Bundestag plenary. This is where all MPs

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come together to carry out the most important parliamentary tasks: the election and removal of the Chancellor, the political exchange of arguments between government and opposition and the votes on legislative bills and the federal budget. Thus, plenary sessions are the central arena of the debating parliament. The Rules of Procedure of the Bundestag and the Members of the Bundestag Act contain numerous provisions that underpin this position of the plenary. Two-and-a-half days in each of the 20 weeks a year in which the Bundestag is in session are reserved for plenary sessions, with Thursday morning as the “core time”. MPs must be present on the days of plenary sessions, and their attendance must be verified by signature (Section 14 AbgG). However, their presence is not monitored throughout the entire session and the sanctions for absence are quite limited (a reduction of the flat rate expense compensation by e200 for unexcused absences and e100 for excused absences). In order to make the political distinction between government and opposition as obvious as possible, the plenary sessions are organised according to the principle of “speech and counter speech”, meaning that a contribution by a government representative is usually followed by a “divergent opinion” (Rule 28, para. 1 GOBT). Moreover, the opposition is allocated adequate speaking time. Not least, as long as the MP speaking agrees, the chairs of the plenary session may allow interjections by other representatives in order to facilitate a direct confrontation of differing positions (Rule 27, para. 2 GOBT). In order to carry out its supervisory tasks, the Bundestag may “require the presence of any member of the Federal Government” (Art. 43, para. 1 GG). In this context, it has various methods of inquiry at its disposal (see below). Conversely, members of the federal government can participate in the sessions of the Bundestag and “have the right to be heard at any time” (Art. 43, para. 2 GG). The right to access and speak in parliament also applies to the members of the Bundesrat. This is an unusual provision in international comparison and dates back to the constitution of the North German Confederation in 1867 (Lehmbruch 2000, pp. 147– 149). In the 1970s, this right was extensively used by Christian democrat members of the Bundesrat, such as the then prime minister of RhinelandPalatinate, Helmut Kohl. In this case, Kohl was not so much interested in representing the position of his state but—completely within the logic of the debating parliament—in criticising the policies of the federal government before the public as party leader of the opposition CDU. After the change of government in 1982, representatives of states governed by the

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SPD continued to instrumentalise the right to speak in the Bundestag. Today, even when Bundesrat members are present in the Bundestag, they speak out much more rarely (Feldkamp 2022, section 7.8). While the Bundestag plenary may be a site of conflict, the parliamentary leadership is characterised by cooperative working relationships. The Bundestag is chaired by a president (Bundestagspräsident ), who is elected in its constituting session for the entire legislative term in a secret ballot (Rule 2, para. 1 GOBT). According to an informal consensus that dates back to the Weimar period, the president of the Bundestag is a member of the largest parliamentary group. This is the case even if that group is in the opposition, as was the case with the CDU/CSU parliamentary group from 1969 to 1982. In addition, there is at least one vice president for each of the parliamentary groups, elected according to the same procedure (Rule 2, para. 2–3 GOBT). In spite of this regulation, which came into force in 1994, there was major resistance against admitting members of new parliamentary groups to the vice-presidential positions. In 1994, Antje Volmer was elected as the first vice president of the Greens, although the party had been represented in the Bundestag since 1983. In 2005, Lothar Bisky, the first candidate nominated for the office of vice president by the Left parliamentary group, failed to be elected; it was not until a year later that Petra Pau was elected in his stead. When the rightwing populist AfD entered the Bundestag for the first time in 2017, this pattern was repeated. All candidates proposed by this parliamentary group were rejected by a clear majority during several rounds of voting. This continued in the ensuing parliamentary period (Leunig 2022, p. 768). Therefore, the current Bundestag still has only five instead of the six vice presidents envisaged in the parliamentary guidelines. The senior president (Alterspräsident ) leads the constituent session of the Bundestag until the president is elected. This temporary office was originally filled by the oldest MP. Following an amendment to the Rules of Procedure in March 2017, the decisive factor now is the length of service within parliament (Rule 1, para. 2 GOBT). The intention behind this change was the desire to prevent the possibility of a member of the AfD parliamentary group opening the nineteenth German Bundestag. This new rule was discussed heatedly in parliament and in public. In terms of protocol, the Bundestag president occupies the second highest office of state after the federal president. He or she represents the parliament externally, exercises “proprietary and police powers in the Bundestag building” (Art. 40, para. 2 GG), is the formal head of the

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Bundestag administration and is responsible for the supervision of the funding of political parties (Chapter 6.1). In addition, the Bundestag president has the right to make decisions on certain issues of the rules of procedure (Ismayr 2012, pp. 149–150). Like the vice presidents, he or she remains a member of his or her party and parliamentary group. However, the president is careful about making political statements when representing the parliament in public and towards other constitutional bodies (Wermser 1984, p. 97). The president of the Bundestag coordinates with his other deputies in the Presidium of the Bundestag in all important matters. The actual organisation of the parliamentary work is the duty of the Council of Elders (Ältestenrat ). This panel, in existence since 1969, consists of the presidium members and 23 further MPs who are nominated by the parliamentary groups in proportion to their seats (Rule 6, para. 1 GOBT; Marschall 2000, pp. 13–14). This includes the parliamentary managers, who act as spokespersons for their parliamentary group. The most important tasks of the Council of Elders include the coordination of dates and agendas for plenary sessions, the arbitration of disputes and the communication of reports and materials for the information of the Bundestag (EU documents, regulations of the federal government, etc.). It also makes decisions on various administrative matters, such as the allocation of office spaces and the organisation of construction work. A high-ranking representative of the federal government also participates in the sessions of the Council of Elders to coordinate the daily business of the Bundestag and the federal government. The head of the Bundestag administration is the Secretary-General of the German Bundestag (Direktor beim Deutschen Bundestag ), who acts on behalf of the president. Around 3,000 administrative staff support the work of the plenary, the committees and further parliamentary panels. The administration also includes the Bundestag police, who maintain order and security in what is the smallest police district in Germany (Igel and Feldkamp 2013). The Parliamentary Research Services, founded in 1970, play a special role. MPs can turn to them for brief information, documentation and assessments. With 60 assessors in ten areas of expertise (Strasser and Sobolewski 2018, p. 158), the Parliamentary Research Services are much less well-resourced than the support services of the parliamentary groups, which again emphasises their elevated position. Below the level of the Bundestag plenary, there are a numerous permanent or term-limited committees. This committee system forms

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the institutional centre of the working parliament. The expert standing committees play a central role in the legislative process. The Basic Law only mandates the Committee on Foreign Affairs (Art. 45a GG), the Defence Committee (Art. 45a GG) and the Committee on European Union Affairs (Art. 45 GG) as well as the Petitions Committee (Art. 45c GG). All other committees are established based on agreements between the parliamentary groups. The issues covered in the committees follow the portfolio allocation of the federal government, i.e. each ministerial portfolio usually corresponds to a Bundestag committee (Siefken 2018, p. 780). Only the areas of internal affairs and finances are divided into two committees each (Committee on Internal Affairs/Community and Sports Committee; Finance Committee/Budget Committee). In addition, several committees carry out cross-departmental tasks (Committee on European Union Affairs, Committee on Human Rights and Humanitarian Aid, Committee on Tourism). To date, during the 20th Bundestag term, 23 expert standing committees have been established (Bundestag 2022; Holzapfel 2023, pp. 330–332). Following portfolio allocation, these committees were established immediately after government formation. During the coalition negotiations after each of the three last elections, the Bundestag temporarily formed a main committee, which took over the consultation on all proposals from the Bundestag plenary until the expert standing committees could be established. The composition of the Bundestag committees is proportional to the parliamentary groups and thus reflects the political majorities in the Bundestag (Rule 57 GOBT). Independent MPs may participate in committee sessions in an advisory capacity only, i.e. they can speak and propose bills but they do not have voting rights. The size of the individual committees is determined at the beginning of each legislative term by the parliamentary managers. If they do not reach an agreement, a decision by the Bundestag plenary is necessary. The number of committee members varies according to the policy issues and the demand for consultation. In the parliamentary term starting from 2021, it ranged between 49 MPs (Committee for Labour and Social Affairs) and 19 MPs (several committees such as the Sports Committee and the Tourism Committee). The parliamentary managers also decide on which members of their parliamentary groups are delegated to which committees. In this regard, several traits of the MPs are considered, such as professional background, parliamentary experience, ideological self-positioning and regional background. Since the committees offer different opportunities for members to raise

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their profile—depending on the policy issues and their relevance—the assignment of committee seats can often lead to conflicts within the parliamentary groups (Ismayr 2012, pp. 166–171). The allocation of committee chairs also corresponds to the size of the parliamentary groups (Rule 12 GOBT). This rule follows the model of consensus democracy, since the parliamentary opposition is included proportionally. Traditionally, the largest parliamentary group in opposition holds the chair of the Budget Committee, which has special supervisory authority for proposed legislation with financial impact (Sturm 1985). This chair is probably “the most important parliamentary office” for the opposition (Ismayr 2012, p. 350). The chairpersonships of all other committees are of minor significance, particularly when compared to executive positions in the parliamentary groups. The expert standing committees are responsible for “preparing the decisions of the Bundestag” (Rule 62, para. 1 GOBT). They receive draft legislation for consultation after the first reading in the plenary and subsequently return it with a recommendation (Fig. 9.3). Generally, the Bundestag plenary accepts the recommendations of the relevant committees. This is not only because the same political majorities exist there as well but also because the committees substantially revise and amend the bills. There is also an option of establishing subcommittees or working groups that have the task of assessing certain policy details. Moreover, the committees may consult external experts like academics or representatives of associations in order to take diverse perspectives and positions into account (Schüttemeyer and Siefken 2008, p. 499; Chapter 7.2). Finally, representatives of federal ministries responsible for the draft legislation (ministers, parliamentary state secretaries and leading civil servants) participate regularly in committee sessions. Their presence does not so much reflect “the supervisory power of the MPs, but rather the dominance of the ministerial civil service over politics in general” (Ismayr 2012, p. 181). This is also apparent in the fact that committee members of the governing parliamentary groups often receive assistance from federal ministries in revising the wording of the bills. In contrast to the Bundestag plenary, the committee sessions are “in principle not open to the public” (Rule 69, para. 1 GOBT), which is intended to facilitate issue-based discussions beyond ideological differences. For this purpose, speaking time in committees is not limited in line with the size of parliamentary groups; instead, members are permitted “to speak in the order in which they have requested leave to speak” (Rule

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BUNDESRAT

Bill proposal Opinion Counter-statement

Consulta on phase

Ini a on phase

BUNDESREGIERUNG

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First reading Discussion in committees Second reading

Third reading (Vote in Bundestag) Rejection

Adoption of the law

Legislation fails

Vote in Bundesrat

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Consent

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Mediation Committee (MC) Proposed amendment

Rejection Legislation fails

No proposed ammendment

New vote on the bill

Vote in Bundesrat Consent

Countersignatures of Federal Chancellor and minister in question

Federal President: certification and promulgation

Rejection Legislation fails

§

Fig. 9.3 Procedure for federal legislation (Source Authors’ compilation. This overview focuses on bills tabled by the federal government, which is the most common procedure)

59, para. 2 GOBT). However, if one quarter of the committee members so demand, public hearings may be held (Rule 70, para. 1 GOBT). Furthermore, there are differences between the individual committees regarding the frequency of public meetings. The Committee on Health and the Finance Committee regularly hold public sessions while the Defence Committee almost never does. Overall, the proportion of public

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committee sessions has risen significantly since the 1970s (Feldkamp 2020, section 8.7). Nevertheless, the divide between government and opposition also determines the committee work. Even after “a debate generally conducted in a collegial spirit, the majority groups usually vote the way it was agreed and decided before within this parliamentary group or its working group or working circle” (Ismayr 2012, p. 184). There are further committees that do not deal with draft legislation. These include the Petitions Committee, which is mandated by the Basic Law (Art. 45c, para. 1 GG) and deals with petitions and complaints directed to the Bundestag, and the Committee for the Scrutiny of Elections, Immunity and the Rules of Procedure, which concerns itself with objections to the federal elections, supervises the immunity of MPs and acts as an arbitrator on disputes regarding the rules of procedure. The Parliamentary Oversight Panel (Parlamentarisches Kontrollgremium, PKGr) also has a special position in the committee system of the Bundestag. Constitutionally mandated since 2009 (Art. 45d, para. 1 GG), it supervises the federal secret services, i.e. the Federal Intelligence Service (Bundesnachrichtendienst, BND), the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz, BfV) and the Military Counterintelligence Service (Militärischer Abschirmdienst, MAD). The 13 members of the PKGr are not nominated in proportion to the parliamentary groups but are elected by the Bundestag with an absolute majority. This makes it possible for the government parliamentary groups to prevent unwanted opposition MPs from participating. The PGKr has privileged rights of access, consultation and file inspection, which are regulated by law. Its meetings take place in strict secrecy, even from other MPs. It reports to the Bundestag twice in a legislative term, while the public is only informed in exceptional cases. Since 2016, its supervisory capacities have been expanded—for instance, its staff numbers were increased and annual hearings with the presidents of the intelligence services were introduced (Ismayr 2018, p. 27). The PGKr is supported by the G10-Commission, which supervises all restrictive measures of the postal and telecommunication secrecy protected in Article 10 of the Basic Law and decides on their applicability and necessity. The four members of this commission, who do not need to be MPs, are appointed by the PGKr. In addition, two non-permanent panels deserve to be mentioned here. Since 1969, the Bundestag has had the right to establish study commissions (Enquete-Kommissionen) “for the preparation of decisions

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on wide-ranging and significant issues” (Rule 56, para. 1 GOBT) and is obliged to do so if a quarter of its members demand that they be established. Study commissions consist of MPs and external experts nominated by the parliamentary groups. They can also be extended beyond a legislative term. Furthermore, the Bundestag has the right and, if a quarter of its members request it, the duty to establish a committee of inquiry (Untersuchungsausschuss ) in order to investigate grievances in the federal government and administration (Art. 44 GG). Since the scrutiny of the government in a parliamentary system is essentially the task of the opposition, committees of inquiry are usually requested by the minority parliamentary groups. Since 1961, there have been between one and five such committees in each legislative term. Among the expert standing committees, only the Defence Committee has the right to constitute itself as a committee of inquiry as well (Art. 45a, para. 2 GG). Finally, the Bundestag, together with the Bundesrat, also establishes “mixed institutions” (Strasser and Sobolewski 2018, p. 88). Besides the Mediation Committee (Chapter 11.1), this applies to the Joint Committee, which can replace Bundestag and Bundesrat in a state of defence as an emergency parliament (Art. 53a, 115a and 115e GG; Chapter 2.2). It consists of 16 members of the Bundesrat and 32 members of the Bundestag, who convene under the chair of the Bundestag president and make their decisions with a simple majority.

9.3

The Functional Profile of the Bundestag

The internal structure of the Bundestag is essential for carrying out the four parliamentary functions in a representative democracy: the election of public office holders, legislation, government oversight as well as representation and communication (Chapter 9.1). The extent to which the Bundestag fulfils these functions in practice depends on its embedding in the institutional setting and the structure of the party system. We will show this in more detail below. Election of public office holders. As a democratically elected parliament, the Bundestag makes decisions on appointments to high offices in politics and administration. Due to the federal state structure, it partly carries out this task together with the representatives of the Länder. This applies to the election of the federal president by the Federal Assembly (Chapter 10.4) as well as the appointment of the judges to the Federal Constitutional Court and the other high federal courts (Chapter 12.1).

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Moreover, it elects the leadership of federal authorities that have a special status within the executive, such as the president of the Federal Court of Audit (Bundesrechnungshof ), together with the Bundesrat. The main task of the Bundestag in this context is the election of the chancellor (Art. 63 GG). In the Weimar Republic, the Reich president appointed the chancellor at his own discretion (Art. 53 WRV). In the federal republic, the government cannot get into office without the support of the Bundestag. However, the Bundestag does not have a formal influence on the composition of the federal cabinet nor does it determine the government programme by a vote of confidence, as is common in some other European democracies (Sieberer 2010). Moreover, the election of the chancellor takes place without a parliamentary debate (Art. 63, para. 1 GG) and by secret ballot (Rule 4 GOBT). When majorities are precarious, this regulation may promote a consensusoriented vote in favour of a candidate but also facilitate the rejection of a candidate by critics within the government camp. In any case, the secret ballot contradicts the logic of the debating parliament and majoritarian democracy (Steffani 1991). The procedure for electing the chancellor is designed in such a way that the will of the parliamentary majority is the deciding factor and, at the same time, the government system continues to function if no such majority can be found (Art. 63 GG). Initially, the federal president proposes a person to the Bundestag, who is then elected with an absolute majority. If this does not materialise, the Bundestag has 14 days to elect a person nominated by at least a quarter of its members with an absolute majority as chancellor (Rule 4 GOBT). If this fails, a final round of voting takes place. If someone receives the absolute majority of the votes at this point, they are elected as chancellor; if there is a relative majority, it is within the discretion of the federal president to appoint this person as chancellor or to dissolve parliament. In the 24 chancellor elections that were held between 1949 and 2021, the necessary absolute majority was always achieved at the first ballot, even if the result was sometimes quite tight (Schindler 1999, pp. 1019–1024; Feldkamp 2022, section 6.1). This frictionless process is not the sole achievement of the Bundestag but a reflection of the coherent party system. In view of the increasing difficulties in forging government majorities, the procedure for chancellor elections might gain political significance, with the federal president playing a more active role (Chapter 10.4).

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The option for a parliamentary majority to remove the government is a constitutive feature of a parliamentary system (Chapter 9.1). As with the formation of the government, the focus of the Basic Law is on the chancellor who can only be dismissed if a successor is elected at the same time (Art. 67 GG). This constructive vote of no confidence has only occurred twice since 1949. When the Bundestag majority of the SPD-FDP government seemed threatened because of the Ostpolitik (politics of détente towards the Eastern Bloc) in 1972, the leader of the opposition, Rainer Barzel (CDU), brought a motion of no confidence against Chancellor Willy Brandt in 1972 that failed by a narrow margin. In 1982, Helmut Kohl (CDU) successfully used the vote of no confidence against Chancellor Helmut Schmidt (SPD), after the FDP had left the government coalition with the Social Democrats. The nature of the constructive vote of no confidence makes the removal of the head of government more difficult, but it can still not guarantee that he or she will remain in office. Therefore, every chancellor needs the long-term support of his or her party and the other government parties. If this is no longer there, the final option is the resignation of the chancellor, as happened in 1966 with Ludwig Erhard (CDU) and in 1974 with Willy Brandt (SPD). However, the chancellor can also put political pressure on the parliamentary majority to continue its support for the acting government. In this context, the vote of confidence plays a central role. Since 1949, it has been applied five times overall. According to Article 68 of the Basic Law, the chancellor may ask the Bundestag for a vote of confidence at any time. If he or she does not achieve a majority, the federal president can dissolve parliament at the request of the chancellor. Given the prospect of an early end to the legislative period, the chancellor may force the government parliamentary groups to maintain their support for his or her political line even if there are profound differences of opinion. The vote of confidence has been used twice for this purpose. In February 1982, Helmut Schmidt requested a vote of confidence because the cohesion of the social-liberal majority in the Bundestag seemed fragile due to the stationing of US cruise missiles (NATO Double-Track Decision). Schmidt was able to achieve a clear vote in his favour; nevertheless, his government coalition collapsed half a year later. In November 2001, Gerhard Schröder (SPD) requested a vote of confidence in connection with the decision about the deployment of the Federal Armed Forces to Afghanistan, which was very controversial within the SPD-Green coalition because it marked

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a watershed in German security and defence policy. The positive outcome of the vote enabled Schröder to keep his government majority “on track”. Remarkably, the vote of confidence has also been used three times in order to prompt premature Bundestag elections. When the stalemate in parliament continued after the vote of no confidence against Willy Brandt had failed by a narrow margin, Brandt requested a vote of confidence in September 1972 with the explicit intention of losing the vote in order to call early elections and establish a clear government majority afterwards. The vote of confidence did indeed fail formally, since most cabinet members abstained from voting in the Bundestag. Federal President Gustav Heinemann then ordered the dissolution of parliament, and Brandt’s SPD-FDP coalition was subsequently re-elected. However, this created a precedence for a specific usage of Article 68 of the Basic Law that was all but unproblematic. After his successful vote of no confidence, Chancellor Kohl confronted the Bundestag in January 1983 with his own vote of confidence in order to legitimise the new government coalition of CDU/CSU and FDP through a general election. This seemed more opportune, as the coalition parties could count on a clear majority in opinion polls. Therefore, the parliamentary groups of CDU/CSU and FDP for the most part abstained from the vote of confidence, and Federal President Karl Carstens dissolved the Bundestag prematurely. The Federal Constitutional Court, called upon after the fact, did approve Kohl’s procedural solution in this case but made it clear that the vote of confidence should not be instrumentalised by the government against the will of the opposition in order to set an opportune election date (Niclauß 2006). Nevertheless, the most recent use of Article 68 of the Basic Law had a similar motivation. In July 2005, Chancellor Schröder (SPD) requested a vote of confidence, arguing that a “legitimisation through elections” had become “indispensable” in view of the declining support for his reform policies (quoted in Grotz 2005, p. 473). Again, although the government majority did not seem in danger, an overwhelming part of the SPD parliamentary group abstained. Ultimately, Federal President Horst Köhler opened up the path for new elections, in which the SPD-Green coalition lost its majority. Legislation. Although the Bundestag acts as “legislator” (von Beyme 1997), it is difficult to define its exact role in the legislative process. First, the government and the parliamentary majority form one unit of action within the parliamentary system. Therefore, the agenda setting for most legislative bills can neither be assigned exclusively to the Bundestag nor to

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the federal government. Second, the Bundestag is embedded in a multilevel system where the states participate in federal policy-making, which limits the Bundestag’s legislative autonomy (Chapter 11.2). Likewise, the European Union, whose directives must be transposed by the member state parliaments into national law, has a limiting effect (Chapter 3.3). Third, interest group associations have multiple options for accessing the legislative process and seek to influence the agenda setting in their favour (Chapter 7.2). These factors manifest themselves in different forms throughout the three phases of the legislative process (Fig. 9.3). In the initiation phase, legislative bills may be introduced “by the Federal Government, by the Bundesrat or from the floor of the Bundestag” (Art. 76, para. 1 GG). Bills by the federal government or Bundesrat must be presented to the other body in advance to obtain an official response, while those introduced in the Bundestag go directly to parliamentary consultation (Art. 76, para. 2–3 GG). Within the Bundestag, all parliamentary groups and groupings including at least 5% of MPs may table bills (Rule 76, para. 1 GOBT). The constitutional rights to initiate legislation differ in terms of their frequency of use and their chances of success (for more detail, see Feldkamp 2022, section 10.1; Schindler 1999, section 11). The federal government has introduced up to two-thirds of all bills in most legislative periods since 1949; in terms of legislation passed by the Bundestag, the percentage is between 68 and 90%. This executive dominance corresponds to the logic of the parliamentary system: the government’s legislative agenda is usually elaborated in the federal ministries, which have the necessary administrative capacities. For symbolic or procedural reasons, some draft legislation developed by ministries may be tabled by government parliamentary groups. These bills only make up 5–15% of all draft bills, but they are overwhelmingly passed by the Bundestag. The opposite applies to draft legislation tabled by the parliamentary groups in opposition. The number of such bills may exceed the number of bills proposed by government parties, but they normally fail because they are not supported by a parliamentary majority. Government parliamentary groups only rarely seize on legislation proposed by the opposition, and if this happens, they usually propose it as their own project. Thus, the bills proposed by the parliamentary opposition only have marginal influence on actual legislation; they rather serve to draw public attention to their ideas on certain issues, which allows them to position themselves as a credible political alternative (Sebaldt 1992). In the early years of the federal

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republic, the Bundesrat used its right to initiate legislation very sparingly. Since the 1970s, the percentage of bills introduced by the Bundesrat has been between 7 and 17%, but only very few of them have been successful (Chapter 11.2). Thus, within the Bundestag, only the majority parliamentary groups participate substantially during the initiation phase. But even they have limited influence on the contents of the bills tabled by the government. Even though the main legislative agenda of the federal government is agreed by consensus in informal steering groups, such as the Coalition Committee, where the parliamentary group leaders also participate, the bills themselves are formulated in the federal ministries. More concretely, the responsible units in the federal ministries coordinate with the relevant state ministries and reach out to representatives of important interest associations. MPs are usually not involved in this process, just as they do not participate in the many commissions and expert panels established by the federal government for the preparation of important legislation (Chapter 10.2). The Bundestag is at the centre of the consultation phase. Draft bills usually go through three readings in the plenary; only international treaties are processed in two readings (Rule 78, para. 1 GOBT). After the first reading, the bill is sent to the responsible committee. Mostly, other committees are also involved in the consultation. As outlined above, detailed discussions and revisions of the bills take place in these committees. Amendment requests are decided by majority vote; opposition proposals are usually not incorporated in the proposed bill but are, at best, considered informally. The committee sessions also include hearings by interest associations (Chapter 7.2). The increasing tendency to hold public hearings gives the different positions visibility and enhances the transparency of parliamentary consultation. Moreover, the new Lobbying Register Act, which came into effect in 2022, compels most of these interest organisations to register with the Bundestag and to comply with the rules set out in a code of conduct (Chapter 7.2). Until January 2023, nearly 5,600 interest organisations and private stakeholders have been officially registered. The list, which is continuously updated, provides an insight into the diversity of organised interests on the federal level (www. lobbyregister.bundestag.de). At the second reading, the Bundestag plenary debates the bill sent back from the committee and decides on its recommendations and further amendments, which can also be made by individual MPs at this point

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(Rule 81 GOBT). In the third reading, the concluding debate and the final vote take place. Although this final reading is formally an independent step, it usually comes immediately after the second reading. If all parts of a draft bill are rejected at the second reading, no further consultation takes place (Rule 83 GOBT). With the third reading, the legislative process enters the decision phase. In general, bills proposed by the government are passed with a majority, while opposition bills are rejected. Until the early 1980s, most federal laws were passed unanimously or with a broad majority. In this era, the opposition obviously wanted to highlight its constructive role vis-à-vis the public, particularly if the legislation improved services for citizens (Ismayr 2012, p. 248). Since the Greens and other new parties have entered the Bundestag, the proportion of unanimous decisions has declined considerably. Only legislation based on international treaties or EU law still achieves broad majorities in the Bundestag. In certain rare cases, in which MPs are voting on controversial or ethically sensitive matters (e.g. abortion, assisted dying or organ transplantation), the parliamentary groups suspend the party discipline. The MPs then no longer vote according to party lines but truly are “responsible only to their conscience” (Art. 38, para. 1 GG). Even in the decision phase, the Bundestag is not entirely autonomous but shares its decision-making authority with the Bundesrat. Politically controversial legislation therefore only succeeds after further negotiations in the Mediation Committee, and with further amendments (Chapter 11.2). Only then can the law be issued and come into force, after being signed by the chancellor, the responsible minister and the federal president. Oversight of the government. The constant supervision of government is an essential characteristic of democratic rule. The intention is to ensure that the executive leaders do not abuse their power and that they implement their political programme in the best possible way. Oversight and scrutiny of government are extremely multifaceted. They may relate to the policy agenda, the appropriateness of the resource usage or the legal conformity of government actions (Mannewitz and Rudzio 2022, p. 236). They can focus on government members or the government agenda. It can take place simultaneously or in retrospect. Furthermore, government control is done by different political institutions, parties, associations, the media and civil society. In any case, the democratic public

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has the final oversight, since the voters decide if they want to trust the government the next time they go to the ballot box. In the German political system, the Bundestag is the most important oversight body over the federal government. However, the relevant tasks that fall to the majority and minority parliamentary groups are very different. The majority parliamentary groups can replace the chancellor at any time via a constructive vote of no confidence and thus have a powerful instrument of sanction. At the same time, their political fate is intertwined with that of the government. Therefore, they will usually defend the chancellor and the cabinet against criticism, since this can also affect the government parties themselves and impair their re-election chances. For the same reason, the majority parliamentary groups can also effectively correct the course of the government as soon as they feel that their electoral support is in serious danger (Hesse and Ellwein 2012, p. 377). One case in point was the election of the leader of the CDU/CSU parliamentary group in September 2018. In view of its stark decline in the opinion polls and the increasing dissatisfaction with the Merkel government, the CDU/CSU parliamentary group did not confirm the office holder Volker Kauder, favoured by Chancellor Merkel, but elected his opponent Ralph Brinkhaus. This parliamentary vote eventually forced Merkel’s resignation from the CDU leadership and heralded the final phase of her tenure as chancellor. The opposition parliamentary groups have no immediate means of sanctioning the federal government, as long as the Bundestag majority supports it. They fulfil their oversight function mostly by publicly exposing the weaknesses of the government in order to improve their own chances among the voters. The Bundestag provides various instruments of scrutiny for this purpose that can be triggered by a parliamentary group or by at least 5% of its members. These instruments, which can be understood as classic minority rights, are the following: . MPs can request a written statement from the government about an issue using major interpellations (Große Anfragen; Rules 100– 103 GOBT). After receiving the answer, a parliamentary group can also force a plenary debate, which is why a major interpellation is seen as the most significant means of obtaining information and exercising oversight in the Bundestag’s daily business (Ismayr 2012, p. 320). Since the late 1990s, the number of major interpellations

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has declined overall, a trend caused by the more targeted use of this instrument rather than by its devaluation (Carstensen 2018). . Minor interpellations (Kleine Anfragen) will only be answered in writing by the federal government (Rule 104 GOBT). The number of these is significantly higher but their public impact is more limited (Hünermund 2018). . Additionally, the MPs have various options for directing individual questions to the government (Rule 105 GOBT). They are submitted in advance to the parliamentary secretariat and either answered in writing or during question time, which takes place once per week while the Bundestag is in session. Furthermore, in every session week, one hour is scheduled for government question time (Regierungsbefragung ), where cabinet members must respond to direct questions from the MPs. In 2018, it was agreed that the chancellor must answer questions in this format three times per year. Individual questions are the most frequently utilised form among all the rights of government scrutiny in the Bundestag (Feldkamp 2022, section 11.4). Although such questions can be asked directly by the MPs, they are usually assessed and coordinated by the parliamentary groups beforehand in order to produce the best possible effect. . As already mentioned, a quarter of the MPs may force the establishment of an inquiry committee, which deals with the investigation of grievances in government and in the federal administration (Art. 44 GG). The usual triggers are political scandals that motivate the opposition to establish such a committee. The effectiveness of inquiry committees must be assessed in a nuanced manner. As they are used by the opposition as “fighting instruments” to raise its political profile (Ismayr 2018, p. 26), which then causes the majority parliamentary group to stand behind its government, an “objective” resolution of the case is almost impossible. At the same time, such investigations provide an opportunity to launch reform proposals that may be included in the committee’s report and be considered during further government work. All instruments of scrutiny used by the parliamentary opposition rely on public attention created by the media (Chapter 8.2). An instrument deployed once at the right time may therefore have more impact than one

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deployed frequently. The success of scrutiny can also not be solely determined based on the immediate government response. Indirect effects may be even more important. The better the opposition carries out its watchdog function, the more the government comes under pressure to exercise anticipatory self-scrutiny. In cases of obvious undesirable developments or scandals, the chancellor will correct her or his agenda as quickly as possible or reshuffle the cabinet before the opposition can publicly take advantage of the situation. In addition to these political instruments, the opposition has a legal option of scrutiny at its disposal. A quarter of Bundestag members can make an application for the abstract judicial review of statutes (abstrake Normenkontrolle) before the Federal Constitutional Court that then has to decide whether a law passed by the government majority is compatible with the Basic Law (Chapter 12.1). For the petitioners to be successful, a law must contain constitutionally controversial passages. Since that is not very often the case, this instrument is deployed quite rarely. However, the few cases where it was used were politically significant laws, some of which were struck down in parts or in their entirety by the Federal Constitutional Court (Kneip 2009, pp. 213–214). Finally, the Bundestag has oversight tasks in some policy areas, carried out with the support of specific institutions. The Budget Committee occupies a central position in budgetary and finance policy, since it examines all bills with a significant impact on finance and submits proposals for the coverage of predictable revenue losses or increased expenditures to the Bundestag (Rule 96 GOBT). Due to this task, it does not so much have an oppositional stance towards the government overall but rather forms an alliance with the Ministry of Finance in dealing with the budgetary requests of the other ministries and parliamentary committees. The Federal Court of Audit (Bundesrechnungshof , BRH) plays an important role in budget oversight. Its mentioning in Article 114 of the Basic Law safeguards its institutional existence and the “judicial independence” of its members. In terms of administrative law, the BRH is an administrative agency within the executive. Because its constitutional task is to scrutinise “whether public finances have been properly and efficiently administered by the federation” (Art. 114, para. 2 GG), the results of its activities are of particular interest to the Bundestag and especially to the opposition group in the Bundestag. The members of the BRH take action at their own discretion and may carry out cost-effectiveness audits and performance assessments. The results of its activities are presented

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in public annual reports. In addition, it publishes special reports on issues with a budgetary impact, such as illegal employment or tax subsidies. Much of what the BRH does is retrospective financial scrutiny and therefore comes “too late” for amendments to the current budget. Nevertheless, its complaints can have a preventative effect, particularly if the federal authorities affected by them have to justify themselves in front of the relevant Bundestag committee (Wittrock 1982, pp. 214–215). Finally, an oversight authority of a very special kind exists in security and defence policy: the Parliamentary Commissioner for the Armed Forces (Wehrbeauftragter). This is an office that was established in 1985 based on the Swedish office of ombudsman and is also enshrined in the constitution (Art. 45b GG). The commissioner is elected by the Bundestag for a five-year term and his or her task is to support parliamentary oversight over the armed forces. In order to achieve this, the commissioner leads an office with around 60 staff members affiliated with the Bundestag administration. His or her main task is to assess queries and processes that point to an infringement of the fundamental rights of soldiers or the principles of military leadership and civic education within the armed forces (Innere Führung ). The commissioner submits annual reports to the Bundestag, supplemented by issue-based individual reports. Representation and communication. Due to its direct election by the citizens, the Bundestag is the centre of representative democracy. Its representative function reaches far beyond the periodic re-allocation of parliamentary seats. Its task is to represent all citizens throughout the legislative term by taking up the essential political issues in society and providing appropriate and effective solutions within the framework of its legislative power. However, this aspiration is difficult to achieve because there are different ideas about how the quality of representation should be defined and measured. One possible criterion is the actual representation of diverse social groups in proportion to their societal size (descriptive representation; Pitkin 1967). As Table 9.1 illustrates, the youngest and oldest age cohorts—the under-35s and the over-65s—are strongly underrepresented in the German Bundestag. The same applies to female MPs. The proportion of women has significantly increased since 1949 but is still far from reflecting the proportion of women in the overall population. It reached its peak during the 18th Bundestag period (2013–2017) when about 37% of the MPs were women. Currently, around 35% are female.

4 44 46 7 7

(25) (33) (29) (14) (58)

4 34 54 9 8

(29) (25) (29) (17) (55)

3 57 39 2 9

(32) (27) (20) (20) (53)

Term 9 (1980–1983) 7 35 56 2 31

(29) (28) (24) (19) (52)

Term 14 (1998–2002) 10 39 47 5 33

(24) (28) (23) (24) (51)

Term 17 (2009–2013) 8 38 51 3 37

(24) (25) (26) (25) (51)

Term 18 (2013–2017)

9 41 45 6 31

(25) (24) (28) (23) (52)

Term 19 (2017–2021)

15 39 41 5 35

(23) (19) (29) (29) (51)

Term 20 (since 2021)

Note a All figures in percent; population figures in parentheses; dates of the first parliamentary term of 1950. b Basic totals for distribution by age group in all parliamentary terms refer to registered voters, i.e. in 1950 and 1961 from the age of 21, from 1980 onwards from the age of 18 Source Feldkamp (2022, ch. 3); Schindler (1999, ch. 3); Federal Office of Statistics and Federal Returning Officer

Under 35b 35 to 49 50 to 64 65 and over Women

Term 4 (1961–1965)

Socio-demographic structure of the German Bundestag (in percent)

Parliamentary Term 1a (1949–1953) term

Table 9.1

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Moreover, people with lower educational qualifications are barely represented, since 86% of MPs have a university degree. Thus, the Bundestag has become “almost entirely a parliament of academics” (Schäfer 2013, p. 553). In terms of professional occupations, the MPs also diverge significantly from the relevant distribution in society. More concretely, the self-employed and civil servants are overrepresented, while blue-colour workers, pensioners and the unemployed are underrepresented (Kintz and Cordes 2019). The significance of the social composition of the Bundestag for its quality of representation is controversial. On the one hand, no democratic parliament can perfectly reflect all societal groups, since “socially tailored” representative structures are incompatible with equal access to candidacy and free voting. Moreover, it is not necessarily true that only those MPs belonging to a certain group will advocate for the interests of that group. In a parliamentary democracy, the political parties are the entities advocating for specific group concerns; they thereby carry out their substantial representation (Pitkin 1967). For instance, the Left and the SPD claim to represent the socially disadvantaged, although the majority of their MPs come from higher strata of society. On the other hand, it could be argued that disadvantaged group perspectives—such as those of women—will gain more impact when more members of this group are present in parliament (Mansbridge 1999). Moreover, the desire of certain groups to be represented by “one of us” should not be underestimated. The feeling of being represented can also have a positive effect on satisfaction with democracy (Deiss-Helbig 2013). Regardless of how exactly representative quality is measured, it is necessary to have communication channels between parliament and the citizens that enable the MPs to identify the most important societal problems and conversely allow citizens to reconstruct the intra-parliamentary will formation and decision-making. In this regard, the Bundestag is struggling with three structural problems resulting from the institutional characteristics of the parliamentary system: . Because government and opposition groups face each other on opposite sides, the Bundestag may rarely appear as one united institution and therefore may only have limited public impact. Commemorations and celebrations are one important exception, as they show the symbolic unity of parliament.

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. Since most legislative initiatives come from the executive, the Bundestag may lose out to the federal government and its parliamentary groups in the competition for media attention. If reform commissions established by the government develop political agendas, the communication asymmetry at the expense of parliament may be further enhanced. . Because the essential legislative work takes place in the parliamentary committees, media images of an empty Bundestag may convey the impression that MPs are insufficiently dedicated to carrying out their tasks. Plenary sessions in which the speakers articulate diverse opinions and positions are usually described as “stellar moments of parliament” and are therefore more important than ever (Becker 2019). These sessions may refer to normatively controversial issues, where parliamentary group discipline is often suspended, or the federal budget, where the opposition is severely critical of the government in the debate and attempts to draw attention to its political alternatives. In view of its public image, the Bundestag is also facing new challenges. On the one hand, intra-parliamentary communication has changed substantially since the right-wing populist AfD entered the Bundestag. What is problematic is not so much the increasing acerbity of the debates but the fact that the AfD parliamentary group is using polarisation, scandalisation and emotionalisation as tools to discredit the “old parties” collectively and to delegitimise pluralist democracy (Ruhose 2019, p. 11). The efforts by other parliamentary groups to expose this populist communication strategy have only had limited success so far. On the other hand, the Bundestag has to adapt to the ongoing digitalisation of the public sphere. Social media, in particular, offer the opportunity to make contact with the citizens faster and more directly and thus improve the quality of representation (Schwanholz and Busch 2016, p. 20; Chapter 8.2). Yet, there is a risk linked to reducing and simplifying political communication via social media, namely that it makes transparency and the acceptance of parliamentary politics more difficult (Schmidt-Jortzig 2018, p. 793). The online activities of the Bundestag are still largely oriented towards providing information. Its online presence includes the documentation and information system for parliamentary processes, the Bundestag app, a video library and the information service “heute im bundestag ” (today in the Bundestag) (Strasser and Sobolewski

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2018, pp. 164–165). Only individual MPs and parliamentary groups conduct interactive online communication; here, the AfD clearly has the edge over the other parties.

9.4 The Bundestag in the European Multi-Level System In the course of European integration, numerous national legislative competences were transferred to the European Union (Chapter 4.1). This has substantially changed the role and function of the Bundestag in the European multi-level system. The exact proportion of federal laws that originate from EU legislation is contested (Beichelt 2015, pp. 296–297; Töller 2010). The numbers vary according to whether only the implementation of EU directives is included or if further ideas originating from EU politics are also taken into account. The indirect repercussions of Europeanisation are particularly difficult to quantify—for example, it is hard to determine whether a federal regulation in Germany originates from informal agreements by the EU member states or whether it anticipates predictable decisions on the supranational level. Moreover, a German federal law may be affected in its entirety or only in parts by EU law. Last but not least, the Europeanisation of legislation varies across and within policy areas. In 1988, then president of the European Commission Jacques Delors predicted that 80% of commercial law would originate from the EU by the end of the 1990s—an assessment that has proved to be “relatively accurate” (Sturm and Pehle 2012, p. 26). Other areas like the environment and agriculture are also overwhelmingly determined by EU legislation. Even if less Europeanised policy fields, such as education and research, are included, and if Europeanisation is defined more narrowly, the overall average of “EU affected” legislation in the Bundestag between 2002 and 2005 adds up to around 40% (Töller 2008). This share has probably increased since then. Overall, Europeanisation has significantly weakened the legislative power of national parliaments. If the Bundestag wants to maintain its central position in the German political system without reversing supranational integration, this can only be achieved by strengthening parliamentary participation and oversight. Indeed, there have been several reforms since the 1950s that have led to a significant upgrade of the Bundestag’s position in EU policy-making (Töller 2004, p. 29).

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At the start, European integration was considered a part of foreign policy, which was essentially the business of the federal government. The participation of the Bundestag in setting EU legislation was originally regulated by the Act ratifying the Treaties establishing the European Economic Community (EEC), the European Coal and Steel Community (ECSC) and the European Atomic Energy Community (EURATOM) of 1957. Accordingly, the federal government had to provide ongoing information to the Bundestag and the Bundesrat on developments in the Council of the EEC and EURATOM. This information was supposed to be provided before the Council made its decisions “if [thereby] domestic German laws become necessary or law is created that is directly applicable in the Federal Republic of Germany” (Art. 2). But this non-mandatory provision did not prove especially effective, since the “committees and the plenary of the Bundestag often debated EC provisions that the Council in Brussels had already passed in the form of directives and regulations” (Sturm and Pehle 2012, p. 74). The adoption of the Single European Act (1985) did not immediately change the marginal position of parliament. In contrast to the Bundesrat, the Bundestag seemed to show little inclination to fight for more co-determination rights in EU policy-making (Chapter 11.3). One explanation for this reticence is the functional logic of the parliamentary system. The Bundestag majority had no interest in “challenging” the European policy positions of the federal government that they supported—particularly since there was a broad consensus on European integration among the parliamentary parties. With the revision of Article 23 of the Basic Law, which took place after the ratification of the Treaty of Maastricht, the Bundestag also received substantial competences of co-determination in EU affairs. Since then, it has had to approve any reform of the European treaties or “comparable regulations that amend or supplement [the] Basic Law” by a two-thirds majority (Art. 23, para. 1 GG). Moreover, the federal government must take the position of the Bundestag during the negotiations about EU legislative acts into account (Art. 23, para. 3 GG). At first glance, the Bundestag hence seems to be in a worse position than the Bundesrat, whose statements must be “substantially” taken into account (Art. 23, para. 3 GG). However, the Act on Cooperation between the Federal Government and the German Bundestag in Matters concerning the European Union makes it very clear that the federal government must base its negotiations on the EU level on Bundestag positions (Deutscher Bundestag 2017, pp. 110–111).

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The Treaty of Lisbon (2009) expanded the competences of the Bundestag in EU affairs, as it provides member state parliaments with enhanced rights of scrutiny if the principle of subsidiarity is concerned (Art. 5 TEU). Just like the Bundesrat, the Bundestag now has powers to immediately respond to supranational legislation via an “early warning mechanism” (Art. 12 TEU and Protocol No. 1 and 2). Specifically, it can make a reasoned opinion within eight weeks on draft legislative acts by the EU Commission regarding infringements of the subsidiarity principle. If such an opinion is supported by at least one third of the member state parliaments, the Commission must review the proposal (“yellow card”). If the opinion is shared by at least half of the member state parliaments (“orange card”), the Council of Ministers and the European Parliament need to decide how to proceed with the draft legislative act. Moreover, the Bundestag can bring a case to the European Court of Justice if a legislative act by the EU infringes on the subsidiarity principle (Protocol No. 2 TEU and Art. 263 TFEU). Such a complaint must be supported by at least a quarter of Bundestag members (Art. 23, para. 1a GG). As a consequence of the Lisbon ruling of the Federal Constitutional Court of 2009, a Responsibility for Integration Act was passed, which “regulates the participation of the Bundestag in special projects on EU level that are subject to an elevated responsibility for integration” (Strasser and Sobolewski 2018, p. 78). At the same time, its rights of scrutiny and participation were more precisely defined in the Act on Cooperation between the Federal Government and the German Bundestag in Matters concerning the European Union (Schäfer and Schulz 2013). Finally, as a result of the European state debt crisis of 2009, parliamentary budgetary rights were expanded and more clearly defined. Since then, fundamental decisions within the framework of the European Stability Mechanism (ESM) that have an impact on the budgetary responsibility of the Bundestag must be made by a plenary Bundestag session (Section 4 ESMFinG). In all other matters concerning the ESM that affect the budgetary responsibility of the Bundestag, the budgetary committee oversees “the preparation and implementation of the agreements on stability assistance” (Section 5 ESMFinG). In parallel to the extension of its participation and oversight rights, the Bundestag has adapted its internal organisation in line with the demands of Europeanisation. This was a sluggish process during the first decades. Originally, the parliaments in the European multi-level system were closely entwined as the European Parliament (EP) was

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composed of members of the national parliaments (Chapter 3.2). In order to counteract the personal de-coupling resulting from the EP’s direct election from 1979 onwards, a Europe Commission was established in 1983, consisting of eleven MPs from the Bundestag and the EP respectively. However, it stayed very much in the shadows and was succeeded in 1987 by the Bundestag Subcommittee for EC Affairs, attached to the Committee for Foreign Affairs. However, it suffered due to the “tensions between the competences of the Committee for Foreign Affairs and the (ultimately domestic policy) tasks” that it had to execute (Töller 2004, p. 37). The EC Committee, established in 1991, did not fare much better as it did “not once [receive] the full responsibility for a decision-relevant proposal” (Töller 2004, p. 37). Since 1992, the Basic Law has required the existence of a Committee on European Union Affairs (Europaausschuss; Art. 45 GG), which may make binding decisions in place of the Bundestag plenary. Nevertheless, the Bundestag has rarely made use of this provision (Scholz 2004, p. 3). Instead, EU draft legislation is mostly discussed in the standing expert committees. For example, the Budget Committee took the lead in the parliamentary oversight of the euro currency rescue policy (Beichelt 2015, p. 323). After all, there is broad agreement that specific committees do not necessarily enhance the position of national parliaments in EU policymaking. It is much more important for the Bundestag to effectively process the over 25,000 EU-related documents that reach it every year (Deutscher Bundestag 2013). The systematic assessment of this large amount of information now starts with the liaison office in Brussels, established in 2007 (Beichelt 2015, p. 328). In addition, a sub-department for Europe (Unterabteilung Europa) was created in the Bundestag administration and its staff numbers have been increased several times. In coordination with the parliamentary groups, it implements a “prioritisation procedure” for the EU documents it receives, so that the Bundestag can concentrate on those draft legislative acts that are particularly significant (Ismayr 2018, p. 30). Overall, the Bundestag has been playing a more active role in EU policy-making in recent times (Calliess and Beichelt 2015, pp. 399–400). The federal government has also typically sought to achieve “a ‘watertight’ agreement, at least with the parliamentary majority, as early as possible, when relevant decisions are due in Brussels” (Sturm and Pehle 2012, p. 83). At the same time, the power of parliament remains limited

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in EU affairs because the majority of MPs usually have no interest in “putting restrictions on the government they support, which can only detract from their ability to negotiate in the Brussels institutions” (Sturm and Pehle 2012, p. 83).

9.5 Conclusion: Seat of Democratic Sovereignty or Marginalised Institution? The Bundestag is the “most important political arena in the country, where the strands of majoritarian and consensus democracy of the German party-federal state come together” (Decker 2011, p. 73). On the one hand, the Bundestag forms the centre of a majoritarian parliamentary democracy. The procedures enshrined in the Basic Law for the appointment and dismissal of the chancellor require a vote of no confidence by the majority of MPs. This implies that the federal government needs reliable support in the Bundestag (Chapter 10.2). Given stable parliamentary majorities, the government sets the legislative agenda (executive dominance). The plenary debates are determined by the political confrontation between the government majority and opposition minority (debating parliament ). Moreover, the efficiency of parliamentary decision-making is enhanced by the strong position of the parliamentary groups. On the other hand, the Bundestag is embedded in the setting of checks and balances (consensus democracy). The most visible institution in this regard is the Mediation Committee, which serves to find compromises with the Bundesrat in the legislative process (Chapter 11.2). Moreover, the Federal Constitutional Court (Chapter 12.1) and EU legislation (Chapter 3.3) limit the political discretion of the government majority. The internal structure of the Bundestag also exhibits elements of consensus democracy, as the cooperative involvement of the opposition parliamentary groups in the committees shows (working parliament ). In view of these balanced structures, the Bundestag faces diverse expectations that can only be reconciled up to a certain point. Therefore, it is not surprising that the Bundestag has had a mixed performance regarding the four key functions of democratic parliaments. The fewest problems have occurred with the appointment and removal of the chancellor. The only cause for criticism has been the reiterated dissolution of the Bundestag via a “fake” vote of confidence. In terms of its legislative function, the overall picture is positive as well. Most government bills

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are passed in parliament without any blocking. However, the Bundestag majority generally has to make some concessions to the Bundesrat, where the parliamentary opposition frequently has a powerful veto position. Moreover, a significant proportion of federal legislation is predetermined by EU law, which limits the legislative autonomy of parliament. The Bundestag struggles a little bit more when it comes to its oversight function. This is partly due to the logic of parliamentarism, where government scrutiny is the major task of the parliamentary opposition, which only has limited tools at its disposal. At the same time, there is a structural capacity gap between the parliamentary administration and the ministerial civil service. Therefore, the Bundestag is not always successful in monitoring the flood of proposals from the federal government and the European Union in efficient and effective ways. Deficits are most apparent in its representative and communication function. The social composition of MPs diverges considerably from the population average in terms of age, sex, education and occupation; speeches in the Bundestag usually attract little attention in the media; and a half-empty plenary at debates and votes often creates discontent and a lack of public understanding. However, blanket criticism of a supposedly “invisible parliament” (Hierlemann and Sieberer 2014, p. 11) is not called for since MPs make essential contributions to the functioning of representative democracy by attending constituency events, sessions of their parliamentary groups, working circles and committee meetings. Nevertheless, it remains a constant challenge to convey the image of the Bundestag as the core of representative democracy in the public and thus enhance its societal acceptance. Against this background, many different ideas about parliamentary reform that aim to improve the transparency of intra-parliamentary will formation and decision-making have been debated. This includes the election of the chancellor by public roll call rather than by secret ballot, which would show the affiliations of the individual MPs to the government and opposition more clearly (Decker 2011; Steffani 1979). The demand to conduct committee sessions in public (Steffani 1979) results from similar considerations. Parliamentary practice seems to be developing in this direction in some policy areas but by no means in all of them. Finally, more media-compatible communication formats might enhance the Bundestag’s public image. The government question time, at which the chancellor must answer questions from the parliament, also belongs to this context. Particularly in EU policy-making, where parliamentary

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powers are severely limited, it is all the more important that the Bundestag demands accountability from the federal government in plenary debates that attract public attention. In so doing, it can fulfil its “responsibility for integration” (Sturm and Pehle 2012, p. 83). Furthermore, there are numerous reform proposals to optimise other parliamentary functions (for more details, see Ismayr 2012, pp. 451–467). For instance, there are demands to increase the proportion of female MPs by introducing quotas in the electoral and party laws, thus improving the descriptive representation of parliament. Others have advocated for extending the legislative term to five years in order to make legislative activities more effective between electoral cycles (Hesse and Ellwein 2012, pp. 372– 373; dpa 2022). Finally, there have been repeated calls to expand the Bundestag’s administrative capacity so that it can fulfil its oversight tasks more appropriately. However innovative and far-reaching individual reform proposals may be, what the Bundestag primarily needs is the constant, proactive engagement of MPs, political parties, the media and civil society. Only this can ensure that it really occupies the key position that it has in democratic theory.

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CHAPTER 10

The Federal Government and the Federal President: The Dual Executive

The “executive” generally means the state’s power apparatus that is charged with the implementation of legislative decisions (King 1975). However, a democratically elected executive not only enforces the policies of the legislature but also participates in shaping them. In Germany, the most important executive functions are carried out by the federal government under the leadership of the chancellor. Since the chancellor possesses significant powers, the Federal Republic of Germany is often called a “chancellor democracy” (Niclauß 2015). At the same time, the chancellor is embedded in a complex network of checks and balances. Does she actually determine the “general guidelines of policy” (Art. 65 GG) in the sense of a majoritarian democracy? Or is she an intermediator and integrator of diverse interests in the sense of a consensus democracy? The federal president is the German head of state and also belongs to the executive. The presidential office is predominantly representative and has limited institutional powers. Nevertheless, several observers contend that federal presidents so far have played a significant role in the German political system (Korte 2019). Is the federal president a neutral authority that merely ensures the conformity of policy-making with the constitution or is it a political office? Against this background, Section 10.1 will illustrate the institutional powers and the organisational structure of the federal government. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 F. Grotz and W. Schroeder, The Political System of Germany, New Perspectives in German Political Studies, https://doi.org/10.1007/978-3-031-32480-2_10

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Section 10.2 will highlight the patterns of federal governance between the poles of chancellor democracy and coalition management. Section 10.3 will describe the position of the federal government in the European multi-level system. Section 10.4 will focus on the federal president, reflecting on the institutional foundations and the political reality of the office. Section 10.5 will answer the questions set out here and discuss some reform proposals to improve the performance of the dual executive.

10.1 The Institutional Powers and Organisational Structure of the Federal Government The executive is the oldest of the three branches of state power (Benz 2008; King 1975, pp. 180–182). It includes the institutions that have been responsible for leading and guiding the body politic since the foundation of the modern state, i.e. government and administration. Parliaments, as the central law-making institutions (legislature), and courts, as independent bodies of justice (judiciary), were created later in order to limit the rule of the crown. In a liberal democracy, the government is still the head of the executive and performs three main functions: . Political leadership: The government sets the political agenda and shapes draft legislation; . Administrative leadership: It oversees the implementation of laws by the public administration and ensures its performance through staffrelated and organisational measures; and . External representation: It represents the state on the international level to assert its interests there. A democratic government is not just scrutinised by parliament and the courts but also legitimised through free and fair elections. Therefore, it is “the ‘natural’ addressee of demands for solutions to public problems” (Helms 2005, p. 11). A wide range of government institutions exist in representative democracies. The Federal Republic of Germany is modelled after the British type of parliamentary system, which provides for a dual executive (Chapter 9.1). The prime minister and the cabinet stand on one side and carry out government business; they are therefore the “political executive” (Laski 1925, pp. 340–356). In Germany, the political executive

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consists of the federal government, composed of the federal chancellor and the federal ministers (Art. 62 GG).1 On the other hand, there is the head of state, who represents the nation domestically and internationally but has no government authority of his or her own. This office is also called a “constitutional executive” (Laski 1925, pp. 340–356). In the British hereditary monarchy, the constitutional executive is the king or queen. In Germany, this role is fulfilled by the federal president, who is elected for a fixed term of office (Sect. 10.4). The procedures for the formation and termination of the federal government are regulated in the Basic Law. Following the functional logic of the parliamentary system, a government’s tenure depends on the support of the Bundestag majority (Chapter 9.1). At the same time, the chancellor plays a central role in the formation and dissolution of the federal government, which is manifested in the following constitutional provisions (Busse and Hofmann 2022, pp. 50–51; for more details, see Chapter 9.2): . The chancellor is the only member of government elected by the Bundestag (Art. 63 GG). This strengthens her position relative to the federal president. This is a deliberate contrast to the Weimar constitution, under which the state president could keep the chancellor in office, even without the approval of parliament, and therefore dominated the formation of government (Art. 54 WRV; Helms 2005, p. 60). . The federal ministers are appointed and dismissed by the federal president upon the proposal of the chancellor (Art. 64 GG). Neither the head of state nor parliament has a formal influence on cabinet composition. Although the Bundestag can pass a motion of censure against individual ministers, it cannot remove them from office. . The chancellor can only be removed prematurely if the Bundestag simultaneously elects a successor by an absolute majority (Art. 67 GG). This constructive vote of no confidence can stabilise the 1 From the Middle Ages onward, “chancellor” was a common title for the highest official of an authority in the Holy Roman Empire of the German Nation. The term was later used in Prussia, Austria and other German states to refer to the head of state administration (“chancellor of the court” or “chancellor of the state”). Consistent with this tradition, both the Constitution of the German Empire of 1871 and the Weimar constitution of 1919 named the head of government “chancellor” (Reichskanzler). The Parliamentary Council chose “Federal Chancellor” (Bundeskanzler), an office title first used in the constitution of the North German Federation (1867–1871).

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government in the face of a fragmented parliament. This gives the chancellor a good chance of staying in office, even if her government does not have a majority among the members of parliament. . The chancellor can also request a Bundestag vote of confidence and thus impose discipline on a shaky parliamentary majority, since the rejection of the chancellor in the vote of confidence may lead to the dissolution of parliament (Art. 68 GG). In practice, the chancellor usually combines a specific draft bill with a vote of confidence (Oberreuter 2013, pp. 219–221). This procedure has also been used to trigger early federal elections (Chapter 9.2). Nevertheless, the chancellor cannot make use of the vote of confidence for parliamentary dissolution on a whim but needs the consent of the Bundestag majority and the federal president. The federal government has important competences within the legislative process to shape public policies (Chapter 9.2). In particular, it can bring legislative initiatives to the Bundestag and thus sets the policy agenda as long as it has the parliamentary majority behind it. The right to initiate legislation has been used extensively by all federal governments. Government bills must first be submitted to the Bundesrat, which issues an official position; vice versa, the federal government may present its views on legislative initiatives by the Bundesrat (Art. 76 GG). This mutual screening of bills aims to ensure a cooperative exchange of federal and state executives at an early stage of the legislative process (Chapter 4.2). Members of the federal government are also included in various Bundestag panels, such as the Council of Elders, the standing committees and even the Mediation Committee. Although federal ministers are not entitled to vote in Bundestag committees, they can still influence will formation and decision-making there, since the majority of committee members belong to the government parliamentary groups and share the government’s political position. Vice versa, the Bundestag has multiple instruments for scrutinising the government, which are primarily utilised by the opposition minority and are therefore limited in their effectiveness (Chapter 9.3). The federal government usually presents itself as a unified body to other institutions and to the public, but internally, it is far from being a monolithic bloc. Intra-governmental decision-making takes place between the chancellor, the cabinet and the ministerial departments. This triangle of actors emerges from three principles laid down in Article 65 of the Basic

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Law and specified in the Rules of Procedure of the Federal Government (Geschäftsordnung der Bundesregierung; GOBReg) and the Joint Rules of Procedure of the Federal Ministries (Gemeinsame Geschäftsordnung der Bundesministerien; GGO)2 : . The chancellor principle: “The Federal Chancellor shall determine and be responsible for the general guidelines of policy” (Art. 65 GG). This means that the chancellor decides on the political course that the federal government shall take without having to obtain the approval of the cabinet or individual ministers. In this context, she can also declare certain issues a “decision for the boss” (Knoll 2010, p. 203). Moreover, the chancellor must be “informed about the measures and proposals that are of significance for the determination of the general guidelines of policy” (Sect. 3 GOBReg). As much as the chancellor’s power to determine the policy guidelines contributes to her elevated position, it does not necessarily result in a comprehensive leadership entitlement for two reasons. First, “general policy guidelines” is a vague legal term. The decisionmaking powers emerging from it cannot be specified constitutionally but only politically. Second, the chancellor principle only relates to the federal ministers and the federal cabinet but not to other federal institutions such as the Bundestag or Bundesrat (Helms 2005, p. 62). . The departmental principle: Within the general guidelines set by the chancellor, each federal minister “shall conduct the affairs of his department independently and on his own responsibility” (Art. 65 GG). Therefore, the chancellor cannot interfere with the internal affairs of a ministry (Mannewitz and Rudzio 2022, p. 258). The departmental principle becomes particularly apparent in cases where the Basic Law allocates specific tasks to certain cabinet members. For instance, the Minister of Defence is the commander-in-chief of the armed forces (Art. 65a GG). This power only passes to the chancellor upon the promulgation of a state of defence (Art. 115b GG). The Minister of Finance has veto powers or acts in place of the federal 2 While the GGO determines the mutual relationship of the federal ministries as well as their relationship to other institutions (BMI 2019), the GOBReg regulates the procedures within the federal cabinet (Krax 2010, p. 80). Both rules of procedure were passed in the 1950s by the federal government and have been amended several times since then.

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government in certain tax and budgetary matters (Art. 108, 112 and 114 GG). . The cabinet principle: The federal cabinet—defined as the collegium of chancellor and federal ministers—also has specific tasks. On the one hand, it serves as an internal clearing centre as it has to resolve differences of opinion between federal ministers (Art. 65 GG). On the other hand, all documents by the federal government sent to other federal institutions (e.g. draft legislation, directives, appeals to the Federal Constitutional Court according to Article 93, paragraph 1 of the Basic Law) need cabinet approval. In the cabinet, the chancellor and the individual ministers have equal votes, with a simple majority being sufficient to make a decision (Sect. 24, para. 2 GOBReg). However, the cabinet usually reaches a consensus before a formal vote is taken, because controversial issues are sorted out via inter-departmental coordination in advance (Section 10.2). The great importance of the cabinet’s image of unity is also evident in the fact that ministers are explicitly prohibited from “counteracting the opinion of the federal government” even if “they might be of a different opinion” (Sect. 28, para. 2 GOBReg). The Basic Law does not prioritise any one of the three principles over the others. Therefore, the extent to which the leadership of the chancellor, the position of a minister or the opinion of the cabinet prevails depends on the constellations of parties and personalities within the federal government (Busse and Hofmann 2022, p. 75; Section 10.2). In fulfilling their tasks, the chancellor and the cabinet are supported by the Federal Chancellery and the federal ministries (Fig. 10.1). They form the ministerial bureaucracy and help the government to perform its political leadership function (Schnapp and Willner 2013, p. 247). “This includes in particular strategic design and co-ordination of policy areas, realisation of political objectives, focal points and programmes, international co-operation, involvement in the legislative process and exercising management and supervisory functions over non-departmental public bodies within their respective remits” (Sect. 3, para. 1 GGO). The Federal Chancellery (Bundeskanzleramt ) forms the centre of the ministerial bureaucracy. It has two major tasks derived from the chancellor’s constitutional position. On the one hand, it functions as the core executive by supporting the chancellor in her leadership functions. For this purpose, it selects and summarises the multitude of information it

Staff: 2,301

Budget: €15.0 bn.

Budget: €8.8 bn.

Budget: €7.1 bn.

Staff: 7,231

Minister: Baerbock (Greens)

Foreign Affairs

Budget: €5.0 bn.

Staff: 226

Minister: Geywitz (SPD)

Housing

Budget: €0.9 bn.

Staff: 1,686

Minister: Buschmann (FDP)

Justice

Budget: €161.1 bn.

Staff: 1,392

Minister: Heil (SPD)

Employment

Budget: €50.4 bn.

Staff: 1,876

Minister: Pistorius (SPD)

Defence

Budget: €11.3 bn.

Staff: 2,321

Minister & ViceChancellor: Habeck (Greens)

Economy & Climate

Budget: €12.6 bn.

Staff: 851

Minister: Paus (Greens)

Family

Agriculture

Budget: €7.1 bn.

Staff: 1,093

Minister: Özdemir (Greens)

Budget: €64.4 bn.

Staff: 907

Minister: Lauterbach (SPD)

Health

Budget: €36.1 bn.

Staff: 1,550

Minister: Wissing (FDP)

Transport

Budget: €2.2 bn.

Staff: 1,300

Minister: Lemke (Greens)

Budget: €20.4 bn.

Staff: 1,409

Minister: StarkWatzinger (FDP)

Education & Environment Research

Migration/Refugees/Integration: AlabaliRadovan (SPD)

Culture/Media: Roth (Grüne)

Federal-State Relations: Ryglewski (SPD)

Budget: €12.3 bn.

Staff: 1,074

Minister: Schulze (SPD)

Development

Fig. 10.1 Organisational structure of the Scholz government (Source Authors’ compilation as of 20 January 2023)

Minister: Faeser (SPD)

Staff: 2,142

Interior

Minister: Lindner (FDP)

Finance

Federal Government (Cabinet)

East Germany: Schneider (SPD)

Ministers of State

Subordinate agency: BND

Staff: 750

Head of Federal Chancellery: Schmidt (SPD)

Federal Chancellor

Federal Chancellery

Government spokesperson: Hebestreit Staff: ~ 500

Olaf Scholz (SPD)

Federal Chancellor

Federal Press Office

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receives, prepares political proposals, assesses draft documents from the federal ministries and mediates in cases of inter-departmental conflicts (Busse and Hofmann 2022, pp. 75–77). On the other hand, the Federal Chancellery serves as the secretariat of the federal cabinet by submitting draft laws and directives of the federal government to the Bundestag and Bundesrat. Furthermore, the chancellery performs numerous coordination tasks—from making statements on draft legislation proposed by the Bundesrat to drawing up answers to parliamentary questions to preparing for Federal Constitutional Court cases, in which the federal government is involved. Last but not least, it answers several tens of thousands of letters from citizens every year (Busse and Hofmann 2022, pp. 77–84). In the early phases of the Federal Republic of Germany, the Chancellery was a relatively under-resourced institution with a “comparatively simple organisational structure” (Helms 2005, p. 88). Only when Chancellor Willy Brandt took office in 1969 was staffing expanded substantially—at that time, new divisions were created and a unit for policy planning was established. Since then, the Federal Chancellery has been an “effective coordination centre within the core executive” (Helms 2005, p. 91). Around 850 staff, recruited largely on rotation from the various federal ministries, are working there (Busse and Hofmann 2022, p. 135). The chancellery is divided into seven divisions, which are structured according to the portfolio allocation of the federal ministries with which they closely interact. At the helm is the head of the Federal Chancellery (Chef des Bundeskanzleramts, ChefBK ), who has the rank of a federal minister for special tasks and has a seat and vote in the cabinet. She usually acts in backstage of the political scene, as a “grey eminence” managing government business as an “extension” of the chancellor efficiently and smoothly (Knoll 2010, pp. 211–213). In this respect, the COVID-19 pandemic was an exceptional situation—at the time, Helge Braun (CDU), then head of the chancellery, had more frequent public appearances to explain the government’s crisis management. Originally, the Federal Chancellery did not have specific departmental tasks, apart from the oversight of the Federal Intelligence Service (Bundesnachrichtendienst, BND), whose establishment was a “sensitive matter” after the Second World War (Meinel 2019, p. 160). Since the late 1990s, there has been a growing tendency to keep politically significant issues that actually fall under the responsibility of the federal ministries inside the chancellery and therefore to make them a “decision for the boss” (Fleischer 2011). For this purpose, the chancellery has its own

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parliamentary state secretaries, titled “ministers of state”, who lend a voice and a face to these issues. At present, there are four ministers of state at the Federal Chancellery. They are responsible for federal–state relations, culture and media, migration, refugees and integration as well as East Germany (Fig. 10.1). Another central government unit is the Federal Press Office—the Presseund Informationsamt der Bundesregierung or Bundespresseamt (BPA). Originally founded as a division within the Federal Chancellery, it has been an independent body reporting directly to the chancellor since 1958. At present, the BPA employs around 530 staff members and has an annual budget of over e142m (BMF 2023; BT-Drs. 20/3100, p. 148). It is headed by a state secretary, who is also the spokesperson for the federal government. The BPA is both the “mouth” and the “ear” of the federal government (Niclauß 2015, pp. 46–47). It organises interactions with the “organs of public-opinion formation” (Busse and Hofmann 2022, pp. 130–131), explains current government policy in press conferences and engages in publicity via websites, social media channels and print publications. At the same time, it evaluates national and international news and commissions opinion polls about government performance. The federal ministries are the political-administrative “tools” of the federal government (Schnapp and Willner 2013, p. 247). They manage the “fundamental and particularly important matters, especially those relating to legislation” (Busse and Hofmann 2022, p. 85). Case-specific tasks are then carried out by subordinate authorities under the supervision of the ministry. For instance, the Federal Environmental Agency (Umweltbundesamt; UBA), which is subordinated to the Federal Environment Ministry, conducts research on air and soil protection, waste and water management and health-related issues of environmental protection. The Federal Environment Ministry draws on the information, documentation and expertise of the UBA when drafting legal provisions or assessing the environmental compatibility of related measures. The Robert KochInstitute (RKI) fulfils a similar function as a subordinate authority of the Federal Ministry of Health by providing support “in the prevention and combating of infectious diseases as well as in the analysis of long-term health trends in the population” (RKI 2016, p. 10). During the COVID19 pandemic, it also emerged as an important advisory body to the federal government. Overall, the federal administration does not have large numbers of staff, since the states are in charge of implementing the bulk of federal

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legislation (Chapter 3.2). Unlike the state ministries, the federal ministries are therefore first and foremost “legislative ministries ” (Hesse and Ellwein 2012, p. 417): they elaborate on draft laws, seeking to assert their departmental interests as well as the policy positions of the government parties. To achieve this, the ministry in charge involves other federal departments as well as the relevant state ministries and interest groups, including the local government associations (Busse and Hofmann 2022, pp. 99– 100; Chapter 14.4). When a legislative matter is particularly complicated, the federal ministries also consult external experts in order to develop appropriate solutions. Consultancy contracts of this kind have occasionally been criticised because of the high costs and dubious tendering procedures. However, there is no general “malfunctioning of governmental organisation” in this field (Döhler 2012, p. 204). The internal structure of federal ministries is largely similar. They are all headed by a federal minister, who is also part of the cabinet and is usually—according to the functional logic of the parliamentary system—a member of the Bundestag (Feldkamp 2023, section 6.8). The minister is supported by state secretaries. They coordinate the ministerial units and take the lead in the management of resources, staffing and policy implementation (BMVI 2019). Since the state secretaries also perform numerous political tasks in addition to their administrative leadership, they enjoy a particularly close relationship with the minister. Together with the heads of division, they ensure that administrative action is in line with the government’s political guidelines. State secretaries and division heads are therefore so-called political civil servants, who may be suspended by their superiors at any time (Sect. 54 BBG). Moreover, every federal minister also has two or three parliamentary state secretaries, who represent them at official appointments in the Bundestag, the Bundesrat and in the federal cabinet. In the Federal Foreign Office, they are called state ministers in order to express their elevated status on the international level. Parliamentary state secretaries are not civil servants but must be members of the Bundestag and are recruited from the government parliamentary groups. They are members of government but have no voting rights in the cabinet (Busse and Hofmann 2022, p. 93). The office of the parliamentary state secretary was introduced in 1969 following the British model and has been heatedly discussed from time to time (Groß and Bohnefeld 2010). On the one hand, it has been criticised as a relatively powerless position that exists mainly to increase the number of bargaining chips available in coalition

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negotiations (Hefty 2005, pp. 284–285). On the other hand, the parliamentary state secretaries are an important communication link between the government and parliament and form a recruitment pool for future ministers (Hefty 2005, p. 287). Below the leadership level, the federal ministries are structured vertically into divisions, subdivisions and sections, whereby one division consists of at least five sections (Sect. 8 GGO). Horizontally, the divisions are separated according to the task areas in the responsibility of the ministry. The section is the main operating unit because it is “the initial decision-making authority in all matters assigned to it within its area of competence” (Sect. 7, para. 1 GGO). One section takes the lead on every issue, while other units from the same and other ministries are included. If differences of opinion between and within the ministries emerge, the issue is always submitted to the respective superior units (Krax 2010, pp. 77–78). Apart from the ministerial bureaucracy, there are numerous advisory boards and councils to support the federal government with their expertise. Well-known examples include the National Regulatory Control Council (Nationaler Normenkontrollrat ), which assesses the administrative burdens and costs arising from draft legislation by the federal government, and the German Council of Economic Experts (Sachverständigenrat zur Begutachtung der gesamtwirtschaftlichen Entwicklung ), composed of five “economic wise men and women”, which assesses the performance of the German economy in its annual reports and makes relevant recommendations. Moreover, various federal commissioners and coordinators are in charge of lending visibility to certain issues. These can be state ministers or state secretaries but also senior civil servants, members of parliament or other persons who are usually appointed by the federal cabinet. Commissioners and coordinators are formally involved with all government proposals within their areas of responsibility and serve as additional points of contact for concerned citizens and for the public (Sect. 21 GGO; Busse and Hofmann 2022, pp. 90–91). Issues range from fighting antisemitism to railway transport to drug problems to Franco-German cooperation (BMI 2019). Finally, a particular feature of the ministerial organisation connected to German reunification deserves special attention. The Berlin-Bonn Act of 1994 stipulated that some federal ministries continued to have their main office and the majority of their staff in the old federal capital of Bonn, while all other ministries were equipped with a secondary office there as

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well. Repeated demands to transfer the complete ministerial bureaucracy to Berlin for reasons of efficiency have not been successful to date. The number of federal ministries is relatively open. The Basic Law only stipulates the existence of a Ministry of Finance, a Ministry of Justice and a Ministry of Defence (Busse and Hofmann 2022, p. 86). In addition, the chancellor must appoint a federal minister as his deputy (Art. 69, para. 1 GG). This vice-chancellor is usually nominated by the smaller coalition partner and fulfils certain leadership tasks in the absence of the chancellor, such as chairing the cabinet sessions. The vice-chancellor has no autonomous competences, no power to determine policy guidelines and no right to request a vote of confidence but cannot be deposed via a vote of no confidence either (Helms 2005, pp. 65–66). The portfolio structure of the federal government is regulated in an organisational decree by the chancellor. Since 1949, it has been subject to several larger and many smaller changes. Like in all Western democracies, several governmental portfolios mirror the “classical” tasks of a nationstate. In particular, the departments for order and security belong to this category: the ministries for the Interior, Foreign Affairs, Justice, Finance and Defence (Rudzio 2005, p. 257). Due to the limited sovereignty of the West German state, the Federal Foreign Office and the Federal Ministry of Defence were only established in 1951 and 1955, respectively (Helms 2005, p. 99). Further policy fields have come to prominence in the more recent history of the state and also received their own ministries in the federal republic, such as the ministries for Economic Affairs, Labour and Agriculture. Moreover, the first federal government formed specific departments in view of the consequences of the Second World War and technological developments, including the ministries for Displaced Persons, Refugees and War Victims, for Intra-German Relations and for Telecommunications. When these policy areas lost relevance, the respective ministries were dissolved or incorporated into others (Helms 2005, pp. 98–99). In the course of time, new departments were added as well. The Federal Ministry of the Environment was established in 1986 in response to the Chernobyl power plant disaster because the crisis management of the Federal Ministry of the Interior, previously responsible for these matters, was considered inadequate (Grotz 2009, p. 157). A similar process took place in 2001, when the political debate about food safety gained pace because of the BSE crisis, and the federal government of the time expanded the portfolio of the Ministry of Agriculture by adding “Consumer Protection”.

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Beyond the foundation and abolition of entire ministries, individual areas of responsibility have been moved between departments quite frequently (Sieberer 2015). Such minor changes usually resulted from the political priorities of the government parties. For instance, the federal government of Social Democrats (SPD) and Greens decided in 2002 to create a “super ministry” for economics and labour under SPD leadership, which served as the core department to enact the Hartz reforms on the labour market. It was again divided into two independent ministries when the subsequent grand coalition came into office in 2005. Similarly, the current federal government of SPD, Greens and Liberals (FDP) expanded the Ministry of Economic Affairs to include the responsibility for “Climate Action”, because the transformation towards a green economy has been a key issue of its progressive agenda. Generally, ministerial portfolios in parliamentary democracies vary greatly in size and significance (Druckman and Warwick 2005). The Scholz government, in office since December 2021, established 15 federal ministries (Grotz and Schroeder 2022; Fig. 10.1). Among its “political heavyweights” are the Ministry of Finance (BMF), the Ministry for Economic Affairs and Climate Action (BMWK), the Ministry of the Interior (BMI) and the Ministry of Foreign Affairs (AA). This category also includes the Federal Ministry for Labour and Social Affairs (BMAS), which has the largest budget by far, and the Ministry of Defence (BMVg), which has the largest number of staff (including the Federal Armed Forces). Furthermore, there are a few “medium weight” departments, such as Digital and Transport (BMDV), Environment, Nature Conservation, Nuclear Safety and Consumer Protection (BMUV), Health (BMG), Justice (BMJ) and Food and Agriculture (BMEL). Finally, there are the Ministries of Education and Research (BMBF), of Family Affairs, Senior Citizens, Women and Youth (BMFSFJ), for Economic Cooperation and Development (BMZ) and for Housing, Urban Development and Building (BMWSB). The departments in this latter group are generally considered less significant but can occasionally strengthen their position depending on the political agenda and personality of the respective minister.

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10.2 Governance Between Chancellor Democracy and Coalition Management Compared to other Western democracies, Germany has experienced a high degree of government stability. From 1949 until the end of 2022, only nine federal chancellors had been in office (Table 10.1). Italy saw 31 different prime ministers within the same period while the UK, the motherland of parliamentary democracy, had 18 (Döring and Manow 2019). The first federal chancellor, Konrad Adenauer, governed for 14 years (1949–1963) and was only exceeded in this respect by Helmut Kohl (1982–1998) and Angela Merkel (2005–2021). All three came from the Christian Democratic Union (CDU)—as did Ludwig Erhard (1963–1966) and Kurt Georg Kiesinger (1966–1969). Overall, the office of chancellor was occupied by the CDU for 52 years. During the other two decades, the federal government was led by the SPD—for eight years by Helmut Schmidt (1974–1982), seven by Gerhard Schröder (1998–2005) and five by Willy Brandt (1969–1974). Since December 2021, another SPD chancellor, Olaf Scholz, has held the position. Because there have been so few chancellors over such a long period and because the office is equipped with strong powers by the Basic Law, it seems quite obvious to call the Federal Republic of Germany a “chancellor democracy” (Niclauß 2015). At the same time, all federal governments since 1949 have been formed by party alliances (Table 10.1). These government coalitions are characterised by some distinctive features in international comparison (Kropp 2008). First, all federal governments have had the support of a parliamentary majority. The only cases in which this did not occur were in the final phases of the Erhardt (1966) and Schmidt (1982) governments, when the coalition formed between the respective chancellor’s party and a smaller partner (in both cases, the FDP) collapsed. In these two instances, the emerging minority cabinet was quickly succeeded by a new majority government under a different chancellor. Second, all government coalitions were comprised of the minimum number of parties needed for the absolute majority in the Bundestag (minimum winning coalition). Only Konrad Adenauer included additional smaller parties in his cabinets between 1953 and 1960, although they were not necessary for him to maintain a parliamentary majority (oversized coalition).3 Third, all federal 3 In 1960/1961, Adenauer briefly headed a single-party government after two ministers from the German Party (DP) crossed over to the CDU (Jesse 2017, p. 107).

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Table 10.1 Chancellors of the Federal Republic of Germany (1949–2022) Chancellor Time in office (Party) (years)

Federal cabinets/ government parties

Konrad Adenauer (CDU)

1949– 1963 (14)

Ludwig Erhard (CDU)

1963– 1966 (3)

Kurt Georg Kiesinger (CDU) Willy Brandt (SPD) Helmut Schmidt (SPD)

1966– 1969 (3)

Age Party chair

Political experience

Reason for termination

Yes

Mayor of Cologne

Resignation

No

Yes

Min (F)

Resignation

No

Yes

PM (S)

Voted out (regular election)

56

Yes

Yes

Min (F)

Resignation

56

No

No

Vote of no confidence

(I) CDU/CSU, 52 FDP (II) CDU/CSU, FDP (III) CDU/CSU, FDP (IV) CDU/CSU, FDP (V) CDU/CSU, FDP (I) SPD, Greens 54 (II) SPD, Greens

Yes

Yes

Min (S) Min (F) Chair PG (F) PM (S) Chair PG (F)

No

Yesa PM (S)

(I) CDU/CSU, 51 SPD (II) CDU/CSU, FDP (III) CDU/CSU, SPD (IV) CDU/CSU, SPD

Yes

Yesa Min (F) Chair PG (F)

Before

FC

(I) CDU/CSU, 73 FDP, DP (II) CDU/CSU, FDP (FVP), DP, GB/BHE (III) CDU/CSU, DP (IV) CDU/CSU, FDP (I) CDU/CSU, 66 FDP (II) CDU/CSU, FDP (I) CDU/CSU, 62 SPD

Yes

1969– 1974 (5) 1974– 1982 (8)

(I) SPD, FDP (II) SPD, FDP (I) SPD, FDP (II) SPD, FDP (III) SPD, FDP

Helmut Kohl (CDU)

1982– 1998 (16)

Gerhard Schröder (SPD) Angela Merkel (CDU)

1998– 2005 (7) 2005– 2021 (16)

Voted out (regular election)

Voted out (early election) No renewed candidacy

(continued)

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Table 10.1 (continued) Chancellor Time in (Party) office (years)

Federal cabinets/ government parties

Age Party chair

Olaf Scholz (SPD)

(I) SPD, Greens, FDP

63

2021–

Before

FC

No

No

Political experience

Reason for termination

Min (F) PM (S)

Notes Federal cabinets and government parties: cabinets formed after taking office or after federal elections; government parties listed in order of size. Party chair: before = party chair directly before taking office (Adenauer: party chair in the British Zone since 1946); FC = party chair as federal chancellor (a = premature resignation of the party chair). Political experience: most important offices held in government and parliament before becoming chancellor. F = previous office held on the federal level (Min = federal minister; Chair PG = chair of the Bundestag parliamentary group); S = previous office held in a state government (PM = state prime minister, Min = state minister) Source Authors’ compilation based on Schindler (1999, section 6) and Feldkamp (2014–2021, sect. 6)

governments from 1961 to 2021 consisted of two-party coalitions (when counting CDU and CSU as one). A “true” three-party coalition only reemerged in 2021 with the federal government composed of SPD, Greens and FDP. Altogether, only four different parties (CDU/CSU, SPD, FDP, Greens) have participated in federal governments since the early 1960s. Furthermore, it is quite common for one of the parties from the previous government to become part of the new one. Before German unification, the high continuity of government parties was mainly due to the FDP, which crossed over from the CDU/CSU after 1966 to ally with the SPD and then went back again to a coalition with the CDU/CSU in 1982. The latter change of coalition partner led to the only successful vote of no confidence, by which Helmut Kohl replaced Helmut Schmidt as chancellor (Chapter 9.2). The transition from Kohl to Gerhard Schröder in 1998 marked the only change of a federal government in which all coalition parties were replaced. Fourth, the chancellor has always been a member of the largest government party. Even when the CDU/CSU was only narrowly ahead of the SPD after the 2005 federal elections and formed an alliance with the Social Democrats, the preceding chancellor, Gerhard Schröder (SPD), was replaced by Angela Merkel (CDU). However, the strongest group in the Bundestag has no “natural entitlement” to the office of chancellor. Although the CDU/CSU received by far the most votes in the federal elections of 1969, 1976 and 1980 (Table 5.2), the SPD and FDP formed

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the federal government. Sixth, the government coalitions remained stable even if the chancellor changed. This has happened twice so far: in 1963, when Konrad Adenauer transferred the office prematurely to Ludwig Erhard, and in 1974, when Willy Brandt resigned because of an espionage affair and was replaced by Helmut Schmidt. Moreover, the chancellor has typically changed when there was a change in the partisan composition of the government. This was also true for the formation of the first grand coalition in 1966 when the Christian Democrats remained the strongest force in government and made Kurt Georg Kiesinger chancellor instead of Erhard. Angela Merkel was the only chancellor whose consecutive cabinets included different parties (SPD and FDP). This change of coalition partners also reflects the increasing difficulty to form politically cohesive majority governments in a stronger fragmented and polarised party system (Chapter 6.2). This was particularly obvious after the 2017 federal elections when the formation of a coalition between the CDU/CSU, Greens and FDP failed after lengthy negotiations—eventually, the grand coalition of CDU/CSU and SPD was revived as a “last resort” (Siefken 2018). Nevertheless, the SPD, Greens and FDP succeeded in forming a joint cabinet after the 2021 federal elections, testifying to the high flexibility and stability of government coalitions, which is why Germany is also called a “coalition democracy” (Jesse 2017). Therefore, the chancellor cannot lead the federal government according to the majoritarian logic in a top-down manner. Rather, she must combine hierarchical and cooperative elements of leadership to create the necessary unity and willingness to fall into line within the coalition and the cabinet (Gast 2011). To perform successfully, the chancellor needs political resources that go beyond constitutional powers. As in all parliamentary democracies, party leadership is of particular significance here (Grotz et al. 2021). Being the leader of the main government party means that the chancellor can gain political expertise and develop personal networks within the party to support the government agenda. At the same time, the party has a genuine interest in having one person holding both positions because it may benefit from the public visibility and popularity of “their” chancellor at the polls. Indeed, most German chancellors were also leaders of their respective parties. A notable exception was Helmut Schmidt, who in retrospect described it as a big mistake not to have sought the SPD leadership (Schmidt 1996, p. 446). In 2019, the then Federal Minister of Finance Olaf Scholz ran for SPD chairman, but he was eventually defeated in a

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membership referendum. Thus, Scholz is the second chancellor without being a party leader at the same time. It is also no coincidence that Adenauer, Kohl and Merkel, who had the longest tenures as chancellor, were leaders of their parties long before (Table 10.1).4 Helmut Kohl was especially effective in creating an entrenched intra-party power base through his many years as CDU chairman, which helped him to overcome critical phases of his chancellorship (Schwarz 2012a, pp. 135–298). Vice versa, a premature resignation from the party leadership may signal an erosion of the chancellor’s power. In March 2004, Gerhard Schröder transferred the SPD leadership to Franz Müntefering when his government experienced huge losses in support both outside and within the party. Yet, this “act of liberation” did not prove sufficient to stabilise his chancellorship. In a similar fashion, Angela Merkel announced her resignation as CDU leader after the defeat of her party in the Hesse state elections in October 2018 and promised to end her tenure as chancellor with the completion of the legislative term in 2021. Moreover, prime ministers in parliamentary democracies may perform their manifold tasks particularly successfully if they held previous positions in cabinet and parliament. In this respect, all German chancellors had relevant experience (Table 10.1; Helms 2005, pp. 77–80). Konrad Adenauer was the only chancellor without cabinet experience; however, as a long-term mayor of the city of Cologne and chairman of the Parliamentary Council, he was hardly a political outsider. All other chancellors had already held one or more government offices before becoming chancellor, either on the federal or the state level. Kurt Georg Kiesinger, Willy Brandt, Helmut Kohl, Gerhard Schröder and Olaf Scholz had even been prime ministers of a German state and therefore had experience leading a cabinet. Moreover, Helmut Kohl and Angela Merkel had been leaders of the CDU/CSU parliamentary group in the Bundestag while in opposition and were therefore able to position themselves as alternatives to the chancellors of the time. The extent to which a chancellor shapes government policy depends on the interplay of her personal characteristics and the political environment. This may take a different form in the various phases of the government cycle. At the beginning of each legislative term, the Basic Law mandates the election of the chancellor and the subsequent appointment of the federal 4 Konrad Adenauer was chair of the CDU in the British Zone from 1946. After the foundation of the federal CDU in 1950, he became its first chairman.

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ministers (Art. 69, para. 2 GG). These formal steps are usually preceded by the formation of a government coalition. In this process, certain parties in the Bundestag agree on a political alliance intended to ensure a parliamentary majority for the federal government, usually for the duration of one legislative term. There are no constitutional provisions for coalition formation on the federal level. Nevertheless, a typical pattern has emerged in political practice (Switek 2022, p. 418–419). Initially, the chairs of the involved parties and parliamentary groups come together for exploratory talks, where they evaluate their willingness to cooperate and their mutual compatibility. This phase is usually very short. It only dragged on for a month after the 2017 federal elections, when the CDU/CSU, Greens and FDP were trying to sound out an alliance that would have been new on the federal level. Negotiations had already progressed to the stage of very detailed discussions but ultimately failed (Siefken 2018, pp. 412–415). Since this failure was primarily due to differences between the FDP and the Greens, after the 2021 federal elections the two parties first explored the options to enter a joint government before they started the talks with the SPD (Siefken 2022, pp. 176–177). Apart from 2017, all exploratory talks in the past have led to coalition negotiations. This transition is usually unproblematic. The government formation process in 2017/2018 was again an exception. After the failed negotiations between CDU/CSU, Greens and FDP, there was considerable resistance within the SPD party to enter another government with the CDU/CSU. Therefore, the SPD leadership convened a special party conference that voted in favour of starting coalition negotiations (Horst 2018). Generally, the coalition negotiations on the federal level have become more differentiated over time, both in terms of policy and the people involved. In 2021, there were almost 300 participants in 22 different policy-related working groups, including the leadership of the party headquarters and the Bundestag parliamentary groups, state prime ministers, state ministers and members of parliaments (Siefken 2022, pp. 181–185). Controversial issues were resolved in the main negotiation round, which was composed of the chancellor candidate, the chairs of the parties and their Bundestag groups and some other leading politicians. In most cases since 1949, less than 50 days have elapsed between the federal elections and the inauguration of the federal government, and often, the period was less than a month. The time frame was considerably longer in the three grand coalitions formed since 2005, ranging from 65 days (2005) to 86 days (2013) to 171 days (2017). The latter

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case includes the failed CDU/CSU-Green-FDP experiment (Feldkamp 2018, section 6.7). These ever-longer negotiation periods also indicate the increasing difficulty of the CDU/CSU and SPD in identifying a “common denominator” that would enable them to cooperate in a joint government. Prompted by these difficulties, they tried to specify their positions on all controversial issues in the coalition agreement in order to be then able to govern as smoothly as possible. After the 2021 federal elections, the period of government formation was shortened to 73 days, although three different parties took part in the negotiations (Siefken 2022, p. 198). Since 1980, coalition negotiations have culminated in a written document signed by the party leaders and published subsequently.5 These coalition agreements are not legally binding but have a high degree of political reliability, because they document the promise by the party leaders to their party members and their voters to implement the essential contents of their manifestos. The political commitment to the coalition agreement is underpinned by the fact that it is formally ratified by all parties. This decision can be made by the party leadership or by the parliamentary group, by a vote at a special party conference or by a membership referendum. The SPD chose the latter option in 2013 and 2017 when large parts of the party regarded a joint government with the CDU/CSU as problematic. Nevertheless, the coalition agreement was accepted by a clear majority of SPD members on both occasions (Siefken 2018, p. 429). Similarly, the Greens held a membership referendum on the 2021 coalition agreement, which was supported by an overwhelming majority of 86% (Siefken 2022, p. 191). Coalition agreements have three core elements that shape the work of the federal government. First, they determine the most important pledges of government policy. This agenda has become broader and more detailed over time, indicated by the increasing length of the documents. For instance, while the coalition agreement of 1980 was only 2,000 words long, the agreements of 2018 and 2021 were 63,000 and 52,000 words in length, respectively (Saalfeld et al. 2019a, p. 376; Siefken 2022, pp. 185–186). The coalition agreement of 2018 incorporated 294 different pledges, of which almost 80% were fulfilled wholly or partially by the end of the legislative period (Vehrkamp and Matthieß 2021). 5 Before this, only the final Konrad Adenauer cabinet (1961) was based on a written coalition agreement.

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Coalition agreements have thus evolved into “full manifestos” (Busse and Hofmann 2022, p. 114), which increase the stability and reliability of government performance but also limit the chancellor’s political discretion. Second, the coalition agreement specifies the portfolio allocation, the office of the vice-chancellor and the distribution of ministerial positions between the government parties. Like in other Western democracies, the number of federal ministries allocated to government parties roughly reflects their proportion of parliamentary seats (“Gamson’s Law”; FalcóGimeno and Indridason 2013). Nevertheless, the smaller parties in the German government tend to receive a disproportionately large number of ministerial offices (Linhart et al. 2008). Moreover, the smaller coalition partners usually get specific departments, such as the Ministry of Foreign Affairs (Helms 2005, p. 102). Frequently, ministries dealing with related matters are allocated to different coalition partners in order to facilitate mutual scrutiny. In the current federal government in office since 2021, this applies to the Ministry of Finance (FDP) and the Ministry of Economic Affairs (Green) as well as to the Ministry of Justice (FDP) and the Ministry of the Interior (SPD). If a minister leaves office prematurely, their party has the right to nominate a successor. Hence, the chancellor has extremely limited influence on the people who are members of the federal cabinet. She may decide the staffing of the ministries allocated to her own party, especially if she is the party chair. But even then, she is often not entirely free to choose the persons she wants but has to consider various criteria, including the adequate representation of wings and state branches of the party as well as the political experience and policy expertise of the candidates. Finally, gender parity plays an increasingly important role. While the first female federal minister was not appointed until 1961, the Scholz government was the first to have equal numbers of female and male ministers, until Minister of Defence Christine Lambrecht was replaced by a male successor, Boris Pistorius, in January 2023 (Fig. 10.1). Third, coalition agreements include provisions about the decisionmaking procedures and dispute resolution mechanisms between government parties (Bowler et al. 2016). For this purpose, every federal government establishes a coalition committee. The first committee of this kind was created by Chancellor Kiesinger when he met with the political leadership of the grand coalition in a summer house at Lake Constance in 1967 in order to coordinate government policy (“Kressbronner Kreis ”; Niclauß

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2015, pp. 108–109). Since then, it has often been the forum in which core policy decisions were made and coalition conflicts were resolved. Recent examples include the extensive stimulus package that the grand coalition agreed on in June 2020 to ease the social and economic consequences of the COVID-19 pandemic or the “relief packages” the Scholz government launched in 2022 to mitigate the repercussions caused by the Russian war in Ukraine. Some observers have occasionally criticised the coalition committee by arguing that it makes far-reaching political decisions and thus tends to downgrade the Bundestag to a mere ratification body, despite being an informal institution (Niclauß 2004, p. 46). However, empirical research also shows that it enables the creation of efficient compromises between the coalition partners and facilitates effective oversight of the federal government by the parties and parliamentary groups (Miller 2011). Even the chancellor is only the “first among equals” in the coalition committee and therefore has to enlist the support of all participants for her policy agenda. Once the federal cabinet has been inaugurated in line with the coalition agreement, the chancellor delivers her first government declaration to the Bundestag, in which she presents the essential results of the coalition negotiations but also sets her own priorities (Korte 2002). The subsequent routine of federal governance is largely a matter of bargaining and compromise. Since the coalition parties remain independent actors and continue to be vote-seekers, there is a permanent “tension between competition and cooperation” within the federal government (Switek 2022, p. 415). The chancellor is therefore the “coalition manager-inchief”. The stronger the disagreements between the government parties, the less she can set her own agenda. This became very apparent in the first grand coalition (1966–1969) when Chancellor Kiesinger was ironically called a “walking mediation committee” because the party leaders of the CDU/CSU and the SPD wielded the true power (Sturm 2005). The Federal Chancellery plays a key role in intra-governmental coordination. When disagreements arise between individual ministries, the chancellery always seeks to convince the opponent, instead of threatening that the chancellor herself will make the decision based on her authority to set policy guidelines (Busse and Hofmann 2022, p. 77). Formally, the federal cabinet is the central decision-making body, but it is too large and its members are not sufficiently informed on all relevant matters (Rudzio 2005, p. 24). Therefore, the cabinet usually confirms proposals that have

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already been agreed on (Niclauß 2015, p. 70). The coordination necessary to reach an intra-governmental agreement begins with exchange and discussion between the respective departments. For this purpose, there is a nuanced system of inter-ministerial committees on the different levels of the hierarchy. Controversial issues move “from bottom to top”. Before the cabinet meeting, current proposals are discussed in the state secretary circle, chaired by the head of the chancellery, which resolves the last few disagreements. Only the issues that are “sufficiently important (and sufficiently prepared)” make it onto the cabinet agenda (Busse and Hofmann 2022, p. 92). The ministries of the smaller government party are usually coordinated by the vice-chancellor, who has additional administrative staff to conduct these leadership tasks. Part of the intra-governmental decision-making also takes place on the cabinet level. This mainly happens in the cabinet committees, where policy issues that fall under the competences of several ministers are discussed. Sessions of these committees are chaired by the chancellor. Cabinet committees are regulated neither by the Basic Law nor by the Joint Rules of Procedure of the Federal Ministries. They essentially serve as debate forums for a smaller circle to explore where members of the federal government stand on certain matters coming up for decision (Busse and Hofmann 2022, p. 106). Some of these cabinet committees have far-reaching authority and are even allowed to make binding decisions. An example is the Federal Security Council (Bundessicherheitsrat ), which decides on armament exports and has its own rules of procedure. The federal government maintains multiple cooperations with other political institutions and actors. For instance, the state minister in the Federal Chancellery responsible for intergovernmental relations regularly meets the state representatives in the Permanent Advisory Council of the Bundesrat in order to exchange information and clarify procedural questions related to federal decision-making (Busse and Hofmann 2022, p. 143; Chapter 13.3). The coalition committee is not the only institution in charge of political coordination between the government parties; there are numerous other committees supporting “the creation of a unit of action consisting of the executive and the parliamentary groups and parties supporting it” (Grunden 2011, p. 261). Various forms of cooperation also exist with interest groups and associations. Corporatist institutions are of particular significance—these allow the federal government to coordinate with representatives of different associations on key policy issues (Chapter 7.3). One example is the Concerted Action for Nursing created

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in 2018 by the Ministries of Health, Family and Labour, which included diverse interest groups and stakeholders (state governments, associations of nursing professionals and the education of nursing professionals, associations of care facilities and hospitals, churches, health insurance funds, associations of health care users, the Professional Association of Healthcare and Social Welfare Workers, the Federal Employment Agency and the social partners). The central goal of this cooperation was to improve working conditions for nursing staff quickly and effectively (BMG 2019). The federal government also draws on the knowledge of experts and association representatives to initiate reform projects, develop solutions for controversial issues or prepare important laws. To do so, it establishes policy-specific councils and commissions that are either permanently institutionalised or time-limited. The integration of affected stakeholders and scientific experts can help to achieve effective and legitimate solutions. At the same time, the government-centred decision-making on important policies may affect the role of parliament as the core institution of representative democracy (Schöne 2010, p. 259). “Governing by commission” was perceived as particularly problematic during the tenure of Chancellor Gerhard Schröder (1998–2005)—he gave expert panels such as the Hartz Commission a key role in his reform agenda and declared that the recommendations of these commissions would be “implemented point by point” (Siefken 2007, p. 227). Although this did not ultimately prove to be the case, this statement by the chancellor communicated a technocratic position that emphasised the limited significance of parliament in setting the political agenda (Chapter 9.2). The need for coordination and negotiation within and outside of the federal government does not mean that the chancellor must confine herself to the role of a moderator. Given the rather complex structure of the German political system, executive leadership is essential in order to implement the coalition agreement and thus demonstrate the responsiveness of representative democracy to the electorate. For this reason, the chancellor has extraordinary powers such as the competence to set the general policy guidelines and the right to request a vote of confidence (Saalfeld et al. 2019b, p. 259). The mere possibility that she will use these powers may enable her to bring individual ministers and coalition parliamentary groups “into line” (Fleischer 2011, pp. 201–202). Apart from Adenauer, Olaf Scholz has been the only chancellor to make formal use of his competence to determine the government’s policy guidelines. In October 2022, he settled a conflict between his two coalition partners

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over the prolongation of the lifetimes of nuclear power plants by a written instruction citing the chancellor’s constitutional power to do so (Korte 2022). At the same time, he promised to use this formal competence sparingly. Finally, there are two specific contexts where the chancellor’s leadership plays a particularly important role. On the one hand, she participates in bilateral and multilateral summits and meetings on the international level. Being the “chief diplomat” of Germany, she represents the government’s positions there and is largely unfettered by the control mechanisms of the domestic institutions (Kaarbo 2018). Experience in committees and negotiations is not enough to be successful here. In the international context, it is vital to get the right take on complex situations and behave proactively. For instance, Willy Brandt taking the knee at the Warsaw Ghetto memorial in December 1970 was a well-received gesture all over the world that paved the way for the normalisation of German-Polish relationships and became the iconic symbol of German foreign policy (Newnham 2007). Helmut Kohl’s “Ten-Point Plan for Overcoming the Division of Germany and Europe”, which he presented to the Bundestag three weeks after the fall of the Berlin wall in November 1989 and considerably accelerated the path to German unity, was equally consequential (Schwarz 2012a, pp. 535–566). On the other hand, economic and social crises are considered the “hour of the executive”, where an immediate and effective response by the government is crucial to get the situation back under control. Crises can also become the “hour of the chancellor” (Weßels et al. 2013, S. 24) if she shows the kind of political leadership that the overwhelming majority of the country perceives as appropriate to the situation. For example, Gerhard Schröder was able to present himself as a hands-on crisis manager in the flood disaster in the summer of 2002 and increase the popularity ratings for himself and his party (Pappi et al. 2004). Angela Merkel achieved a similar feat during the financial crisis of 2008/2009 and the subsequent euro crisis in 2010/11. Her crisis management was highly praised in both cases and rewarded by the voters, particularly because she displayed a sober, pragmatic leadership style very different from her predecessor. However, Merkel’s case also shows how successful leadership depends on context. Although she adopted a similar leadership style during the refugee crisis of 2015 (Wehrkamp 2020), her crisis management received predominantly critical assessments, which also had

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a negative impact on the performance of the Christian Democrats in the subsequent state and federal elections (Wiesendahl 2016).

10.3 The Federal Government in the European Multi-Level System The German government has played a seminal role in the process of European integration. From the early 1950s, it participated substantially in the foundation of the supranational community and its further development (Chapter 3.1). Today, the federal government still has more influence over the policies of the European Union than any other German institution, since its members hold seats in two EU institutions. The chancellor is a member of the European Council, which is composed of the heads of state and government of the 27 member countries and sets the pace of further integration, while the federal ministers participate in the different formations of the Council of Ministers, which passes EU legislation jointly with the European Parliament (Chapter 3.2). To represent German interests effectively within these institutions, the internal organisation of the federal government has been “Europeanised” in various respects (Sturm and Pehle 2012, pp. 49–66). Since 1949, European integration has been a part of the raison d’être of the Federal Republic of Germany (Haftendorn 2001). Under Chancellor Adenauer, who also headed the Federal Foreign Office until 1955, the further development of the supranational project became a top priority and remains so to this day. The Federal Foreign Office, led by the smaller coalition partner since 1966, has supported this course of the relevant chancellor. Only during the SPD-Green coalition (1998– 2005) did Foreign Minister Joschka Fischer attempt to raise his profile by presenting his own EU policy initiatives (Beichelt 2007b). Overall, summit diplomacy at the EU level has contributed “not insignificantly” to the popularity and electoral successes of the German chancellors (Niclauß 2015, p. 14). Thus, European integration is one of the few policy areas where the chancellor does not function primarily as a coalition manager but sets the guidelines. The most important reason for this is certainly that all government parties on the federal level have pursued a pro-integration course and therefore no coalition conflicts have arisen. The chancellor’s dominant position in EU policy is further underpinned by the fact that the European Council has increasingly become a political decision-making institution since the 1990s, adopting major

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negotiation packages from different proposals, which the ministers in the individual Council formations could not agree on (Sturm and Pehle 2012, p. 54). As a result, the agenda of the European Council has been considerably expanded. In 2021 alone, it met for eight regular and extraordinary sessions. In addition, in that year, there were further summit meetings with third countries and international organisations. These frequent meetings on the EU level enhance the chancellor’s public visibility; at the same time, she must be sufficiently informed about the ever-increasing number of different policies that are relevant on EU level. It is thus even more remarkable that the Federal Chancellery has limited administrative capacity in European affairs compared to the core executives of other large member states. It was not until 2002 that a separate division for EU policy was set up in the chancellery (Krax 2010, p. 90); by mid-2020, there were around 30 staff working there. The Federal Chancellery is therefore dependent on substantive input from the federal ministries in order to manage its European agenda successfully. While the chancellor and the Federal Chancellery determine the EU policy guidelines, the federal ministers and the federal ministries are concerned with “normal” EU legislation. In doing so, they perform two main tasks. First, they have to prepare the policy positions of the federal government on the European Commission’s draft legislation and then promote them in the best possible way in the various Council formations. This also applies to the Eurogroup, where the ministers of finance and economy of the eurozone meet to monitor compliance with budgetary and economic stability rules and to coordinate relevant measures (Art. 137 TFEU, Protocol Number 14). The German government is represented in this informal but powerful body by the Federal Minister of Finance. Second, the German federal government is responsible to the European Commission for the legal implementation of EU directives (Chapter 3.3). In light of this European context, the federal ministries experienced a comprehensive organisational adjustment. Today, all ministries have a section or an entire division dealing with European affairs that prepare the council meetings and take the lead in implementing EU legislation. The head of the Europe section is usually also the ministry’s “EU commissioner” (Müller Gómez and Wessels 2016, p. 227). The portfolio of the Ministry of Agriculture is traditionally most affected by EU provisions (Krax 2010, p. 96). But in the other federal ministries, too, there is now “barely a section that has never had to deal with EU policy issues” (Müller

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Gómez and Wessels 2016, p. 8). The individual ministries also maintain direct relationships with the various bodies and institutions on the European level to obtain relevant information (Sect. 37 GGO). The Permanent Representation of the Federal Republic of Germany to the European Union plays a key role in the intermediation of domestic interests on the EU level. Formally, it is Germany’s diplomatic representation in Brussels, but functionally it is much more than a normal embassy, since the staff working there prepare the meetings of the Council of Ministers and thus form a kind of “hinge” between the national and the supranational levels of government (Müller Gómez and Wessels 2016, p. 38). Almost 200 civil servants are employed at the Permanent Representation, around 75% of whom are recruited on rotation from the various federal ministries (Müller Gómez and Wessels 2016, p. 221). In preparation for the German presidency of the EU Council in the second half of 2020, the number of staff was temporarily increased to around 350 (Ständige Vertretung 2017). The preparation for the EU Council meetings starts in various expert committees and working groups, in which the staff members of the Permanent Representation meet with the officials of the EU Commission and other member states. There, they can gain an early insight into the planned activities of the Commission and influence their preparation as well as sounding out common positions with other government representatives (Fouilleux et al. 2005). The individual dossiers are then collected in the Committee of Permanent Representatives (COREPER), which performs a similar coordinating function at the EU Council level as the circle of state secretaries does for the German federal cabinet. COREPER sets the agendas of the individual councils of ministers and formulates proposals for decisions on the dossiers when there is already a broad consensus between the member countries (Große Hüttmann 2007, p. 42). In contrast to most national coordination bodies, COREPER meets in two different formations. COREPER II deals with proposals on foreign and general affairs as well as economic, financial, trade, justice and home affairs policy while COREPER I is responsible for competitiveness, agriculture, education, labour, social affairs, environment and infrastructure. This dual structure is reflected in the leadership level of the Permanent Representation. The permanent representative, who heads the Permanent Representation and is appointed by the Foreign Office, represents Germany in COREPER II, while the deputy permanent representative comes from the Economic Affairs Ministry and takes

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the German seat in COREPER I. The permanent representative and her deputy usually have the necessary flexibility to reach compromises with COREPER members from other countries. Nevertheless, they do not have free reign to negotiate how they would like but receive specific instructions that the federal ministries have agreed on beforehand. This intra-governmental coordination of EU policy works much like the coordination in domestic policy-making (Beichelt 2015, pp. 272–274; Section 10.2). It starts with the responsible section, which drafts a relevant statement that takes the positions of other ministerial departments, the state governments and various interest associations into account. The Ministry of Finance is always involved in matters with financial implications (Sect. 37, para. 3 GGO). Controversial dossiers are passed “upwards” to the heads of EU divisions, which meet once a month and also involve the Permanent Representation of the European Union. Unlike in the intergovernmental coordination of domestic policies, this group is not chaired by the Federal Chancellery but co-chaired by the Foreign Office and the Ministry for Economic Affairs and Climate Action. Bills that are still controversial are reviewed by the State Secretaries Committee for European Affairs, in which senior civil servants from all federal ministries, the head of the Europe Division in the Federal Chancellery and the permanent representative participate. As a rule, binding decisions are taken at this level on all remaining matters of disagreement. Formally, the federal cabinet is the final decision-making body, but it only deals with EU proposals in exceptional cases. Germany’s coordination of EU policy is rather complicated, since both the leadership of the intra-governmental coordination and the representation in COREPER are divided between the Ministry of Foreign Affairs and the Ministry for Economic Affairs. This arrangement originates from a compromise negotiated in 1958 between Economic Affairs Minister Ludwig Erhard and Foreign Minister Heinrich von Brentano (Hesse and Goetz 1992). Only under the SPD-Green government (1998–2005) were the competences for EU coordination held by the Ministry of Economic Affairs temporarily transferred to the Foreign Office. Apart from this, the division of labour between the Foreign Office and the Ministry of Economic Affairs has “proved remarkably stable” (Beichelt 2015, p. 268). The most important reason for this institutional continuity was a power sharing arrangement between the coalition parties. Since the smaller government party usually occupied the Foreign Office and the larger party

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the Ministry of Economic Affairs, both could equally control the formation of intra-governmental positions on EU policy. With the three-party coalition that took over the federal government in December 2021, an unusual situation has emerged: both ministries are led by the Green party. Whether this new constellation has a lasting impact on intra-governmental coordination remains to be seen. Overall, EU policy coordination in Germany is more inclusive than in other larger member states (Kassim 2003). At the same time, the internal decision-making process can be quite lengthy and lead to the federal government abstaining from voting in COREPER in the early stages of consultation. This abstention due to insufficient coordination has acquired the derogatory nickname “German vote” in Brussels (Bauer et al. 2007, p. 740). However, the German government has been able to effectively assert its interests in many cases when it classified EU-related dossiers as particularly important (Krax 2010, p. 336). Besides participating in European legislation, the federal government also organises the legal implementation of EU directives. In principle, every ministry is charged with the timely transposition of EU legislation into national laws or regulations in its area of responsibility (Section 75 GGO). This national legislation is usually enacted by the administrations of the German states (Chapter 13.4). At the same time, the Ministry of Economic Affairs monitors all transposition deadlines for EU directives, because delays usually lead to EU treaty infringements that may result in considerable fines (Chapter 3.3). Since Germany has repeatedly had difficulties in implementing EU directives in time, the federal government is now aiming to “change as little German law as possible” and thus to make the implementation process as efficient as possible (Müller Gómez and Wessels 2016, p. 171). However, this approach sometimes makes it difficult to integrate supranational provisions into the national body of law, i.e. to align regulatory requirements from the EU with the political-administrative goals of the federal and state governments (Beichelt 2015, p. 285). The increased focus on timely implementation of EU law may thus result in a failure to use the existing scope for domestic policy-making.

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The Federal President

Of all state organs under the Basic Law, the office of the federal president has been most strongly influenced by the historical lessons learnt by the Parliamentary Council from the failure of Weimar democracy (Rausch 1979, p. 15). In the Weimar constitution, the Reich president (Reichspräsident ) occupied a predominant position. Elected by the people for a seven-year term, he had powerful authority “in all branches of the state” (Gusy 2012, p. 23). This included, in particular, the right to appoint and dismiss the chancellor (Art. 53 WRV), to dissolve parliament (Art. 25 WRV) and, in crisis situations, to impose coercive measures against individual German states and to rule by emergency decrees (Art. 48 WRV). Under the first Reich President Friedrich Ebert (1919–1925), the powerful office still contributed to the stabilisation of the young democracy. But when the formation of a parliamentary majority became increasingly precarious in the wake of the global economic crisis, his successor Paul von Hindenburg (1925–1934) installed presidential cabinets from 1930 onwards, dissolved parliament several times and suspended many fundamental rights via emergency decrees (Rudzio 2000, p. 48). When Hindenburg appointed Adolf Hitler as chancellor on 30 January 1933, he finally became a “grave digger” of parliamentary democracy (Barth and Friederichs 2018). Given these experiences, the mothers and fathers of the Basic Law sought to limit the authority of the head of state as much as possible (Niclauß 2012). Thus, the demarcation from the Weimar presidency determined the institutional design of the head of state in the Basic Law. Against this background, it is hard to determine the exact position of the federal president from the respective constitutional provisions (Höreth 2015). The interplay of weak institutional powers, the rationales of political parties and the performance of individual office holders has shaped an understanding of the federal presidency that combines the role of a neutral authority with a capacity for political impact. The institutional framework of the office is set out in the Basic Law.6 According to this, the federal president is elected by the Federal Assembly (Bundesversammlung ), which is convened by the president of the Bundestag solely for this purpose. It consists of the members of

6 Apart from constitutional provisions, there is only the Law on the Election of the Federal President by the Federal Assembly (BPräsWahlG), which regulates the details of the composition of the Federal Assembly and the election process.

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the Bundestag and “an equal number of members elected by the parliamentary assemblies of the Länder [states] on the basis of proportional representation” (Art. 54, para. 3 GG). In this way, the Parliamentary Council made a conscious decision to move away from the direct presidential elections practised in the Weimar Republic in order to avoid competing claims of popular legitimacy by the head of state and the parliament (Oppelland 2012, p. 63). At the same time, the federal president has nationwide legitimation, since she is elected by representatives from the federation and the states. Any German who is entitled to vote in Bundestag elections and has attained the age of 40 may stand for the office of federal president (Art. 54, para. 1 GG). The age threshold, which also applies to federal constitutional judges (Chapter 12.1), is intended to ensure a certain life experience and personal maturity. Candidates may be proposed by any member of the Federal Assembly (Section 9 BPräsWahlG). The federal president is elected for a five-year term and can only be re-elected for one consecutive term (Art. 54, para. 2 GG). This means that the presidential term of office is largely decoupled from the four-year legislative term of the Bundestag, and consequently, the Federal Assembly usually does not have to convene during an election campaign (Rausch 1979, pp. 61–62). After taking office, the federal president cannot be voted out prematurely, which makes her politically independent. If she cannot execute her office or leaves it prematurely, the president of the Bundesrat takes over her duties and authority (Art. 57 GG). Impeachment is only possible if the federal president deliberately infringes on the Basic Law or another federal law. To this end, a quarter of the members of the Bundestag or the Bundesrat may bring an action before the Federal Constitutional Court, which decides on the loss of office (Art. 61 GG). The independence of the federal president is also ensured by the fact that she is not allowed to assume any other public office or engage in any private-sector activities (Art. 55 GG). From the beginning, the elections of federal presidents have been characterised by the competitive logic of party democracy. An important prerequisite for this is the decision rule in the Federal Assembly. In the first and second rounds of voting, an absolute majority of votes is necessary; in the third round of voting, a relative majority is sufficient (Art. 54, para. 6 GG). Unlike the election of constitutional judges, who need twothirds majorities in the Bundestag and Bundesrat, there is no consensus requirement of this kind in the Federal Assembly. Consequently, a party

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can put its favoured candidate in the highest state office if it has a simple majority of votes or can form a “small” voting coalition. In fact, federal presidents were often elected by narrow majorities (Table 10.2). In ten out of the 17 federal assemblies, the successful candidate only received between 49.4% and 52.5% of the votes. Among them were Gustav Heinemann, Roman Herzog and Christian Wulff, who had to hold out until the third round of voting. But even the candidates who were supported by a broad majority were usually backed by solid voting coalitions. In this respect, there were three different party constellations (Rütters 2013, pp. 277–282; Table 10.2). In most cases, the government parties on the federal level rallied behind the successful candidate. On two occasions, the federal presidency was already part of the distribution of offices agreed in the coalition negotiations (Oppelland 2012, p. 64): in 1949, the FDP, as the smaller coalition partner, received the “prize” and sent its chair, Theodor Heuss, into the race. In the coalition agreement of the SPD-Green government of 1998, the SPD bagged the nomination rights and decided to run the former prime minister of North Rhine-Westphalia, Johannes Rau. In 1994, the FDP, as the smaller government party, put up its own candidate to document their independence from the CDU but withdrew her in the third round of voting and thus helped Roman Herzog (CDU) to get into office. At the elections of Walter Scheel (FDP) and Frank-Walter Steinmeier (SPD), it was again members of the smaller coalition partner elected by the parties of the incumbent federal government. In five cases, the government candidates were already supported by cross-party majorities in the first round, which gave the election a consensus-democratic character. These include the re-election of Theodor Heuss (1954), Richard von Weizsäcker (1989) and Frank-Walter Steinmeier (2022)—three very popular presidents who stood unopposed by the Bundestag opposition. The same applied to von Weizsäcker’s first election (1984) but also to the election of former civil rights activist Joachim Gauck, who had already stood in the 2010 election as the candidate of the SPD-Green opposition and received a large number of votes against the then government candidate, Christian Wulff (Oppelland 2012, p. 70). When Gauck was nominated two years later by the CDU/CSU-FDP coalition, the SPD and Greens supported him as well. The Bundestag opposition was able to get their presidential candidates elected in two cases. In 1979, the CDU/CSU had an absolute majority because of its dominant position in the state parliaments and

FDP CDU CDU CDU

1974–1979 1979–1984

1984–1994

1994–1999

1999–2004

2004–2010 (resignation) 2010–2012 (resignation) 2012–2017

Johannes Rau

Horst Köhler

Joachim Gauck

Christian Wulff

SPD

1969–1974

None

CDU

CDU

SPD

CDU

1959–1969

Heinrich Lübke Gustav Heinemann Walter Scheel Karl Carstens Richard von Weizsäcker Roman Herzog

Party FDP

Time in office

Theodor Heuss 1949–1959

Name 1949: 1954: 1959: 1964: 1969:

51.7% 85.6% 50.7% 68.1% 49.4%

(2nd round) (1st round) (2nd round) (1st round) (3rd round)

Election results in the Federal Assembly

Head of NGO

Prime Minister of Lower Saxony

President of Federal Constitutional Court Prime Minister of North Rhine-Westphalia Director of IMF

Mayor of Berlin

2012: 79.9% (1st round)

2004: 50.1% (1st round) 2009: 50.1% (1st round) 2010: 50.2% (3rd round)

1999: 51.6% (2nd round)

1984: 80.0% (1st round) 1989: 84.9% (2nd round) 1994: 52.6% (3rd round)

Federal Minister of Foreign Affairs 1974: 51.2% (1st round) Bundestag President 1979: 51.0% (1st round)

Federal Minister of Justice

Parliamentary Council member; party chair Federal Minister of Agriculture

Position before taking office

Table 10.2 Presidents of the Federal Republic of Germany (1949–2022)

Government (+)

Opposition New coalition Government

Government

Government (+) Government (+) Government

Government Opposition

Government Government (+) Government New coalition New coalition

Majority constellation

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Since 2017

Frank-Walter Steinmeier

SPD

Party

Election results in the Federal Assembly

Federal Minister of Foreign Affairs 2017: 73.9% (1st round) 2022: 71.0% (1st round)

Position before taking office Government Government (+)

Majority constellation

Notes Party: party membership before taking office and subsequently suspended or resigned; position: only the position held directly before taking presidential office; election results in the Federal Assembly: in percent of yes votes in the successful round of voting; majority constellation: government = successful candidate of the government parties on the federal level (“+” additional support by other parties); opposition = successful candidate supported by opposition parties on the federal level; new coalition = supported by alliance between government and opposition parties Source Authors’ compilation based on Rütters (2013, pp. 278–279) and Korte (2019, pp. 358–359; pp. 363–378)

Time in office

Name

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elected Bundestag president Karl Carstens as federal president. In 2004, Horst Köhler’s candidacy was agreed upon by the leaders of the opposition parties—Angela Merkel (CDU), Edmund Stoiber (CSU) and Guido Westerwelle (FDP). Since this nomination was arranged at a meeting in Westerwelle’s private apartment, it was criticised in the media as a “backroom deal” that did not befit the dignity of the highest state office (Korte 2019, p. 103). However, all successful presidential candidacies were based on previous arrangements between party leaders. The latter also applies to the third configuration, in which parties from the government and opposition agreed on a common candidate and thereby explored new coalition constellations. This happened for the first time in 1964 at the re-election of Heinrich Lübke (CDU), who favoured the formation of a grand coalition and was therefore supported by the SPD leadership under Herbert Wehner, while the CDU/CSU’s then coalition partner, the FDP, put forward its own candidate. Two years later, a federal government of CDU/CSU and SPD was actually formed. The 1969 presidential election was seen as a test for another new alliance. Together with the FDP, the SPD managed to get its candidate, Gustav Heinemann, elected against the CDU/CSU candidate. Thus, a “bit of a change of power” was accomplished even before the first SPD-FDP government was formed (Oppelland 2012, p. 65). The re-election of Horst Köhler in 2009 was also understood as a harbinger of change in coalition, as the CDU/CSU reached an agreement with the opposition FDP regarding the current federal president and formed a joint government after the subsequent Bundestag elections (Rütters 2013, p. 279). Only five of the twelve federal presidents ran for a second term and were re-elected (Table 10.2). This does not mean that the other presidents did not have any desire to continue in office. Some presidents, like Gustav Heinemann, Walter Scheel or Roman Herzog, would presumably have liked to continue but declared their decision not to run for a second term since they could not be sure to receive the required majority in the Federal Assembly. Only Joachim Gauck would probably have been confirmed in office by a broad majority but did not stand for the office for a second time for personal reasons (Bannas and Lohse 2016). FrankWalter Steinmeier was the first federal president to announce his candidacy for a second term at a time when he could not be sure to regain a majority in the Federal Assembly. Even when the political majorities were clear, it was not always easy to find a suitable person for the job. For one thing, the federal president

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is supposed to have acquired considerable political experience in order to carry out the manifold tasks of the highest state office. There is a good reason why almost all holders of the office previously held highlevel positions in the federal or state governments, in the Bundestag or in the Federal Constitutional Court (Table 10.2). Horst Köhler—the only exception, apart from Gauck—illustrates the significance of this aspect. Being a prominent career civil servant, he had national and international administrative experience, but did not really feel “part of the ‘political class’ in Berlin” and was therefore unable to provide any “impetus for the further developments of the government system” (Hesse and Ellwein 2012, p. 458). His resignation in May 2010 also documented the failure of his efforts to influence government policy according to his ideas (Höreth 2015, pp. 314–317). On the other hand, a presidential candidate nominated by the largest government party must also be acceptable to the smaller coalition parties. Therefore, it should be a person who neither belongs to the leadership of the larger party nor strongly represents its ideological positions. For example, Richard von Weizsäcker was electable as federal president for large parts of the FDP and the SPD because he was considered a “dissident within the Christian Democrat party” (Oppelland 2012, p. 69). Conversely, Christian Wulff, then prime minister of Lower Saxony, was initially unable to get the support of the centre-right camp in the Federal Assembly and was only elected in the third round with a narrow majority (Höreth 2015, p. 317). After Wulff resigned in 2012 due to alleged bribery and attempts to influence the press, Chancellor Merkel failed to present someone from her own party who would have had the support of the entire government coalition. Eventually, she had to accept the candidacy of Joachim Gauck, launched by FDP leader Philipp Rösler. In the so far penultimate “presidential poker game” (Korte 2019, p. 21) in autumn 2016, the CDU and CSU were unable to reach an agreement, which is why SPD leader Sigmar Gabriel succeeded in pushing through the politically experienced and popular Foreign Minister Frank-Walter Steinmeier as the candidate of the grand coalition. For the 2022 presidential election, the Greens would have liked to bring the first woman into the highest state office. Eventually, they decided against nominating their own female candidate after their coalition partners SPD and FDP and the opposition CDU/CSU spoke out in favour of Steinmeier’s re-election. While a majoritarian logic of political competition dominates the run-up to presidential elections, the Federal Assembly takes place in a

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consensus-oriented ceremony. The more than 1,200 members of the electoral college meet in the plenary hall of the Reichstag, including selected public figures such as artists, actors and sportspersons as delegates from the individual state parliaments to emphasise the broad anchoring of the highest state office in society (Nohlen 2015, p. 54). The election itself is held without a previous debate and by secret ballot (Sect. 9 BPräsWahlG). Thus, the delegates are completely free in their decision. Nevertheless, the partisan logic remains dominant, since the electoral delegates sit together by party affiliation and even the “independent public figures” have been selected according to their preference for a particular party or candidate. It is certainly true that there are usually more “dissidents” at the election of the federal president than there are at the election of the chancellor. However, this has never led to an election result that ran counter to the previous agreements by the majority coalition. After taking office, the federal president is obliged to maintain political neutrality. She symbolically expresses her impartiality by suspending her party membership during the presidency. This unwritten rule was created by the first federal president Theodor Heuss, who even resigned from his FDP membership (Rausch 1979, p. 62). Heuss also cultivated a “restrained understanding of the role of the head of state that none of his successors wanted or was able to reverse” (Decker 2012, p. 160). Indeed, all subsequent federal presidents followed the idea of remaining politically neutral in order to gain the authority necessary for the successful performance of the office. The tasks conferred to the federal president by the Basic Law can be divided into two groups (Strohmeier 2008, p. 177). On the one hand, she has notary oversight tasks, such as ratifications and certifications, which she must carry out and which she can only refuse for legal reasons. On the other hand, she has political tasks, which she exercises at her own discretion. These tasks can be assigned to four main functions (Lhotta 2012; Möllers, 2012): representation of the nation, integration of the body politic, supervision of government and parliament and stabilisation in crises (reserve function). The representative function includes, first and foremost, tasks in the international sphere that are usually performed by the head of state in parliamentary democracies. The federal president “represent[s] the Federation in international law”, “conclude[s] treaties with foreign states on behalf of the Federation” and “accredit[s] and receive[s] [diplomatic] envoys” (Art. 59, para. 1 GG). If the Federal Republic of Germany is

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attacked by armed forces, she can issue a declaration under international law regarding a state of defence (Art. 115a, para. 5 GG). These tasks are of a purely representative nature, because their execution requires the consent of the Bundestag or the federal government (Art. 59, para. 2 GG). In other words, the federal president is not allowed to conduct her own foreign policy. Nevertheless, she can set her own political agenda by finding the right words on official state visits at home and abroad, and by taking a position on foreign affairs on other occasions. Sometimes, federal presidents have been “international door openers” by clearly naming “German failures and historic guilt”, like Richard von Weizsäcker did in Leningrad in 1987 or Johannes Rau in Israel in 2000 (Korte 2019, p. 222). Especially when these positions have been coordinated with the federal government beforehand, the diplomatic engagement of the federal president can produce very positive results. Due to her political independence, she has the opportunity to “address issues and represent opinions that a head of government would not be able to address or represent in the same way out of consideration of their own party, their coalition partners or the public opinion” (Decker 2012, p. 165). Domestically, the federal president also fulfils multiple representative tasks by awarding medals and honours, supporting charities and events through her patronage or speaking at state anniversaries and funerals. In this context, the federal president decides which invitations to accept and where to appear. However, she must always bear in mind that she is the highest representative of the state but not the supreme authority of the parliamentary democracy, which is assigned to the Bundestag as the seat of popular sovereignty (Möllers 2012, p. 95). The integrative function of the federal president is closely related to her representative function. Across all social and political divisions, she is supposed to embody what unites the polity (Nohlen 2015, p. 55). Among the few formal powers in this area is the right to pardon offenders on behalf of the federation (Art. 60, para. 2 GG). This power, which is a relic from the Christian ideal of a ruler, has been assigned to the head of state by the Basic Law because she “was intended to embody the emotional symbol of national unity and integration” (Pieper 2009, p. 376). However, the president is not allowed to issue a general amnesty but only to remit or commute sentences in individual cases. Prominent examples include various members of the Baader-Meinhof Group (better known in Germany as the Red Army Faction or RAF for short), who were pardoned by Richard von Weizsäcker, Roman Herzog and Johannes Rau

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between 1990 and 2003. In contrast, Horst Köhler rejected the petitions for pardon by RAF members Christian Klar and Birgit Hogefeld (Möllers 2012, p. 91). Beyond that, the federal president cannot pursue her own political agenda since any orders or decrees need the countersignature of the chancellor or of the competent federal minister (Art. 58 GG). In exercising her integrative function, the federal president mainly wields the “power of words”. She is free to prioritise issues in speeches and interviews, raise moral questions and denounce grievances. In this respect, all incumbents so far have developed their own profile. A notable example was Richard von Weizsäcker’s speech on the occasion of the 40th anniversary of the end of the Second World War in 1985, in which he called 8 May “Liberation Day” and thus made a genuine contribution to the remembrance culture in Germany (Korte 2019, pp. 171–173). The 1997 “Jolt Speech” by Roman Herzog was also memorable. In this speech, he called for a greater willingness to initiate reforms in view of economic and social challenges (Korte 2019, pp. 173–174). At times, some federal presidents have also expressed criticism of political parties. This enhanced their popularity but also meant they were walking a “fine line”, since it served a common anti-party sentiment and thereby threatened to harm the legitimacy of those actors who carry political responsibility (Grimm 2012). Horst Köhler’s sharp criticism of the grand coalition’s reform policies was not particularly effective, except that he himself prompted unprecedented public criticism (Höreth 2015, pp. 314–317). To be sure, the federal president can and must act if “fundamental rules of democracy are violated” (Korte 2019, pp. 209–210). Accordingly, Frank-Walter Steinmeier accused the Alternative for Germany (AfD) in September 2019 of “paying homage to exclusionary, authoritarian or even ethnic-popular attitudes” (Steinmeier 2019). In so doing, he made it clear that he was not concerned with the party and its leadership but solely with their problematic attitude towards democracy and the rule of law. Overall, the federal president has wide scope for deciding how and where she speaks. This is also evident in the only case brought to the Federal Constitutional Court so far about a federal president. The action was taken by the National Democratic Party of Germany (NPD) according to Article 93, paragraph 1, number 1 of the Basic Law against Joachim Gauck, because he had called the supporters and activists of the right-wing extremist party “weirdos”. In 2014, the Federal Constitutional Court rejected the complaint, saying that the federal president

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decides autonomously how to “bring his representative and integrative tasks to life” (BVerfGE 136, 323). The presidential supervisory function over the federal government and the Bundestag includes a number of competences intended to ensure the correct execution of the constitution and therefore requires the president to act as a notary of the state. This includes the formal issuing of federal laws and their promulgation in the Federal Law Gazette (Bundesgesetzblatt ). In so doing, the president must verify that the laws have been created according to the provisions of the Basic Law (Art. 82, para. 1 GG). There are some controversies in constitutional law and political science on the extent to which the federal president also possesses a substantive right of review and can therefore become a “veto player” in the legislative process (Lhotta 2012). So far, this question has only played a subordinate role in political practice. Since 1949, federal presidents have rejected a total of eight laws because of constitutional concerns; the most recent president to do so was Horst Köhler in 2007 (Rütters 2011, pp. 872–873). In the autumn of 2020, Frank-Walter Steinmeier suspended the issuing of the Act on Combating Right-Wing Extremism and Hate Crime because of constitutional concerns in order to give the Bundestag and Bundesrat another opportunity to improve it (Janisch 2020). The restrained use of this right to review may be explained by the fact that the opposition in the Bundestag has “an effective instrument of scrutiny for the constitutional clarification of any issue at its disposal in the form of abstract judicial review” (Höreth 2015, p. 312). Moreover, the federal president can reprimand those involved in a formally dubious legislative procedure, as Johannes Rau did in 2002 in the case of the immigration law, and thereby exercise his supervisory function (Hesse and Ellwein 2012, p. 457). The presidential right to nominate a person as chancellor to the Bundestag (Art. 63, para. 1 GG) was also not used proactively for a long time. All federal presidents so far nominated the candidates supported by the parliamentary majority. The government formation in 2017 was an exception because President Steinmeier used his authority to facilitate coalition negotiations between the CDU/CSU and SPD after the alliance of the CDU/CSU, Greens and FDP had failed. In this way, he became the “chancellor maker” (Korte 2019, p. 123)—not in order to push through his own nominee but because he felt committed to the stability of the government system. The appointment and dismissal of federal ministers that the federal president carries out upon the proposal of the

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chancellor (Art. 64, para. 1 GG) have hardly caused tensions between the head of state and the head of government. A few conflicts arose in the early days of the republic, such as Heuss’s successful refusal to appoint Thomas Dehler (FDP) as Minister of Justice for a second time—however, this did not really run contrary to the interests of Chancellor Adenauer (Schwarz 2012b, pp. 289–290). In addition, the federal president is responsible for the formal appointment and dismissal of federal judges, federal civil servants, and officers and non-commissioned officers of the Federal Armed Forces (Art. 60, para. 1 GG). In most cases, she delegates this right to other authorities (Art. 60, para. 3 GG). Furthermore, she is continuously informed about the work of the federal government (Sect. 23, para. 1 GGO). This is ensured by the fact that the head of the Office of the Federal President (Bundespräsidialamt ) participates in both the sessions of the federal cabinet and the preparatory rounds of the state secretaries (Busse and Hofmann 2022, pp. 93–94 and 103). The federal president is thus involved in the everyday business of the federal government without directly influencing it. Finally, the federal president has genuine political powers if the functioning of the system of government is under acute threat. The Basic Law specifies three scenarios where this reserve function comes into effect. (1) If no candidate for the office of chancellor achieves a majority in the Bundestag in the third round of voting, the president may either appoint this person as chancellor or dissolve parliament (Art. 63, para. 4 GG). (2) If a vote of confidence by the chancellor does not gain a majority in the Bundestag, the president may confirm the chancellor in office or dissolve parliament (Art. 68 GG). (3) If an urgent bill tabled by the federal government fails in parliament, the president can declare a state of legislative emergency upon request of the federal government and with the consent of the Bundesrat. In this case, federal legislation can take place for a maximum of six months under the same chancellor without the participation of the Bundestag (Art. 81 GG). These reserve powers of the president have not been used so far, since there has never been a state of legislative emergency since 1949. Nor has there been a case in which the chancellor was not elected with an absolute majority in the Bundestag. Only in 1972, 1983 and 2005 did the federal president have to make a decision on whether the chancellor should stay in power after having (intentionally) failed in a vote of confidence. In all three cases, the president in question granted the request of the chancellor and ordered premature elections (Chapter 9.2).

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The Office of the Federal President supports the federal president in performing his tasks. With about 220 employees, it is the smallest supreme federal authority (Pieper and Schmid 2012, p. 109). The head of the presidential office is, by protocol, the highest-ranking state secretary in the Federal Republic of Germany (Pieper and Schmid 2012, p. 103). The holders of this office were also the most important advisors to their presidents and enjoyed a specific position of trust as long-time companions on their political journey (Korte 2019, pp. 107–108). The Office of the Federal President covers a wide range of tasks. It informs the president “about current issues of general policy, the work of the federal government, the Bundestag, the Bundesrat and the decisions of the Federal Constitutional Court, advises him and prepares his official acts” (Pieper and Schmid 2012, p. 101). Staff must meet high professional standards since technical mistakes can considerably affect the authority of the federal president in politics and in public (Pieper and Schmid 2012, p. 109). Thus, the Office of the Federal President reflects the profile of the German head of state in a normal political situation: “an office with a lot of functions but very little influence” (Grimm 2012).

10.5

Conclusion: A Balance of Executive Power and Integrative Capacity?

“It’s all about the chancellor” (“Auf den Kanzler kommt es an” ). This slogan from the CDU election campaign of 1969 illustrates a functional understanding of the German executive that is based on British majoritarian democracy. Accordingly, the head of government has the power to shape policies while the head of state mainly performs representative and integrative tasks. In fact, the Basic Law endows the chancellor with an elevated position. She is the only member of government directly elected by parliament (Art. 63 GG), and the cabinet is appointed according to her nominations (Art. 64 GG). Her continuance in office is safeguarded by the constructive vote of no confidence (Art. 67 GG), and her intracabinet leadership position is strengthened by her right to set general policy guidelines (Art. 65 GG). Moreover, the chancellor is the bestknown and most visible person in German politics. In times of crisis, the chancellor finds herself in the centre of political decision-making, which also benefits her party in election polls most of the time. Nevertheless, the chancellor cannot just shape government policy at her own discretion. Her executive power is limited by the department

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and cabinet principles, which endow the federal ministries with their own weight (Art. 65 GG), as well as by the party coalition on which the government majority in the Bundestag is based. In everyday politics, the chancellor and the Federal Chancellery are primarily concerned with bringing together the diverse interests of the coalition parties and the ministerial departments so that the government displays a united front and remains capable of acting (Schuett-Wetschky 2004, p. 21). Furthermore, the chancellor always has to consider the concerns of the state governments represented in the Bundesrat, which further emphasises the consensus-democratic character of the German political system (Chapter 11). Coordination is thus “an important aspect of the chancellor democracy” (Niclauß 2015, p. 13). Although chancellors have so far practised different leadership styles (Gast 2011), they have usually mastered the challenges of cooperative coalition and cabinet management and thus contributed to the exceptionally high stability of government. The “diversity of voices” within the federal government is particularly pronounced when it comes to European policy-making (Beichelt 2015, pp. 267–268). While the chancellor develops the general guidelines for integration policy with the other heads of state and government in the European Council, the federal ministers participate in shaping supranational legislation in the different formations of the EU Council. Unlike in the domestic context, the intra-government coordination of EU policy is not led by the Federal Chancellery but jointly organised by the Foreign Office and the Ministry of Economic Affairs—an institutional division of labour that has facilitated a balanced representation of the different coalition parties for decades. At the same time, this decentralised arrangement is frequently blamed for causing efficiency problems in the formation of EU policy positions. For this reason, there have been occasional calls to transfer EU-related coordination competences to a new Ministry for European Affairs or at least to a state minister within the Federal Chancellery (Hesse and Ellwein 2012, p. 414; Sturm and Pehle 2012, pp. 60–62). Regardless of whether the sometimes indecisive and late positioning of the German federal government on the EU level is caused by the coordination procedure or other factors (Beichelt 2007a), the appropriate integration of interests of the coalition partners would have to be considered in any setting of intra-governmental coordination. What is much more significant for government performance is a structural problem resulting from party system change (Chapter 6.2). Due to the increasing fragmentation of the Bundestag, majority governments

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can now only be formed if at least three (ideologically heterogeneous) parties join forces or the (previous) catch-all parties CDU/CSU and SPD form a grand coalition. The clear governmental alternatives that voters in the old Federal Republic of Germany were able to choose between are gone—and with them a large part of the transparency and efficiency of the majoritarian democracy that characterised party competition for a long time (Meinel 2019). The options for countering this development on the governmental level are limited. Admittedly, the formation of a minority government by the strongest party could be easily realised in the framework of the Basic Law. Nevertheless, this would only serve to shift the consensus-finding processes from the government to parliament without restoring the logic of majoritarian democracy (Czada 2017). Similar concerns have arisen with the proposal to limit re-election of the chancellor to two terms in order to maintain and enhance the “opportunity for periodic personal renewal” in government (Kloepfer 2016). Apart from the fact that the chancellor can be replaced by the Bundestag majority with someone else at any time, a “term-limited” head of parliamentary government would probably no longer initiate larger reform projects that require the undivided support of both their own party and their coalition partners. The federal president was designed as a counter-model to the presidential role under the Weimar constitution. The Basic Law weakened the head of state as much as possible to prevent political conflicts with the federal government. In the Parliamentary Council, the SPD had even proposed abolishing the presidential office altogether (von Beyme 2017, p. 341). Later, there was also plenty of criticism of the “republican electoral monarch” (Schwarz 2012b, p. 300), which some observers considered alien to the nature of parliamentary democracy or simply “superfluous” (van Ooyen 2015, p. 13). Because of its representative and notary tasks, the office exists basically “in the shadow of other state organs” (Grimm 2012). Nevertheless, the federal presidents so far have developed a distinct profile for the office, which promotes political integration precisely because of its non-partisan image. This includes moral authority as an “institution of speech” (Korte 2019, p. 164) and the diplomatic initiatives of the office holders towards other states, which helped the federal government to deepen Germany’s international relations. Moreover, the federal president may use her “reserve power” to sustain the functioning of the political system in critical situations, as

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Frank-Walter Steinmeier did when a new federal government had to be formed after the 2017 elections. Precisely because such cases could happen more frequently in the future, the abolition of the office of federal president would leave a “void” (Grimm 2012) that other constitutional bodies could hardly fill. Conversely, there have been no demands to extend the powers of the German president—showing how much the restrained conduct in office by the incumbents, past and current, has stood the test of time. Some observers have occasionally called for popular elections of the federal president because the political “haggling” over appropriate candidates might detract from its dignity (Jesse 2004, p. 16). However, direct presidential elections would be equally or even more determined by party competition and therefore the results would hardly come closer to a consensus. Furthermore, the “legitimacy surplus of a popular election” would significantly affect the power balance between parliament, government and president (Rütters 2013, p. 294). The ultimate consequence could be a change in the character of the parliamentary system, “which has performed quite well for the Federal Republic of Germany in contrast to Weimar” (Nohlen 2015, p. 56).

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CHAPTER 11

The Bundesrat

The Bundesrat (Federal Chamber) is the constitutional body where “the Länder shall participate […] in the legislation and administration of the Federation and in matters concerning the European Union” (Art. 50, para. 1 GG). It thus acts as a counterweight to the political majority in the Bundestag by representing the interests of the states (Länder) at the higher levels of government. As the Bundesrat limits the federal government’s scope for action, it is a central element of consensus democracy in the German political system. Does the Bundesrat enable the states to participate in federal and EU policy-making appropriately? Does it promote the effectiveness of the federal system of government, or does it impair its capacity to act? In order to answer these questions, Section 11.1 will present the structural characteristics and tasks of the Bundesrat. Section 11.2 will explain its role and function in the legislative process, which oscillates between representing states’ interests and functioning as a partisan veto player. Section 11.3 will exhibit the position of the Bundesrat in the European multi-level system, while Section 11.4 will provide a summary and discuss selected reform proposals.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 F. Grotz and W. Schroeder, The Political System of Germany, New Perspectives in German Political Studies, https://doi.org/10.1007/978-3-031-32480-2_11

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11.1

Structural Characteristics and Tasks

The Parliamentary Council that drafted the Basic Law in 1948/1949 unanimously agreed that the new West German state should have a federal structure (Chapter 4.1). An equally uncontroversial decision was that the states should have a representative body on the federal level—a second chamber of the kind that exists in most federal systems (Leunig 2009). For this purpose, the Parliamentary Council drew on an institutional model from German constitutional history: the Bundesrat, which already existed in the North German Confederation (Norddeutscher Bund; 1867– 1871) and in the German Empire (1871–1914). This chamber was composed of the governments of the predominantly monarchist states and had extensive legislative powers. It was thus the antagonist of the democratically elected Reichstag. The Weimar constitution (1919) created a similar representative organ for the states in the form of the Reichsrat, which had a considerably weaker position in the legislative process (Eith and Siewert 2010). The institutional design of the Bundesrat resulted from a compromise in the Parliamentary Council that was only struck after heated debates (Oeter 1998, pp. 127–131). Both the Social Democratic Party (SPD) and major parts of the Christian Democratic Union (CDU) were in favour of a directly elected chamber modelled on the US Senate that would represent all states equally but only have limited authority. This model followed the idea of a unitary majoritarian democracy in which the federal government should be as powerful as possible (Kropp 2010, p. 53). Liberal and conservative members of the Parliamentary Council from Southern Germany—most of all from the Christian Social Union (CSU)—advocated for a Bundesrat consisting of members of the state governments and with legislative powers that would equal those of the Bundestag. In their view, this was the only model appropriate for a federal order because they assumed that there would be fewer partisan conflicts in a chamber composed of state governments than in a senate composed of deputies elected by the people. An agreement was eventually reached in a secret conversation between Bavarian Prime Minister Hans Ehard (CSU) and North Rhine-Westphalian Minister of the Interior Walter Menzel (SPD). In this compromise, the “unitarists” accepted the Bundesrat model while the “federalists” gave up their demands that the Bundestag and Bundesrat would have equal legislative powers.

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Due to its historical origins, the Bundesrat has four structural characteristics that distinguish it from both the Bundestag and from the second chambers of other democracies (Riescher et al. 2010). First, the Bundesrat does not consist of directly elected representatives but of members of state governments. They are delegated and recalled by their respective governments and are bound by their instructions (imperative mandate). Thus, after each change of government in a state, the political composition of the Bundesrat also changes. Because state elections do not take place simultaneously, the Bundesrat members are never replaced all at once. This is why the Bundesrat is called an “eternal body”. Since 1949, its plenary sessions have been numbered consecutively rather than according to election periods. The 1000th session of the Bundesrat was held on 12 February 2021. Its executive-centred structure is also evident at the working level. The discussion and processing of draft legislation take place in 16 committees, which are formed according to the portfolios of the federal ministries and in which each state is represented by one member (Müller et al. 2020). These committees may also include “other members or representatives of Land governments” (Art. 52, para. 4 GG). In fact, most of the Bundesrat committee members are civil servants from the relevant state ministries and receive expert guidance from them. Since the states are in charge of implementing most federal laws and their administrations have the appropriate expertise, the work in the Bundesrat committees is crucially important for the substantive quality and effectiveness of federal legislation (Hoffmann and Wisser 2012). Second, the management level of the Bundesrat is organised according to the principle of federal equality. At the top is the Bundesrat president. This office rotates annually on 1 November between the 16 state prime ministers in order of state size. This rotation procedure also ensures that the office of the presidency is not compromised by the Bundesrat’s frequently changing composition or by partisan interests. The Bundesrat president has mainly representative tasks: she presides over the Bundesrat administration (secretariat), chairs its plenary sessions and represents it in public. If the federal president retires prematurely or is unable to perform her duties, the Bundesrat president exercises these powers (Art. 57 GG). In addition, the Bundesrat presidium also includes two vice presidents, which are the president of the previous year and the president designate of the next year. This “troika” ensures continuity at leadership level. In administrative matters, the presidium is supported by the Permanent

Baden Württemberg-Baden WürttembergHohenzollern Baden-Württembergc Bavaria Bremen Hamburg Hesse Lower Saxony North Rhine-Westphalia Rhineland-Palatinate Schleswig–Holstein Saarlandd Berline Brandenburg Mecklenburg-West Pomerania Saxony Saxony-Anhalt Thuringia Totalf Largest statesg

Federal state (Land)

7.0 9.3 7.0 – 11.6 7.0 7.0 9.3 11.6 11.6 9.3 9.3 – – – – – – – 100.0 58.1

3 4 3 – 5 3 3 4 5 5 4 4 – [4] – – – – – 43 25

Votes Votes (abs.) (%)

1949a

– – – 100.0 74.7

– 19.2 1.2 3.4 9.1 14.3 27.7 6.3 5.4 – [4.3] – –

2.8 8.2 2.5

– – – 41 20

5 5 3 3 4 5 5 4 4 3 [4] – –

– – –

– – – 100.0 48.8

12.1 12.1 7.3 7.3 9.8 12.1 12.1 9.8 9.8 7.3 – – –

– – –

Population Votes Votes (%) (abs.) (%)

1964

Table 11.1 Vote distribution in the Bundesrat (1949–2022)

– – – 100.0 73.9

14.7 17.7 1.3 3.3 9.0 12.2 29.4 6.3 4.3 2.0 [3.8] – –

– – –

4 4 4 68 24

6 6 3 3 4 6 6 4 4 3 4 4 3

– – –

5.9 5.9 5.9 100.0 35.3

8.8 8.8 4.4 4.4 5.9 8.8 8.8 5.9 5.9 4.4 5.9 5.9 4.4

– – –

Population Votes Votes (%) (abs.) (%)

1991

5.8 3.5 3.2 100.0 58.0

12.4 14.4 0.9 2.1 7.3 9.3 21.8 4.8 3.3 1.3 4.3 3.2 2.4

– – –

4 4 4 69 24

6 6 3 3 5 6 6 4 4 3 4 4 3

– – –

5.8 5.8 5.8 100.0 34.8

8.7 8.7 4.3 4.3 7.2 8.7 8.7 5.8 5.8 4.3 5.8 5.8 4.3

– – –

Population Votes Votes (%) (abs.) (%)

2022b

4.9 2.6 2.5 100.0 60.3

13.4 15.8 0.8 2.2 7.6 9.6 21.5 4.9 3.5 1.2 4.4 3.0 1.9

– – –

Population (%)

412 F. GROTZ AND W. SCHROEDER

14 – –

37.2 – –

Votes Votes (abs.) (%)

1949a

16.3 – –

13 – –

31.7 – –

Population Votes Votes (%) (abs.) (%)

1964

10.8 – –

12 23 19

17.6 33.8 27.9

Population Votes Votes (%) (abs.) (%)

1991

6.6 22.3 18.0

12 23 19

17.4 33.3 27.5

Population Votes Votes (%) (abs.) (%)

2022b

6.1 19.3 14.9

Population (%)

Source Authors’ compilation based on Statistisches Bundesamt and www.wahlen-in-deutschland.de/bBundesrat.htm Abbreviation abs. = absolute. Notes: a Population data for 1950. b Population data as of 31 December 2021. c From 1949 to 1953, Baden-Württemberg was still Baden (3), Württemberg-Baden (4) and Württemberg Hohenzollern (3). d The Saarland acceded to the Federal Republic of Germany on 1 January 1957. e From 1949 till 1990, West Berlin delegated four advisory members to the Bundesrat who did not have full voting rights. f Percentages rounded to whole digit. g Totals for the four states with the largest or smallest populations

Smallest statesg Eastern states + Berlin Eastern states

Federal state (Land)

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Advisory Council, which is composed of the 16 state representatives at the federal level (Bevollmächtigte der Länder beim Bund). Third, the states have different voting weights in the Bundesrat. The allocation formula is based on the principle of degressive proportionality, which aims to strike a balance between the equality of state representation (federal principle) and the equality of citizen representation (democratic principle). Each state has at least three votes, states with more than two million inhabitants have four votes, those with more than six million inhabitants have five and those with more than seven million inhabitants have six votes (Art. 51, para. 2 GG). Table 11.1 shows the distribution of votes in the Bundesrat since 1949. Compared to their population, the smaller states have been clearly overrepresented while the larger ones are underrepresented. Since German reunification, this imbalance has increased. Before 1990, the four largest states almost had an absolute majority. Since then, their joint share has decreased to 34.8%, which is only sufficient to block constitutional changes (Chapter 2.2). Conversely, the five East German states and Berlin jointly had a third of the Bundesrat votes after 1990 until Hesse received an additional vote in 1996 due to population growth, thus making it one of the larger states. Fourth, the Bundesrat votes of each state may be cast only as a unit (Art. 51, para. 3 GG). It is thus irrelevant how many members of a state are present in the Bundesrat. The vote of a state government is usually cast by a previously designated “vote leader” (Stimmführer). If another Bundesrat member from the same state contradicts the vote leader, all the votes of that state are declared invalid. The parties participating in a state government usually include an “abstention clause” in their coalition agreement that regulates voting behaviour in the Bundesrat in cases of political disagreement. If the government parties cannot agree beforehand, the state abstains from the vote (Kropp 2010, p. 71). These structural idiosyncrasies explain why the Bundesrat was called “a world-wide unique body” (quoted in Mannewitz and Rudzio 2022, p. 287). Regarding its tasks, however, the Bundesrat can be considered a second parliamentary chamber with three core functions. (1) Electoral function. The Bundesrat selects half of the members of the Federal Constitutional Court (Art. 94, para. 1 GG). This electoral right is particularly important in maintaining the state interests since the court is the final decision-making body when conflicts

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arise between the competences of the federal and the state level (Chapter 12.1). The appointment of the Federal Public Prosecutor General and the other federal prosecutors also needs the Bundesrat’s consent. In contrast, the Bundesrat has no influence on the formation and dismissal of the federal government, which is the prerogative of the Bundestag, and it is not involved in the election of the federal president either (Chapter 10.4). (2) Public function. The Bundesrat “meetings shall be open to the public” (Art. 52, para. 3 GG). Nevertheless, its sessions are characterised by a sober and business-like atmosphere. The speakers present their positions, often coordinated in detail with the respective state ministries, without interjections or debates. This cooperative and issue-based decision-making represents a clear alternative to the partisan battles between government and opposition that characterise plenary debates in the Bundestag. (3) Legislative function. The most important task of the Bundesrat is to represent state interests in federal legislation. Its legislative powers are particularly strong in constitutional crises. If the federal president declares a state of legislative emergency, the Bundesrat may completely replace the Bundestag for a maximum of half a year (Art. 81 GG; Chapter 2.2). In ordinary times, the Bundesrat also has a central position in the legislative process. First, it has the right—like the Bundestag and the federal government—to propose draft legislation, on which the federal government states its own views (Art. 76, para. 3 GG). Conversely, it comments on all draft legislation sent to the Bundestag by the federal government (Art. 76, para. 2 GG). The Bundesrat’s most significant political competencies are its veto powers, which take different forms depending on the subject matter.

. First, amendments to the Basic Law need at least two-thirds of the votes of the Bundesrat (Art. 79, para. 2 GG). Thus, the constitutional distribution of powers can only be changed with the approval of a broad majority of the state governments. Since changes of the federal order to the detriment of the states may also happen without formal amendments to the constitution, the Bundesrat can bring a

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complaint to the Federal Constitutional Court in such cases (Art. 93, para. 1, no. 2a GG; Chapter 12.1). . Second, the Bundesrat has an absolute veto in the case of legislation requiring consent (Zustimmungsgesetze). In this case, a draft bill must receive a majority of all votes in the Bundestag; abstentions count as votes against the bill. If consent is withheld, the Bundesrat decision cannot be overruled by the Bundestag. Legislative matters requiring consent are explicitly mentioned in the Basic Law. Essentially, this includes regulations with a financial impact as well as those concerning the administrative competences of the states. This does not only apply to federal laws but also to most statutory instruments (Rechtsverordnungen) by the federal government (Art. 80, para. 2 GG; Chapter 4.2). . Third, all other legal materials are considered legislation requiring approval (Einspruchsgesetze). In this case, the Bundesrat has a suspensive veto power. If it rejects such a bill with a simple majority, the Bundestag may overrule the objection with a simple majority. If the Bundesrat rejects the bill by a two-thirds majority, the bill will also need a two-thirds majority in the Bundestag, including at least a majority of its members (Art. 77, para. 4 GG). Hence, the Bundesrat is almost equal to the Bundestag in the legislative process. To avoid a stalemate between the two bodies, the Basic Law makes provision for a panel to be established “for joint consideration of bills, composed of Members of the Bundestag and of the Bundesrat” (Art. 77, para. 2 GG). This Mediation Committee may be convened when demanded by the Bundesrat after every legislative decision by the Bundestag; in the case of bills requiring the Bundesrat’s consent, the Bundestag and the federal government are entitled to do so as well. The Mediation Committee has some features that facilitate mutual agreement between both sides (Lhotta 2000). Each of the 16 states sends a member of the Bundesrat to the committee, which are complemented by 16 members of the Bundestag, selected at the beginning of each legislative term proportional to the size of their parliamentary groups. This parity of membership ensures that neither side can outvote the other. Moreover, proposal agreements that the Mediation Committee passes with a majority of its members can only be accepted or rejected by the Bundestag in its entirety. The finality of the committee vote also increases the pressure

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to agree, because there can be no further negotiations. Moreover, the Mediation Committee fundamentally differs from the procedures in the Bundesrat because committee members are not “bound by instructions” (Art. 77, para. 2 GG), which facilitates compromises during the negotiation process. The probability of agreement is further enhanced by the fact that the Mediation Committee does not meet in public and those involved do not need to justify any concessions they might make. In this way, it enables inclusive and effective solutions negotiated between the Bundestag and Bundesrat. However, the fact that the sessions of the Mediation Committee do not take place in public makes it difficult to reconstruct the negotiation process and hold particular parties accountable for the results.

11.2

The Bundesrat’s Role in Representing State Interests and Party Politics

The behaviour of Bundesrat members in the legislative process can be guided by two different logics. On the one hand, they can act as the stewards of state interests. Their positions will then depend on how their state is affected by the matter at hand. For example, German states with access to the sea, such as Lower Saxony, Schleswig-Holstein and Mecklenburg-West Pomerania, might be in favour of more support for coastal protection, while states with high public debt, such as Bremen, Saarland or Berlin, generally oppose extensive tax relief. According to this logic, the state governments come together to seek broad majorities on policy issues in cooperative negotiations. On the other hand, members of the Bundesrat may seek to assert their partisan interests. In the Bundestag, government and opposition parties generally face off against each other (Chapter 9.1). Likewise, the Bundesrat may see the formation of partisan majorities if the state governments with the same “party colours” align with each other. This is particularly attractive for those parties in opposition in the Bundestag. When “their” state governments have most Bundesrat votes and act as a unified front, they may critically affect the federal government’s room for manoeuvre. This is especially true for legislation requiring consent, where the Bundesrat has absolute veto power (Section 11.1). Consequently, the members of the Bundesrat can behave as party affiliates and hence follow the majoritarian differentiation between government and opposition to gain political advantage in the party competition.

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Both logics of action are legally permissible and politically rational from an individual perspective. However, the consistent pursuit of partisan interests in the Bundesrat might jeopardise the functioning of the German political system. Following Gerhard Lehmbruch (1976, 2000), there is a fundamental tension between bipolar party competition, which manifests in the antagonism between the government majority and the opposition in the Bundestag, and the institutional pressure for federal negotiations that results from the powerful position of the Bundesrat. This “structural rupture” can have serious consequences if the partisan majorities in Bundestag and Bundesrat diverge. On the input side, the transparency of the legislative process may be impaired, since the government majority in the Bundestag always needs to involve the largest opposition party in decision-making to ensure approval in the Bundesrat. Since there is usually a “latent grand coalition” that makes joint decisions behind the scenes, citizens may not be able to recognize which parties are responsible for specific policies and which ones to hold accountable at the next federal elections (Lehmbruch 1976, p. 160). This constellation thus undermines the transparency and accountability of party competition that is typical of majoritarian democracy. On the output side, diverging majorities in the Bundestag and Bundesrat may also lead to suboptimal results. In extreme cases, the opposition majority in the Bundesrat may block any decisions. In normal times, federal policy-making is shaped at the level of the “lowest common denominator” (Lehmbruch 1976, p. 161). Farreaching reforms are virtually impossible if the most important opposition parties have a veto position. Finally, “federal and regional issues are […] sacrificed on the altar of party competition if state interests must stand behind federal politics” (Kropp 2010, p. 60). Therefore, the major task of the Bundesrat—the institutional representation of state interests—is compromised. To what extent do these functional repercussions diagnosed by Lehmbruch influence the actual working of the Bundesrat ? A differentiated answer to this question should consider the following aspects. The most important institutional precondition for the structural rupture between party competition and cooperative federalism is the legislative veto power of the Bundesrat. A key indicator of this power is the proportion of legislation requiring consent. Since the federalism reform of 2006, the share of bills requiring Bundesrat consent has decreased significantly. Nevertheless, it is still between 35 and 40% (Chapter 4.2). These bills include most policy issues that have considerable financial impact

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and are therefore particularly controversial (Reus and Zohlnhöfer 2015, p. 251). Hence, the federalism reform has only mitigated the likelihood of political blockades by an “oppositional” Bundesrat to a limited extent. The institutional pressure on the government majority in the Bundestag to negotiate with the Bundesrat has remained unchanged. The most important political precondition for legislative stalemates are diverging majorities between Bundestag and Bundesrat. To explore these constellations empirically, we may divide the state governments represented in the Bundesrat into three groups (“ROM” model; Lehmbruch 1998).1 If a state government only consists of parties that are also part of the federal government, it is an “R” state (R for “Regierung” = government in German). If R states have the majority of the Bundesrat votes, there is no danger of partisan blockades. The opposite applies if the majority in the Bundesrat consists of state governments whose parties all belong to the Bundestag opposition (“O” states or opposition states). Finally, there are state governments that consist of a coalition between government and opposition parties at the federal level. These mixed states (“M” states) are neutral in partisan terms since their governments are positioned between the government and opposition camp and therefore abstain in Bundesrat decisions on politically controversial bills. In the case of bills requiring approval, such abstentions have no further consequences. However, with bills requiring the consent of the Bundesrat, abstentions have the effect of rejection (Section 11.1). Therefore, if M states become the dominant group in the Bundesrat, a large number of abstentions can cause “passive blockades” of federal legislation. Figure 11.1 shows that the Bundesrat was only dominated by the Bundestag opposition in particular phases: during the social-liberal coalition (1973–1982) as well as towards the end of the tenures of Helmut Kohl (CDU; 1995–1998) and Gerhard Schröder (SPD; 2003–2005). Thus, active blockades of federal policy-making were only possible for a limited time. Likewise, the R states had their own majority in the Bundesrat for a limited time during the late 1960s (1963–1969), during

1 There is also the differentiation between “A states” (governed by the SPD) and “B

states” (governed by the CDU or CSU). First used by Chancellor Helmut Schmidt in the 1970s, these labels are still common in political parlance until today. However, the A-B dichotomy has become more problematic since there have been more joint governments between CDU and SPD at the state level and also state prime ministers who belong to other parties (The Greens in Baden-Württemberg, The Left in Thuringia; Chapter 13.3).

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the first half of the Kohl government (1983–1991) and the first grand coalition under Angela Merkel (2006–2010). In all other periods, the M states had at least enough votes that neither side had a majority in the Bundesrat; until the early 1960s and again after 2013 they even had a clear majority of votes. Under such “neutral” Bundesrat majorities, two distinct patterns are possible: federal legislation may be hampered if the M states collectively abstain from voting, or there may be more open and intensive negotiations among the state governments (Lehmbruch 1976, pp. 162–163). Legislative conflict between Bundestag and Bundesrat was much more frequent under opposition majorities than in other phases. As Fig. 11.2 shows, the share of appeals to the Mediation Committee was only over 15% during legislative periods when O states held a majority of Bundesrat 100 90 80 70 60 50 40 30 20 10

1949 1950 1951 1952 1953 1955 1956 1957 1958 1959 1960 1961 1962 1964 1966 1967 1969 1970 1971 1972 1976 1977 1978 1981 1982 1985 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022

0

G states

O states

M states

50%

Fig. 11.1 Partisan majorities in the Bundesrat (1949–2022, in percent of votes) (Source Authors’ compilation on the basis of Träger [2016, p. 174], www.wahlenin-deutschland.de/bBundesrat.htm and; as of 31 December 2022. Values always refer to 31 December of the year)

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votes (1972–1980; 1994–1998; 2002–2005).2 At the same time, the share of failed legislation requiring consent was relatively low. Even during the most conflictual periods, this proportion remained consistently under 6% and was often much lower. However, the failed bills also included politically significant projects such as the tax reform at the end of the Kohl era, which was prevented by the SPD-led majority in the Bundesrat (Träger 2008). During phases when Bundesrat majorities were “neutral”, no “passive blocking ” could be observed. Particularly between 2013 and 2017, when the M states held a supermajority of Bundesrat votes, appeals to the Mediation Committee were very rare, as were failed bills requiring consent. One reason for this was that intergovernmental coordination started “well before the formal decision of the federal government on a draft bill, for 10

30

9 25

8 7

20

6 5

15

4 10

3 2

5

1949-1953 1953-1957 1957-1961 1961-1965 1965-1969 1969-1972 1972-1976 1976-1980 1980-1983 1983-1987 1987-1990 1990-1994 1994-1998 1998-2002 2002-2005 2005-2009 2009-2013 2013-2017 2017-2021 since 2021

0 1949-1953 1953-1957 1957-1961 1961-1965 1965-1969 1969-1972 1972-1976 1976-1980 1980-1983 1983-1987 1987-1990 1990-1994 1994-1998 1998-2002 2002-2005 2005-2009 2009-2013 2013-2017 2017-2021 since 2021

0

1

Fig. 11.2 Mediation Committee: Number of cases and denials of consent (in percentages, 1949–2022) (Source Author’s compilation following Träger [2016, p. 175] and www.bundestag.de/parlamentsdokumentation; as of 30 November 2022. Left hand graph: number of requests to the Mediation Committee proportional to all legislative bills; right-hand graph: number of denials of consent proportional to all legislative bills requiring consent)

2 The period between 1990 and 1994 is an exception. During the second part of this legislative term, the O states were already quite strong and the R states were significantly below a Bundestag majority.

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instance within the framework of ministerial conferences [or] the Prime Ministers’ Conference” (Schmedes 2017, p. 911). Occasionally, state interests are asserted effectively in the Bundesrat. This is particularly the case when all states oppose a piece of federal legislation, such as when the fiscal equalisation mechanisms were revised in 2016 (Chapter 4.2) or in the case of the amendments to the EU treaties (Section 11.3). However, alliances of this kind are quite rare, since the interests of the states are very diverse due to their socioeconomic and sociocultural heterogeneity (Chapter 13.1). This does not mean that individual states cannot succeed in asserting their issue-based concerns. To achieve this, they must form alliances with like-minded states or the federal government. Party politics also plays an important role in the initiatives for federal legislation (Art. 76 GG). Notably, the O states table a particularly high number of bills through the Bundesrat if they have a majority there. This is based on the reasoning that “legislative bills benefit from more public interest if they have already received formal confirmation by the Bundesrat” (Harle and Stecker 2011, p. 333). However, the Bundestag does not have to deal immediately with bills presented by the Bundesrat but can postpone their discussion by a majority decision. Nevertheless, Bundesrat initiatives by opposition parties can sometimes be successful. A case in point is the “marriage for all” act, the draft bill for which was brought into the Bundestag by the O states via the Bundesrat in 2013 but was deferred several times by the CDU/CSU parliamentary group (Bundesratsdrucksache 196/13; Mangold 2018). However, when the broadening of marriage became an important issue in the 2017 election campaign and all potential coalition partners of the CDU/CSU spoke out in favour of it, the Bundestag swiftly passed the “marriage for all” act after Chancellor Merkel (CDU) declared it a “matter of conscience”. Apart from this, there are Bundesrat bills of a non-partisan nature tabled by M states. These bills are few in number but are usually supported by a broad majority of states. Thus, “despite all party politics, issue-based state interests do find their way into draft legislation of the Bundesrat, albeit to a moderate extent” (Harle and Stecker 2011, p. 334). Even if the O states dominate the Bundesrat, the federal government may try to circumvent political confrontation. One potential approach is to make attractive offers to individual state governments. For instance, in 2000, the SPD-Green government under Gerhard Schröder managed to ensure a Bundesrat majority for its tax reform by “buying” the votes of a

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few M states with certain funding pledges (Merkel 2003, p. 174). Alternatively, the federal government may adapt its agenda to the Bundesrat majority by refraining from “initiating draft legislation in parliament that it cannot expect majority support for or anticipating the positions of the opposition in the policy formulation” (Burkhart and Manow 2006, p. 810). This kind of “auto-limitation” of the federal government may serve to cover up the “structural rupture” but cannot completely avoid its input and output problems identified by Lehmbruch.

11.3 The Bundesrat in the European Multi-Level System European integration has substantially changed the position of the German states in the multi-level system (Chapter 3.3). On the one hand, some legislative powers of the state parliaments, such as in agriculture and forestry or environmental protection, have been transferred to the supranational level (Hesse and Grotz 2005, pp. 132–152). On the other hand, state administrations must implement the bulk of EU secondary law that is decided in Brussels and Strasbourg. For this reason, the states seek to influence EU policy-making in various ways (Chapter 13.4). The Bundesrat has significant competences for representing state interests in EU affairs. This is in line with its powerful position in domestic politics. However, the Bundesrat has had to fight for receiving codetermination rights in EU affairs in a lengthy process (Grotz 2007, pp. 81–144). Originally, the Basic Law made provisions for transferring “sovereign powers to international organisations” (Art. 24, para. 1 GG). Although this equally applied to the powers of the states, the Bundesrat only received a general right to information and a suspensive veto right in European affairs (Art. 32, para. 2 GG; Art. 53 GG). In the ratification of the ECSC Treaty (1951) and the Treaties of Rome (1957), it received no further participation rights, although several states had asked for it. The federal government merely acknowledged that it would inform the Bundesrat about current developments in the Council of Ministers and agreed to provide access to EU-related documents in advance. Since 1979, the states have been allowed to send two representatives to the consultations of the European Commission and the Council, but this has also proved to be “not very impactful” from the states’ point of view (Sturm and Pehle 2012, p. 89).

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The adoption of the Single European Act (SEA) in 1985 was a true watershed. The Bundesrat declared that it would only agree to the ratification if it were to receive substantial participation rights in European policy-making in the future. By presenting such a united front to the federal government, the state governments managed to assert their institutional interests (Hrbek 1986). The SEA Act gave the Bundesrat the right to present formal positions on all EC proposals. In matters solely concerning state legislation, such a statement had to be substantially considered by the federal government. When the Maastricht Treaty was ratified in 1992, the EU-related codetermination rights of the Bundesrat were enshrined in the Basic Law. The state governments hence were again successful in achieving their core aims by threatening to veto the ratification. These demands are summarised in the revised Article 23 of the Basic Law and are still valid today: . An absolute veto right when national competences are transferred to the EU level (Art. 23, para. 1 GG); . A co-determination right in EU affairs “insofar as it would have been competent to do so in a comparable domestic matter or insofar as the subject falls within the domestic competence of the states” (Art. 23, para. 4 GG); . A participation right in national EU policy-making. In particular, this means that the federal government must give “prime consideration” to the position of the Bundesrat if the legislative or administrative powers of the states are primarily affected (Art. 23, para. 5 GG). However, this must “be consistent with the responsibility of the Federation for the nation as a whole”; . The right to send a Bundesrat delegate as the German representative to the EU Council if exclusive legislative powers of the states are affected (Art. 23, para. 6 GG). In the federalism reform of 2006, this regulation was limited to “school education”, “culture” and “broadcasting”; however, this has not meant a big change in political practice. Finally, the EU-related competences of the Bundesrat were expanded through the Treaty of Lisbon (2009). Just like the Bundestag, the

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Bundesrat can lodge a subsidiarity objection via the “early warning mechanism” against draft legislation by the EU Commission (for more details, see Chapter 9.3). Furthermore, it can bring a subsidiarity complaint against EU legislation at the European Court of Justice (ECJ). According to an agreement by the Prime Ministers’ Conference of 2005, this right is available to every German state, since the Bundesrat should be sympathetic to complaints by individual states (Grasl 2016, pp. 176–177). Moreover, the Bundesrat has adapted its internal organisation to meet the challenges of ongoing Europeanisation. As early as 1957, it created a special committee for the Common Market and the Free Trade Area, which was transformed into the Standing Committee for Questions pertaining to the European Communities (later: European Union). “This EU Committee is responsible for examination of all Council and Commission documents that are of importance for the German federal states” (Bundesrat n.d.). It has so far not acted as a “brake” on Europeanisation but has rather articulated the related recommendations by other Bundesrat committees and underscored the pro-integrative position that has characterised German EU politics (Sturm and Pehle 2012, p. 96). Moreover, the Bundesrat established a Chamber for European Affairs in 1992, enshrined in Article 52, paragraph 3a of the Basic Law. Unlike most Bundesrat committees, it does not consist of civil servants from state ministries but of members of the state governments who can make binding decisions about EU proposals in place of the Bundesrat plenary assembly. The Chamber for European Affairs is mainly intended to enhance the responsiveness of the Bundesrat in EU affairs. However, it has not attained great significance, since almost all EU matters are still dealt with in the plenary sessions of the Bundesrat (Kropp 2010, p. 162). The Bundesrat has used its participation rights in EU affairs in different ways. It now deals with a little over 100 EU legislative acts annually (Bundesrat 2021, p. 9). Therefore, one cannot say that the Bundesrat receives insufficient information from the federal government or the EU Commission or that it has an administrative capacity deficit. However, it is far more difficult to determine if the use of these procedures ensures the effective representation of state interests in EU policy-making. The proportion of positions according to Article 23 of the Basic Law that the Bundesrat regarded as particularly relevant and therefore wanted to be given “prime consideration” by the federal government was significantly below 5% (Kropp 2010, p. 166). Even if the federal government had a different legal interpretation in some of these cases, open conflict about

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the content of the German position in the EU Council remained an absolute exception. The Bundesrat rarely used the formal option to delegate the lead in negotiations in the Council of Ministers to a state representative. Nevertheless, the state representatives can adequately articulate their positions at the meetings of the Council even if the federal government leads the negotiations (Sturm and Pehle 2012, pp. 95–96). In the case of EU legislation that predominantly affects the states, numerous civil servants from state ministries are also present in the respective committees of the Commission and the Council and can exert their influence there (Beck 2004, p. 3). The Bundesrat was the first parliamentary chamber in the EU to use the subsidiarity objection established in 2009 (Becker 2013, p. 21). In the following years, it only made restrained use of the “early warning mechanism”, which has helped ensure that this instrument remains effective (Hrbek 2016, p. 146). However, most recently, the Bundesrat has become one of an increasing number of European national parliaments to show “a growing interest […] in participating in subsidiarity scrutiny” (European Commission 2022, p. 14). Overall, the cooperative interaction between Bundesrat and Bundestag which is typical for German domestic politics has continued in the field of EU policy. Here, the Bundesrat’s participation rights can prompt the federal government to address demands by the states in advance (Große Hüttmann and Knodt 2003). Nevertheless, the assertion of genuine state interests remains difficult in this context. Particularly since positions by the Bundesrat usually focus on detailed issues about the implementation of EU legislation (Große Hüttmann 2006, p. 211), they often do not express a clear political message that would have a good chance of success at negotiations in the Council of Ministers. Finally, the EU-related interests of the German states tend to be even more heterogeneous than their domestic political interests. When in doubt, the states see “the attempt to ensure their own individual advantage […] within the framework of Europeanisation […] as more significant than the goal of protecting the German federal order from further European unitarisation” (Kropp 2010, p. 169).

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11.4 Conclusion: Effective State Chamber or Instrument of Obstruction? The Bundesrat is a unique institution in the German political system. It consists of members of the state governments, which each have a specific contingent of votes that they can only cast as a bloc. These features make it different from all other parliamentary chambers worldwide. At the same time, it has extensive powers in the legislative process that make it similar to a strong second chamber. Within this constitutional framework, the Bundesrat acts as the institutional representative of state interests on the federal and European level. But it can also be used by the opposition parties in the Bundestag as an instrument to block legislation. Overall, the Bundesrat does not limit the federal system of government’s capacity to act because it participates cooperatively in the legislative process, from the setting of draft legislation to deliberation on that legislation to the passing of this legislation as a law (Kilper and Lhotta 1996, p. 121). In most cases of legislative conflict between Bundestag and Bundesrat, the Mediation Committee has turned out to be an effective clearing house. Political blockades have remained confined to relatively few though significant cases. However, the consensus-democratic arrangements of the Bundesrat also have functional disadvantages. To begin with, they impair the transparency and accountability of policy-making. Since federal laws always require majorities in the Bundesrat, the largest opposition party in the Bundestag usually has a seat at the negotiation table. Therefore, the Federal Republic of Germany is rightly called a “grand coalition state” (Schmidt 2008). Informally, the CDU/CSU and SPD have governed together for most of the time, even when they did not form a joint federal cabinet. German voters may thus have difficulties in assessing who is ultimately responsible for legislative decisions. In addition, the institutionalised pressure for the Bundestag and Bundesrat to cooperate is quite challenging for everyone involved. The federal government constantly needs to organise a majority in the Bundesrat by ensuring the political support of its “affiliated” state governments (R states) and making attractive offers to other state governments. If that is not successful, the only alternative for the federal government is the “auto-limitation” of its policy agenda (Burkhart and Manow 2006). The state governments, on the other hand, need to “balance their conflicted roles as federal and partisan actors” and evaluate “the pros and cons of their decision in each individual case” (Kropp 2010, p. 74).

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Under these circumstances, it is difficult to represent genuine state interests. There is only a broad majority among the states when the defence of the Bundesrat competences is at stake. This is particularly true for EU affairs, where the state governments have successfully fought for participation rights but have since only used them to a limited extent. Societal and political heterogeneity between the states has increased since the 1990s (Chapter 13.1). Thus, the challenges for intergovernmental coordination and the ability to find political compromises have increased as well. Nevertheless, legislative obstruction by the Bundesrat is not expected. This would only arise if the party system were characterised by a “radical conflict orientation” (Schmedes 2017, p. 921)—a scenario that is not very likely right now. Rather, lengthy negotiation processes between the federal and the state governments will continue to be the rule, with the Bundesrat maintaining its core position. Against this backdrop, various reform options for the Bundesrat have been discussed. On the one hand, constitutional change might reduce the number of laws requiring the Bundesrat’s consent and thus limit its veto powers. The federalism reform of 2006 followed this approach, albeit with limited success (Scharpf 2009, pp. 78–83; Chapter 4.2). On the other hand, there have been repeated demands to replace the Bundesrat with a second chamber modelled on the US Senate. The main argument for this is that representatives elected by the people will advocate better for state interests than delegates from state governments (Schmidt 2006; Papier 2007). But even directly elected Bundesrat members would hardly be able to escape the force of party competition, as the examples of the US Senate and the Austrian Bundesrat show (Riescher et al. 2010). Moreover, if state governments with expertise in the implementation of federal laws were removed from the Bundesrat, a central component of “executive federalism” would be absent, which would affect legislative quality. Another idea would be to change the voting rules in the Bundesrat in order to avoid the “passive blocking” created by abstentions of M states. The options would be to count the votes cast (instead of all votes) in cases of legislation requiring consent (Bertelsmann-Kommission 2000, p. 31), to prohibit abstentions (Benz 2004) or to remove the requirement for a unified state vote (Sturm 2009). Alternatively, the voting question could also be reversed: members of the Bundesrat would no longer be asked for their consent but about whether they wished to withhold consent; thus, “abstentions would become de facto yes-votes” (Decker 2011, p. 268). However, these and other reform proposals have one thing in common:

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they would reduce the veto powers of the smaller parties in state governments significantly and thus threaten coalition stability. Therefore, the parties involved would “just come up with new tricks” (Nonnenmacher 2008) to maintain the current practice, even if the formal procedures were changed.

References Beck, K. (2004). Hintergrundinformationen der rheinland-pfälzischen Landesregierung zur Ländermitwirkung in EU-Angelegenheiten in Zusammenhang mit den Reformüberlegungen zu Artikel 23 GG. Berlin: Kommission von Bundestag und Bundesrat zur Modernisierung der bundesstaatlichen Ordnung, Kommissionsdrucksache 34 Becker, P. (2013). Die Subsidiaritätsprüfung in Bundestag und Bundesrat—ein rechtliches oder ein politisches Instrument? Zeitschrift für Politikwissenschaft, 23(1), 5–37. https://doi.org/10.5771/1430-6387-2013-1-5 Benz, A. (2004). Abstimmungsverfahren im Bundesrat. Berlin: Kommission von Bundestag und Bundesrat zur Modernisierung der bundesstaatlichen Ordnung, Kommissionsdrucksache 86 Bertelsmann-Kommission (2000). Entflechtung 2005: Zehn Vorschläge zur Optimierung der Regierungsfähigkeit im deutschen Föderalismus (2nd ed.). Gütersloh: Bertelsmann Stiftung Bundesrat (2021). Die Arbeit des Bundesrates im Spiegel der Zahlen: nach Wahlperioden seit 1949. as of 1 November 2021. Retrieved February 10, 2023, from https://www.bundesrat.de/SharedDocs/downloads/DE/statis tik/gesamtstatistik.html Bundesrat (n.d.). Committee on European Union Questions. Retrieved February 10, 2023, from https://www.bundesrat.de/EN/organisation-en/ ausschuesse-en/eu-en/eu-en-node.html Burkhart, S., & Manow, P. (2006). Kompromiss und Konflikt im parteipolitisierten Föderalismus der Bundesrepublik Deutschland. Zeitschrift für Politikwissenschaft, 16(3), 807–824. https://doi.org/10.5771/1430-6387-20063-807 Decker, F. (2011). Regieren im „Parteienbundesstaat“: Zur Architektur der deutschen Politik. Wiesbaden: VS Eith, U., & Siewert, M. B. (2010). Das „unechte“ Unikat: der Deutsche Bundesrat. In G. Riescher, S. Ruß, & C. M. Haas (Eds.), Zweite Kammern (2nd ed., pp. 97–125). München: Oldenbourg European Commission (2022). Annual Report 2021 on the Application of the Principles of Subsidiarity and Proportionality and on Relations with National Parliaments. COM(2022) 366 final

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Grasl, M. (2016). Neue Möglichkeiten: Die Bundes- und Europapolitik der Länder. In A. Hildebrandt, & F. Wolf (Eds.), Die Politik der Bundesländer (2nd ed., pp. 161–181). Wiesbaden: Springer VS Große Hüttmann, M. (2006). Europapolitik: Spricht Deutschland mit einer Stimme? In R. Sturm, & H. Pehle (Eds.), Wege aus der Krise? (pp. 203–220). Opladen, Farmington Hills: Barbara Budrich Große Hüttmann, M., & Knodt, M. (2003). „Gelegentlich die Notbremse ziehen…“: Die deutschen Länder als politische Teilhaber und Ideengeber im europäischen Mehrebenensystem. Österreichische Zeitschrift für Politikwissenschaft, 32(3), 285–302. https://doi.org/10.15203/ozp.837.vol32iss3 Grotz, F. (2007). Europäisierung und nationale Staatsorganisation: Institutionenpolitik in föderalen und unitarischen EU-Staaten. Baden-Baden: Nomos Harle, I., & Stecker, C. (2011). Die Initiativtätigkeit des Bundesrats im Lichte der Parteipolitisierungsthese. Zeitschrift für Parlamentsfragen, 42(2), 325–334. https://doi.org/10.5771/0340-1758-2011-2-325 Hesse, J. J., & Grotz, F. (2005). Europa professionalisieren: Kompetenzordnung und institutionelle Reform im Rahmen der Europäischen Union. Berlin: Duncker & Humblot Hoffmann, J., & Wisser, M. (2012). Sachverständige Rechtsetzung: Die Ausschüsse des Bundesrats in der Gesetzgebung des Bundes. Zeitschrift für Parlamentsfragen, 43(3), 598–608. https://doi.org/10.5771/0340-17582012-3-598 Hrbek, R. (1986). Doppelte Politikverflechtung: Deutscher Föderalismus und Europäische Integration. Die deutschen Länder im EG-Entscheidungsprozeß. In R. Hrbek, & U. Thaysen (Eds.), Die deutschen Länder und die Europäischen Gemeinschaften (pp. 17–31). Baden-Baden: Nomos Hrbek, R. (2016). Die Rolle der Länder und des Bundesrates in der deutschen Europapolitik. In K. Böttger, & M. Jopp (Eds.), Handbuch zur deutschen Europapolitik (pp. 130–147). Baden-Baden: Nomos Kilper, H., & Lhotta, R. (1996). Föderalismus in der Bundesrepublik Deutschland: Eine Einführung. Opladen: Leske + Budrich Kropp, S. (2010). Kooperativer Föderalismus und Politikverflechtung. Wiesbaden: VS Lehmbruch, G. (1976). Parteienwettbewerb im Bundesstaat. Stuttgart: Kohlhammer Lehmbruch, G. (1998). „A-Länder“ und „B-Länder“: Eine Anmerkung zum Sprachgebrauch. Zeitschrift für Parlamentsfragen, 29(2), 348–350 Lehmbruch, G. (2000). Parteienwettbewerb im Bundesstaat: Regelsysteme und Spannungslagen im politischen System der Bundesrepublik Deutschland (3rd ed.). Wiesbaden: Westdeutscher Verlag Leunig, S. (Ed.) (2009). Handbuch Föderale Zweite Kammern. Opladen: Barbara Budrich

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Lhotta, R. (2000). Konsens und Konkurrenz in der konstitutionellen Ökonomie bikameraler Verhandlungsdemokratie: Der Vermittlungsausschuß als effiziente Institution politischer Deliberation. In E. Holtmann, & H. Voelzkow (Eds.), Zwischen Wettbewerbs- und Verhandlungsdemokratie (pp. 79–103). Wiesbaden: Westdeutscher Verlag Mangold, A. K. (2018). Stationen der Ehe für alle in Deutschland. Retrieved March 23, 2020, from http://www.bpb.de/gesellschaft/gender/homosexua litaet/274019/stationen-der-ehe-fuer-alle-in-deutschland Mannewitz, T., & Rudzio, W. (2022). Das politische System der Bundesrepublik Deutschland (11th ed.). Wiesbaden: Springer VS Merkel, W. (2003). Institutionen und Reformpolitik: Drei Fallstudien zur Vetospieler-Theorie. In C. Egle, T. Ostheim, & R. Zohlnhöfer (Eds.), Das rot-grüne Projekt (pp. 163–190). Wiesbaden: Westdeutscher Verlag Müller, M. M., Sturm, R., Finke, P., & Souris, A. (2020). Parteipolitik im Bundesrat: Der Bundesrat und seine Ausschüsse. Baden-Baden: Nomos Nonnenmacher, G. (2008, November 22). Woran es scheitert. Frankfurter Allgemeine Zeitung, p. 10 Oeter, S. (1998). Integration und Subsidiarität im deutschen Bundesstaatsrecht: Untersuchungen zu Bundesstaatstheorie unter dem Grundgesetz. Tübingen: Mohr Siebeck Papier, H.-J. (2007). Reformstau durch Föderalismus? In D. Merten (Ed.), Die Zukunft des Föderalismus in Deutschland und Europa (pp. 123–136). Berlin: Duncker & Humblot Reus, I., & Zohlnhöfer, R. (2015). Die christlich-liberale Koalition als Nutznießer der Föderalismusreform? Die Rolle des Bundesrates und die Entwicklung des Föderalismus unter der zweiten Regierung Merkel. In R. Zohlnhöfer, & T. Saalfeld (Eds.), Politik im Schatten der Krise (pp. 245–272). Wiesbaden: Springer VS Riescher, G., Ruß, S., & Haas, C. M. (Eds.) (2010). Zweite Kammern (2nd ed.). München: Oldenbourg Scharpf, F. W. (2009). Föderalismusreform: Kein Ausweg aus der Politikverflechtungsfalle?. Frankfurt am Main: Campus Schmedes, H.-J. (2017). Regieren im semi-souveränen Parteienbundesstaat: Die administrativen und politischen Koordinierungsstrukturen in der Praxis des deutschen Föderalismus. Zeitschrift für Parlamentsfragen, 48(4), 899–921. https://doi.org/10.5771/0340-1758-2017-4-899 Schmidt, J. (2006). Strukturelle Alternativen der Ausgestaltung des Bundesrats. Die öffentliche Verwaltung, 59(9), 379–385 Schmidt, M. G. (2008). Germany: The Grand Coalition State. In J. M. Colomer (Ed.), Comparative European Politics (3rd ed., pp. 58–93). London: Routledge

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CHAPTER 12

The Federal Constitutional Court

The Federal Constitutional Court (called the Bundesverfassungsgericht in German; in English, the abbreviation FCC is used) occupies a special position in the German political system. As a “federal court of justice which is autonomous and independent of all other constitutional organs” (Sect. 1, para. 1 BVerfGG), it is part of the judiciary. Therefore, it cannot act on its own accord but only when citizens and politicians appeal to it. At the same time, the FCC is different from ordinary courts, because its interpretation of the Basic Law is final and binding. Hence, its case law limits the parliamentary government’s scope of action and thus strengthens the consensus patterns of German democracy (Lijphart 2012, pp. 214–219). At the same time, it is an important player in the political process due to its “interpretive power” (Vorländer 2006). Against this background, there have been controversial discussions on whether the FCC is an impartial guardian of the constitution that preserves the legal foundations of German democracy or whether it is a sort of “second government ” (Schmidt 1992, p. 46) that proactively influences the political will formation and decision-making. In order to answer this question, Section 12.1 will present the structural characteristics and tasks of the FCC. Section 12.2 will explore its relationship with the federal government and the Bundestag. Section 12.3 will explain the extent to which the FCC still fulfils its role as the supreme © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 F. Grotz and W. Schroeder, The Political System of Germany, New Perspectives in German Political Studies, https://doi.org/10.1007/978-3-031-32480-2_12

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authority of constitutional review in the “Europeanised” political system. Section 12.4 will summarise and discuss selected reform prospects.

12.1

Structural Characteristics and Tasks

The Federal Constitutional Court is part of the judicial branch on the federal level and at the same time is an independent constitutional body reviewing compliance with the Basic Law (Art. 93–94 GG). Its rulings are “binding upon the constitutional organs of the Federation and of the Länder [states], as well as on all courts and those with public authority” (Sect. 31, para. 1 BVerfGG). Thus, it does not primarily protect “the people” or “the state” but rather “the open pluralist society, the opposition and minorities” in the democratic system (van Ooyen 2018, p. 917). The position of the FCC as an “authoritative interpreter of the constitution” (Vorländer 2011, p. 19) is unique in German history (Hailbronner 2015). In the constitution of the German Empire (1871), the Bundesrat was the highest arbitration body. The Weimar constitution (1919) established an authority for constitutional review with the State Court, which was responsible for conflicts of competence between the Reich and the states and for disputes within the states (Säcker 2003, p. 18). In addition, the State Court had to rule on abuses of office by the state president, the chancellor and individual ministers on request by the parliament (Reichstag). Unlike in the Federal Republic of Germany, citizens of the Weimar Republic could not bring a constitutional complaint due to infringements on fundamental rights (Dreier 2019, p. 24). Notably, the FCC was the first to “construct [the constitution] as a permanent and uniform value system” which “provides answers, in principle, to all detailed questions of political-societal daily life” (Abromeit 1995, p. 60). Thus, the FCC has emerged as the supreme supervisory institution in the political system. It thereby embodies the principle of “constitutional sovereignty”, which is particularly pronounced in Germany (Abromeit 1995, p. 49). The supreme authority of the FCC did not exist from the beginning and is not enshrined in the Basic Law. Its institutional structure is not codified in the constitution either (Collings 2015). The members of the Parliamentary Council (1948/1949) merely agreed that the supreme court of the future Federal Republic of Germany should have more farreaching competences than the Weimar State Court. The background to

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this was the insight that, in view of the failed Weimar democracy and the inhumane NS regime, “constitutional review should be enshrined in the constitution and protected from intervention by ordinary laws” (Hesse and Ellwein 2012, p. 550). The institutional structure of the FCC was, however, controversial (Schönberger 2011, pp. 12–16). There were several advocates for a unified supreme court, following the US model, which would be the final authority not just on constitutional issues but also on all legal matters. Others supported a “pure” constitutional court following the Austrian model, which would be located outside the hierarchy of ordinary courts and not be permitted to scrutinise judgements from the highest appellate bodies but would only be able to reverse decisions that violate the fundamental rights of the people affected.1 Eventually, the Parliamentary Council opted for the second model to avoid the creation of a unified “mammoth court”. At the same time, this institutional choice opened the opportunity to distribute the highest bodies of the five court branches among different states (Limbach 2001, p. 19).2 Even after this solution was implemented, the status of the FCC remained rather vague in relation to the highest federal courts but also to parliament and government (Herrmann 2006, p. 145). Unlike the other constitutional bodies, the FCC was not given its own section in the Basic Law but was integrated into the “judiciary” section (Chapter 2.2), which contains general provisions on its competences (Art. 93 GG) and on the election of its members (Art. 94, para. 1 GG). Its internal organisation and procedures and the question of “in which instances its decisions shall have the force of law” (Art. 94, para. 2 GG) are addressed in the Act on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz, BVerfGG), which only came into force in March 1951. Therefore, the FCC was the last constitutional body to begin its work in September 1951. Not long after its foundation, the FCC became an institution with a high degree of autonomy. The most important driver for this was the 1 This model of constitutional review originates from the lawyer Hans Kelsen, who was substantially involved in the making of the 1920 Austrian Constitution. 2 Today, the five highest federal courts are located in the following cities: The Federal Court of Justice responsible for civil and criminal law in Karlsruhe, the Federal Administrative Court in Leipzig, the Federal Social Court in Kassel, the Federal Fiscal Court in Munich and the Federal Labour Court in Erfurt.

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court itself. In 1952, a “memorandum” about the status of the FCC was published, written by Constitutional Court Judge Gerhard Leibholz and supported by most of his colleagues (Leibholz 1957). The memorandum called upon the other constitutional bodies to recognise the organisational and budgetary independence of the FCC. It primarily argued against the oversight by the Federal Ministry of Justice and the incorporation of its judges into the federal civil service. In the end, the Adenauer government accepted the authority of the court (Lembcke 2015). The FCC interprets the fundamental norms of the democratic system based on legal arguments and therefore sits at the “interface of law and politics” (Kneip 2007, p. 217). In order to fulfil this role, it combines institutional characteristics from both worlds to ensure its democratic legitimation and its judicial independence and professionalism at the same time. The democratic legitimation of the FCC is guaranteed by the fact that “half [of] the [16] members of the Federal Constitutional Court shall be elected by the Bundestag and half by the Bundesrat” (Art. 94, para. 1 GG; Fig. 12.1). The Bundesrat elects its constitutional judges by a twothirds majority of votes (Sect. 7 BVerfGG); the candidates are generally nominated by the state prime ministers. The Bundestag elects the judges by secret ballot without debate; a two-thirds majority of the votes cast is required and these two-thirds must at least include a majority of all Bundestag members (Sect. 6, para. 1 BVerfGG). The candidates for FCC judges are nominated by the Judicial Selection Committee (JSC), which consists of 12 MPs. The Bundestag elects the members of that committee upon nomination by the parliamentary groups. Until 2015, the judges were not elected by the Bundestag plenary but by the JSC. This practice was declared permissible by the FCC; however, it was publicly criticised because of its lack of transparency and therefore changed (Schröter 2017). Unlike in the case of the US Supreme Court, no public hearings for FCC candidates are held in the Bundestag or Bundesrat. This is intended to avoid inciting partisan debates about future constitutional court judges that would thus discredit their impartial image. The members of the FCC must comply with some legal requirements to ensure their judicial professionalism. All candidates must have a university law degree (“qualification for the office of judge”) and a certain amount of life experience given that the minimum age for constitutional court judges is 40 (Sect. 3, para. 1 BVerfGG). Furthermore, they can only remain in office until the age of 68 (Sect. 3, para. 1 BVerfGG). In order

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Federal Constitutional Court First Senate

Second Senate

Chief justice (FCC Vice-/President)

Chief justice (FCC Vice-/President)

8 judges

8 judges

Chamber

Chamber

Chamber

Chamber

Chamber

elects FCC Vice-/President by a 2/3 majority (in alternation with the Bundesrat)

elects FCC Vice-/President by a 2/3 majority (in alternation with the Bundestag) elects half of the justices by a 2/3 majority

Bundestag

Chamber

elects half of the justices by a 2/3 majority

Bundesrat

Fig. 12.1 The structure of the Federal Constitutional Court (Source Authors’ compilation)

to ensure that relevant perspectives from the various court branches feed into constitutional judgements, each of the two FCC senates must include at least three former judges of the highest federal courts, who must have served there for at least three years (Sect. 2, para. 3 BVerfGG). In order to guarantee their political independence, FCC judges may not be members of the Bundestag or the Bundesrat or the respective state institutions after their appointment (Art. 94, para. 1 GG). In addition, their term in office is limited to 12 years, and since 1971, re-election has been prohibited (Sect. 4, para. 1 and 2 BVerfGG). The institutional autonomy of the FCC is also expressed in the fact that it is the only supreme federal body not located in the current capital of Berlin (or the previous capital of Bonn) but in Karlsruhe. This physical distance from the location of the government was intended to symbolise the clear

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“separation of law and politics”, which “saw the oversight of politics by independent constitutional review as a guarantee for the stability of a young and by no means consolidated democracy” (Vorländer 2011, p. 17). The Federal Constitutional Court is divided into two senates consisting of eight judges each (until 1963, each senate had twelve judges; Sect. 2 BVerfGG). Therefore, it is also called a “twin court” (Kranenpohl 2010, p. 128). The First Senate is responsible for issues relating to fundamental rights according to Articles 1 to 19 of the Basic Law, while the Second Senate deals with constitutional disputes (Schäller 2006, p. 220). Because of the disproportionately higher number of cases relating to fundamental rights, the actual allocation of individual cases is a little more flexible. The president and the vice president of the FCC chair each of the senates; they are elected by the Bundestag and Bundesrat in an alternating sequence (Sect. 9 BVerfGG; Table 12.1). Moreover, each Senate forms several chambers consisting of three judges (Sect. 15a, para. 1 BVerfGG). These smaller bodies relieve the senates because they deal with cases that “do not raise issues that need clarification of a fundamental nature” (Lenz and Hansel 2015, p. 47). In order to ensure its democratic legitimacy, the FCC must render its decision-making process convincing through reasoned judgements and related discursive communication (Möllers 2011). Generally, a senate decision is prepared by one judge responsible for the case (“rapporteur”). Each judge has four members of staff who draft the remarks and proposals and thus perform a large part of the workload (Zuck 2015, pp. 450–455). At the same time, they contribute to the “plurality of perspectives” by acting as the “judges’ ‘critical sparring partners’ for their own ideas and proposed solutions” (Voßkuhle 2020, p. 8). In important cases, the FCC senates hold oral hearings to provide both sides of the litigation with the opportunity to make their statements and ask independent experts for their assessment. After internal consultation, the court rules by a simple majority of all respective senate members. A two-thirds majority is required in exceptional cases, including the prohibition of a political party (Sect. 15, para. 4 BVerfGG). In the event of a tied vote—four against four—the law stipulates that “the Court cannot declare that the Basic Law or other federal law has been violated” (Sect. 15, para. 4 BVerfGG). This regulation fosters a certain bias towards the legal status quo. The decision-making process within the FCC is subject to strict confidentiality, but the decision itself is issued in a highly transparent manner.

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Table 12.1 Types of proceedings at the Federal Constitutional Court Proceedings

Issue

Basic law article

(1) Preservation of the constitutional legal order Constitutional Violation of basic rights by Art. 93, complaint public authority/ violation para. 1 no. of the right of local 4a and 4b self-government Specific Compliance of ordinary Art. 100, judicial review legislation with the Basic para. 1 Law

Eligible applicants

Any citizen, local governments

Any law court if the respective norm is relevant to a current lawsuit Abstract Compliance of federal and Art. 93, Federal government, judicial review state law with the Basic para. 1 no. 2 state governments, Law/federal law and 2a Bundestag (1/4 of MPs) (2) Maintenance of horizontal and vertical separation of powers Disputes Rights and duties of Art. 93, Federal president, between constitutional institutions para. 1 no. 1 Bundestag, Bundesrat, federal and federal government, parts other organs of these institutions, political parties Disputes Competences within the Art. 93, Federal government, between federal order, esp. para. 1 no. 3 state governments federation and implementation of federal states law by states (3) Protection of the democratic constitution Electoral Compliance of electoral law Art. 41, Persons affected, complaints with higher ranking law para. 2; Art. members of parliament, 93, para. 1 voters, parts of the no. 4c Bundestag Impeachment Dismissal from presidential Art. 61 2/3 majority of of the federal office Bundestag and Bundesrat president Judges’ Dismissal from office/ Art. 98, Bundestag, state indictment transfer of federal or state para. 2 and 5 parliaments judges Forfeiture of Misuse of civil rights and Art. 18 Bundestag, federal fundamental liberties against the liberal government, state rights democratic basic order governments Prohibition of Unconstitutionality of a Art. 21, Bundestag, Bundesrat, political parties political party para. 2 federal government, state governments (in case of parties confined to one German state) Source Authors’ compilation

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It is not only publicly pronounced but also released with a detailed opinion, which is studied in the subsequent academic and political discussion. Since 1971, each judge may add a dissenting opinion to the senate’s ruling (Sondervotum; Sect. 30, para. 2 BVerfGG). This explicit documentation of minority positions not only allows the public to draw conclusions about controversies within a senate but can also indicate aspects of the FCC’s interpretation of the Basic Law that may change in the future. The option of issuing a dissenting opinion is also relevant for intra-court decision-making, since even announcing it can “discipline” the other members of the senate and therefore contribute to a more inclusive and balanced judgement (Voßkuhle 2020, p. 8). Like all courts, the FCC only takes action on applications. Therefore, the question of who may appeal to the FCC is essential for assessing its position in the German political system. The Basic Law provides a broad range of FCC proceedings, which can be grouped into three categories depending on their goals (Table 12.1). The first group of proceedings aims at the preservation of the constitutional legal order. Here, the main issue is whether ordinary legal norms (e.g. laws and regulations) and their application comply with the Basic Law. The relevant proceedings include the constitutional complaint, which enables every citizen to appeal to the FCC if they feel that one of their fundamental rights has been infringed by a public authority (Art. 93, para. 1 no. 4a and 4b GG). These cases dominate the work of the FCC numerically: between 1951 and 2021, a total of 245,310 constitutional complaints were filed, amounting to 96.4% of all suits brought to the court (BVG 2022, p. 51). However, the FCC has only accepted a tiny share of constitutional complaints: their average success rate over the last ten years was 1.9% (BVG 2022, p. 41). The specific judicial review also aims to preserve the legal order compliant with the Basic Law (Art. 100, para. 1 GG). It usually starts during an active court case in which the judges deem a federal or state law unconstitutional. In this case, the respective court is obliged to suspend the proceedings and send the matter to the FCC. Between 1980 and 2020, there were rarely more than 80 such judicial referrals per year, with the numbers trending downward in this period (BVG 2021a, pp. 28–29), because the requirements that the reasoning by the referring court has to meet are very high. Nevertheless, the success rate of judicial referrals is much higher than that of constitutional complaints.

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Abstract judicial review also concerns constitutional scrutiny of legislation but it does not have to be connected to a concrete legal dispute (Art. 93, para. no. 2 and 2a GG). All institutions participating in the legislative process are entitled to apply for such a review, i.e. the federal government, the state governments (via the Bundesrat) and the Bundestag (provided at least a quarter of its members request it). This latter provision is particularly significant, since it also allows a (qualified) parliamentary minority to bring a case against a law already passed by the parliamentary majority. Although only a few cases of abstract judicial review are brought every year, they are usually on highly controversial issues. At the same time, abstract judicial review strengthens the FCC’s power of interpretation, since federal and state governments seek to make their draft legislation “constitutional-review-proof” in view of previous rulings by Karlsruhe (Voigt 2015, p. 76; Section 12.2). Constitutional complaints, abstract judicial reviews and specific judicial reviews may lead to the annulment of a law. Although the FCC is not permitted to pass a new law in replacement, it may issue detailed transitional regulations that apply until the law is revised. Since these regulations by the FCC are definitely constitutional, legislators may find it attractive to take them up “one by one” (Rath 2013, p. 53). There are two further types of legal proceedings that can serve to maintain the horizontal and vertical separation of powers. The first of these concerns disputes over political and administrative competences, which may arise repeatedly in a federal system like Germany with its nuanced distribution of powers. Typical cases include disputes between federal institutions relating to the horizontal distribution of powers as well as disputes between the federation and the states in which the vertical distribution of powers is at issue (Art. 93, para. 1 and 3 GG). The respective federal and state organs can thereby protect their areas of authority from interference. Constitutional conflicts relating to the vertical separation of powers can also have “partisan undertones”, for instance, when state governments composed of parties that are in opposition at the federal level bring a case against federal interference. The same applies to disputes between federal institutions, as they can also be initiated by the minority groups in the Bundestag and by parties in opposition. Between 1951 and 2020, there were 4,818 proceedings in both categories (BVG 2021b). Finally, the FCC is responsible for a number of specific legal matters whose purpose is to protect the workings of the democratic constitution. The scrutiny of elections and seat allocation according to Article 41, paragraph

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2 of the Basic Law relates to the constitutionality of the composition of the Bundestag, the compatibility of electoral regulations with higher ranking law and their lawful application. Although electoral appeal is the primary responsibility of the Bundestag, complaints against its decisions are admissible from members of parliament, voters and parliamentary groupings. The FCC can declare a complete federal election invalid, although this has never happened so far (Chapter 5.1). Moreover, Article 61 of the Basic Law makes provisions for the impeachment of the federal president because of illegal behaviour and thus remove her from office. However, two-thirds majorities in the Bundestag and the Bundesrat are required to initiate such a proceeding, which has never happened so far (Chapter 10.4). Furthermore, the FCC can rule to dismiss federal judges or state judges from office or to transfer them to another position if they have violated the constitutional order (Art. 98, para. 2 and 5 GG). This type of proceeding can only be initiated by the respective parliaments (Bundestag or state parliament). In the case of state judges, state constitutions may foresee deviant regulations. In addition, a two-thirds majority in the FCC is required to dismiss a judge; this high threshold is one of the reasons why this procedure has never been applied so far. The FCC can also deprive individual citizens of their civil liberties if they have misused them to combat the free democratic basic order (Art. 18 GG). The very few cases of this sort were all rejected by the FCC. Finally, there is a proceeding that can be particularly controversial in a representative democracy. According to Article 21, paragraph 2 of the Basic Law, the FCC can declare political parties unconstitutional if they “by reason of their aims or the behaviour of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany”. The bodies entitled to initiate this party ban proceeding include the Bundestag, Bundesrat, the federal government or a state government (if the party in question is only located in the respective state; Sect. 43 BVerfGG). The historical background to this regulation was the destruction of the Weimar democracy by the National Socialist Party. Nevertheless, a party ban can only be a measure of last resort, since it interferes immensely with free political competition. In its most recent decision on the matter in 2017, the FCC considered the National Democratic Party of Germany (Nationaldemokratische Partei Deutschlands, NPD) unconstitutional but refrained from ordering its dissolution since it did not see any indications that the right-wing extremist party would achieve its goals (Chapter 6.1).

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Overall, the FCC has powerful competences in judicial review. However, the extent to which the constitutional judges influence democratic policy-making depends on the political actors’ propensity to sue as well as on how broadly the FCC interprets its mandate to decide on politically contested issues.

12.2

The Federal Constitutional Court in Action: Between Politicisation and Judicialisation

Whenever the FCC rules on the constitutionality of legal norms, it undertakes an interpretation of the Basic Law and declares this interpretation binding. Since constitutional provisions contain rather general propositions that are sometimes imprecise and may even contradict each other, the judges must find suitable standards to base their decisions on. Therefore, any judicial review tends to prompt the development and specification of the constitutional framework by virtue of the court’s interpretation. An “intrusion of judicial power into the legislative sphere” (BVerfGE 1, 396, 409) cannot always be entirely avoided. Therefore, the FCC must perform a delicate balancing act between law and politics. On the one hand, its image as a neutral arbiter will be affected if its judgements are perceived as influenced by political positions (politicisation). On the other hand, its function as guardian of the constitution may also be compromised if it practises too little self-restraint in its rulings, which might unduly restrict the scope of action for the parliamentary majority ( judicialisation; Stone Sweet 2000). The extent to which the FCC has succeeded in pulling off this balancing act reveals itself in the selection of its judges and in its case law. There have been repeated discussions on whether FCC judges base their rulings exclusively on legal criteria or if their socio-political positions also play a role, especially when clear normative standards are absent. Due to the confidentiality of the internal decision-making processes, it is nearly impossible to identify the voting behaviour of individual judges. Therefore, the selection of the FCC members is of great significance. A politically balanced composition should provide the court with a broad democratic legitimacy and ensure that partisan influences on its decisions will be “tamed in conformity with the constitution” (Preuß 1988, p. 389).

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Initially, the selection of FCC judges led to severe political controversies (Herrmann 2006, p. 147). By the mid-1950s, the Christian Democratic Union/Christian Social Union (CDU/CSU) and Social Democratic Party (SPD) agreed to divide the right to nominate FCC judges equally between themselves. Retiring judges nominated by the CDU/CSU were replaced by successors from their camp, supported by the SPD. The same applied conversely for the judicial positions filled by SPD nominees. This practice was based on the condition that both parties jointly held two-thirds majorities in the Bundestag and Bundesrat and therefore would meet the constitutional quorum for the election of judges. Occasionally, the CDU/CSU and SPD also left it to their respective coalition partners—the FDP or the Greens—to replace individual judges. This informal consensus between the two catch-all parties not only led to a far-reaching depoliticisation of judge selection but also had the effect that most FCC rulings reflected the “balance of moderately conservative and moderately progressive judges” (Kielmansegg and Gschwend 2018, p. 7). This “centripetal” logic of the court composition also became apparent in the occasional vetoes against individual nominations. In 1993, for instance, the candidature of the SPD Bundestag member and later Federal Minister of Justice Herta Däubler-Gmelin for the position of FCC judge failed because the CDU opposed her election (Engst et al. 2020, p. 40). Yet, in view of the increasing fragmentation of the German party system (Chapter 6.2), the decades-old practice of selecting judges is under pressure. In 2016, the state prime ministers of the CDU/CSU, the SPD and the Greens agreed that every fifth constitutional judicial position in the Bundesrat would now be selected by the Greens since they have a blocking minority in the Bundesrat (Rath 2018). If further parties, such as the FDP, were able to prevent a two-thirds majority in the Bundestag or Bundesrat and therefore demand their own nomination rights (Müller 2022), it could lead to further pluralisation but also a further politicisation of the court (Kielmansegg and Gschwend 2018). Apart from political affiliations, the professional background of the FCC judges is crucially important for the quality and impartiality of their rulings (Landfried 2015). The professional biographies of the FCC presidents are indicative of significant changes in this respect (Table 12.2). Initially, many constitutional court judges had held positions in private businesses and interest associations and even occupied parliamentary seats and government offices before becoming FCC judges. By now, judges

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with professional experience in business and politics—among them the current FCC president, Stephan Harbarth—are in the minority. Vice versa, the proportion of university professors has increased significantly. At the end of 2022, they held eight of the ten positions that are not reserved for former judges from the highest federal courts. This homogenisation of professional backgrounds has prompted diverse responses. Some observers fear a precarious “narrowing” of the FCC’s jurisprudence (Landfried 2015, p. 383), while others see the close integration of the “professorial judges” into the “jurisprudential discourse” as an advantage (Voßkuhle 2020, p. 8). Either way, the FCC is by now the most progressive constitutional body regarding gender parity: while one of 24 judicial positions was filled by a woman in 1951, nine of the 16 constitutional judges were women at the end of 2022. The political relevance of the FCC manifests primarily in its case law. Since the 1950s, it has made path-breaking decisions on central issues of the democratic order and on numerous regulations in various policy fields (Grimm 2019). We will illustrate this broad and profound practice of constitutional review with some appropriate examples. In issues of the liberal democratic order, the FCC has had to decide repeatedly on competence conflicts between the federation and the states. Seminal decisions include the judgement on the revision of the fiscal equalisation scheme of 1999 (BVerfGE 101, 158; Chapter 4.2) or the ruling on “junior professorships” of 2004, which limited the legislative powers of the federal level in higher education (BVerfGE 111, 226). On various occasions, the FCC has also had to arbitrate in controversies between the federal government and the opposition, such as when the Bundestag was dissolved by a “fake” vote of confidence in 1983 and 2005 (BVerfGE 62, 1, BVerfGE 114, 121; Chapter 9.2). In addition, electoral provisions have often been on the agenda of the court. Relevant rulings include the verdict against the “negative voting weight” of 2008, which required a reform of the Bundestag electoral system (BVerfGE 121, 266; Chapter 5.1), and the decision of 2014 to abolish the legal threshold at the European elections (BVerfGE 135, 259; Chapter 5.3). Furthermore, the party bans against the right-wing extremist Socialist Reich Party (Sozialistische Reichspartei) in 1952 and the left-wing extremist Communist Party of Germany (Kommunistische Partei Deutschlands ) in 1956 were of particular significance for the young West German democracy (BVerfGE 2, 1, BVerfGE 5, 85). Two later proceedings against the NPD in 2003 and 2017 did not lead to a prohibition of this right-wing

CSU CDU CDU

1954–1958 1958–1971 1971–1983

1983–1987 1987–1994

1994–2002 2002–2010 2010–2020 2020–

Wolfgang Zeidler Roman Herzog

Jutta Limbach Hans-Jürgen Papier Andreas Voßkuhle Stephan Harbarth

– – – MdB

– MdL

MdL (PR), MdRT, MdB – MdL, MdB MdL, MdB

Parliamentary experience

– PM (BW) StS (Bund) FM – StS (RP) LM (BW) LM (BE) – – –

SM (PR)

Government experience

Yes Yes Yes –

– Yes

– – –

–

University professor

– – – Lawyer

Judge –

Judge

Judge

Legal profession

Source Authors’ compilation Notes a Nominated by the SPD. Abbreviations: MdB = member of the Bundestag; MdL = member of a state parliament; MdRT = member of the Reichstag (until 1932); FM = federal minister; SM = state minister; StS = state secretary; PM = prime minister of a state; BE = Berlin; BW = Baden-Württemberg; RP = Rhineland-Palatinate; PR = state of Prussia (until 1932)

SPD CSU Independenta CDU

SPD CDU

FDP

1951–1954

Hermann Höpker-Aschoff Josef Wintrich Gebhard Müller Ernst Benda

Party membership

Time in office

Name

Table 12.2 Presidents of the Federal Constitutional Court (1951–2022)

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extremist party (BVerfGE 107, 339; BVerfGE 144, 20; Chapter 6.1). Finally, the FCC also emerged as a guardian of media freedom by stopping “Germany TV” initiated by Chancellor Adenauer in 1961 (BVerfGE 12, 205) and by defining standards for press freedom in 1966 after the “Spiegel affair” (BVerfGE 20, 162; Chapter 8.1). The FCC also had a crucial influence on the international dimension of German politics. Early milestones included the controversy around the rearmament of the federal republic in the 1950s, in which the court took a very distinct position from the Adenauer government (Lembcke 2015, pp. 236–238), and the judgement on the Basic Treaty in 1973. In the latter, the FCC declared the recognition of the GDR as a sovereign state constitutional but also pointed to the requirement to strive for the reunification of both German states (BVerfGE 36, 1). Its more recent decisions in this field include the ruling on Bundeswehr deployments outside the NATO territory of 1994, which are in conformity with the Basic Law provided there is prior approval by the Bundestag (BVerfGE 90, 286; Chapter 9.2). The FCC rulings on European integration have been no less impactful (Section 12.3). Moreover, the FCC has reviewed numerous legal regulations in diverse areas of domestic policy. These decisions have had a significant impact even far beyond the actual issues. For instance, the “pharmacy judgement” of 1958 not only regulated the freedom of establishment for pharmacists but also set general standards for the interpretation of occupational freedom as stipulated in Article 12 of the Basic Law (BVerfGE 7, 377). In 1990, the court mandated equal notice periods for manual and office workers (BVerfGE 82, 126). The principle of equality, enshrined in Article 3, paragraph 1 of the Basic Law, was also the point of reference for many further FCC decisions, such as the judgements on the unconstitutionality of the wealth tax, which unduly treated different asset components differently (1995; BVerfGE 93, 121), or on the introduction of “tax splitting” for gay couples (2013; BVerfGE 133, 377). Furthermore, based on fundamental rights and the social state principle, the FCC derived the necessity for a minimum subsistence income. Rulings based on this normative standard include the introduction of a tax-free income threshold in 1992 (BVerfGE 87, 153), higher child allowances for married parents in 1998 (BVerfGE 99, 216) and the increase of welfare benefit rates (“Hartz IV”) in 2010 (BVerfGE 125, 175). Another impactful legal construct introduced by the FCC is the “right to informational self-determination”, which was first developed in its “census ruling” of 1982. Accordingly,

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everyone has the right to determine which personal data is disclosed and how it is used (BVerfGE 65, 1). This basic right to data protection, though not directly mentioned in the Basic Law, became the reference point for significant rulings in the fields of domestic security and data protection, such as on the limitation of online investigations in 2008 (BVerfGE 120, 274), the retention of telecommunication data in 2008 (BVerfGE 121, 1) or the establishment of an anti-terrorist data base in 2013 (BVerfGE 133, 277; Bull 2015). In view of these and many other consequential rulings, it is no wonder that the jurisprudence of the FCC has occasionally met with criticism (Collings 2019). For example, a severe conflict about the Basic Treaty with the GDR broke out between the SPD-FDP government under Willy Brandt and the First Senate under former CDU Federal Minister Ernst Benda, which brought the “Federal Republic of Germany to the edge of a […] constitutional crisis” (Grigoleit 2015, p. 246). In the mid-1990s, two controversial FCC decisions ignited heated public debates (Schaal 2015). The first of these decisions was the “soldiers are murderers” judgement of 1995. In this case, the plaintiff had been convicted of slander by an ordinary court because he had put a sticker with the Tucholsky quote “soldiers are murderers” on his car. The FCC overruled this sentence, pointing to the freedom of opinion granted in the Basic Law (Art. 5, para. 1 GG; BVerfGE 93, 266). Another FCC decision in 1995 was similarly controversial. In this case, it annulled a provision in the Bavarian school law according to which every classroom had to be furnished with a Christian cross, because this did not comply with the religious freedom granted in Article 4, paragraph 1 of the Basic Law (BVerfGE 93, 1). Several public protests occurred in the aftermath of this “crucifix ruling”, and a few Bavarian politicians even demanded defiance against the court’s decision (Schaal 2015, p. 261). However, these and other controversies were rather rare and short-lived legitimacy crises of the FCC. They had no influence on the consistently high esteem in which the Germans hold their supreme court (Patzelt 2015; Vorländer and Brodocz 2006). Besides the social trust enjoyed by the FCC, there is also a connection between public opinion and its decisions. Sternberg et al. (2015) demonstrate with data on abstract judicial reviews from 1974 to 2020 that the FCC is more likely to accept a complaint by the parliamentary opposition if the complaint is supported by a large part of the general population. This does not mean that the constitutional judges base their decisions on public opinion data. Nevertheless, this research shows that

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the commonly held view of the FCC as a purely judicial institution is not borne out by reality. Judicial review always takes place in a social context and therefore interprets constitutional provisions against the background of changing socioeconomic structures and sociocultural values. By considering the social context in its jurisprudence, the FCC safeguards its high legitimacy and solidifies its power “to assert its own decision, if necessary, even against the will of the parliamentary majority” (Sternberg et al. 2015, pp. 591–592). The public relations activities of the FCC serve the same goal (Kranenpohl 2010, pp. 253–330; Masing 2019). The court is clearly aware “that it can only defend its strong position with the assistance of the public and the media” (Rath 2015, p. 404). Therefore, current and former judges frequently voice their opinions on general constitutional issues or specific rulings in public speeches and interviews. In doing so, they can give political actors important pointers for future legislative work and promote societal support for the court’s work. Since the decisions by the FCC meet with broad support in German society, they can have a strong influence on democratic policy-making. Its political power primarily rests on the possibility for the parliamentary minority to initiate abstract judicial reviews and thus to subject laws passed by the government majority to constitutional scrutiny. Since the FCC always has scope for discretion, which it can also use against a law that has already been enacted, the option of “going to Karlsruhe” is among the most effective instruments of the parliamentary opposition. An abstract judicial review can have more impact than all the interpellation rights in the Bundestag (Chapter 9.2). Sometimes, it may even suffice to “virtually go to Karlsruhe”—which occurs when a potential constitutional complaint is brought up by the opposition or anticipated by the government. Therefore, the federal government often incorporates opposition concerns that could become constitutionally problematic into its draft legislation or seeks to make such legislative proposals “FCC proof”. This ex ante effect of abstract judicial reviews also explains why it has been quite impactful despite their rather limited number (Stüwe 2015, pp. 362–364). Overall, the threat of judicial review also enhances the consensus democracy character of the German political system. Nevertheless, there is a certain risk that politically motivated appeals to the FCC and its related rulings could lead to a mutual escalation (Stone Sweet 2000). If political actors frequently make constitutional complaints, this will lead to the court issuing more interpretations of

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the Basic Law, which will tend to narrow the constitutional framework for political action and also increase the incentive for new appeals by the parliamentary minority with the aim of defeating the government. This could prompt the emergence of a vicious cycle between a politicisation of constitutional review and a judicialisation of politics that can only be avoided if both sides practise a certain amount of self-restraint. More concretely, if the parliamentary opposition only goes to Karlsruhe in exceptional, well-founded cases, this limits the field of action for FCC judges from the outset. Vice versa, the court should also stick to its selfarticulated principle of judicial restraint by deliberately refraining from “interference in the space of free policy shaping created and limited by the constitution” (BVerfGE 36, 1, 14). By and large, the FCC has succeeded in keeping the balance between productive interpretation of constitutional law and judicial self-restraint in its more than 70 years of existence (Kneip 2009; Kranenpohl 2010; Vorländer 2006).

12.3 Constitutional Review in the European Multi-Level System The FCC is the supreme body of judicial review for the order of the Basic Law. At the same time, it is part of a constitutional multi-level system, which includes the constitutions of the German states and the primary law of the European Union (Chapter 2.3). There are also supreme courts on these other levels, which are responsible for constitutional issues and with whom the FCC maintains cooperative relationships. These include the constitutional courts of the German states, some of which were established even before the Basic Law came into effect. Apart from some institutional specificities, their basic structure is similar to that of the FCC (Chapter 13.2). The German federal order has a clear hierarchy of norms, which also determines the division of labour between the constitutional courts (Art. 31 GG; Chapter 4.1). The FCC assesses whether legal acts, including state legislation, comply with the Basic Law. By contrast, the state constitutional courts only deal with disputes in the realm of autonomous state powers, such as competence infringements of the state parliament or violations of the right to local self-government. Although the constitutional realms of the federal level and the states are “interlocked and interwoven in many ways” (Reutter 2017, p. 3), there is neither an institutional competition between the FCC and the state constitutional courts nor have there ever been serious conflicts between them.

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The relationship between the FCC and the European Court of Justice (ECJ) is much more difficult and complex.3 The main cause of this strained relationship lies in their different ideas about the European constitutional order (Lhotta and Ketelhut 2015). Since the 1960s, the ECJ has emphasised the immediate applicability and primacy of European law (Chapter 3.2). According to this perspective, European integration has created a supranational constitutional order where national law not compatible with EU law may not be applied. The ECJ is therefore the highest body of appeal regarding conformity with supranational legislation (Stone Sweet 2000, p. 160). All national courts—including constitutional courts—may request an ECJ ruling if they encounter difficulties in the interpretation of EU law (Art. 267 TFEU). In contrast, the FCC proceeds from the idea that the member states have only transferred the specific powers to the EU that are explicitly mentioned in the European treaties (principle of conferral). According to this perspective, the national laws ratifying the European treaties form a “bridge” over which “competences held by the member states migrate into the realm of EU law and are implemented there” (Lhotta and Ketelhut 2015, p. 849). If the EU were to exceed the competences transferred to it (“ultra vires ”), it would be violating the constitutional framework. Therefore, the FCC may take EU-related decisions of different kinds (Sturm and Pehle 2012, pp. 135–136). First, it can examine the compliance of the activities of German representatives at EU level with the Basic Law, for example, the behaviour of a federal minister in the EU Council. The FCC cannot invalidate a decision by the Council after the fact through its ruling, but it can erect “barriers against similar violations of the constitution in future” (Sturm and Pehle 2012, p. 136). Nevertheless, no such court case has arisen to date. Second, citizens who see their fundamental rights protected by the Basic Law and violated by EU law can initiate a constitutional complaint before the FCC. Third, a German court can initiate a specific judicial review in order to ascertain whether an EU regulation conforms to the Basic Law in a pending case. Hence, the FCC claims a general right to scrutinise EU law, including the regulations of the European treaties and their implementation (primary legislation). This self-empowerment of the FCC has given rise to 3 In addition, there is also the European Court of Human Rights (ECHR) that oversees the European Convention of Human Rights within the framework of the Council of Europe. About the relationship of the FCC with the ECHR, see Kranenpohl (2013).

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a structural conflict of competences with the ECJ, since the latter ultimately decides on “the interpretation of the treaties” (Art. 267 TFEU). The more constitutionalised the EU becomes and the more competences it receives, the more difficult it is for the FCC to maintain its review powers without blocking further integration. This dilemma has been apparent in various decisions of the FCC on EU matters, which we will present in more detail now (Table 12.3). While the ECJ determined the immediate applicability and primacy of European law in the early 1960s (“Van Gend and Loos” 1963; “Costa/ ENEL” 1964; Chapter 3.2), the FCC defined its relationship to the supranational legal order for the first time in its “Solange I” ruling of 1974 (Kranenpohl 2013, p. 91). In this case, an administrative court asked for specific constitutional review of a pending lawsuit, where the plaintiff claimed that their fundamental rights had been violated by an EEC agricultural regulation. The FCC confirmed the constitutionality of the supranational regulation and thereby agreed with the ECJ. At the same time, it retained the option to scrutinise European law for conformity with the Basic Law at least “as long as” (solange in German) European law does not “contain a valid catalogue of fundamental rights passed by a parliament, which is equal to the catalogue of fundamental rights in the Basic Law” (BVerfGE 37, 271). This strong claim to have the option to review the violation of fundamental rights was reversed by the FCC in 1986, when it rejected a constitutional complaint brought by a mushroom import company in the “Solange II ” decision. Since the ECJ had substantially extended its jurisdiction on fundamental human rights before, Karlsruhe was now willing to give up its examination of European legislation “as long as the European Communities, particularly the judgements of the ECJ, guarantee an effective protection of fundamental rights in general” (BVerfGE 73, 339, 340). A further seminal decision of the FCC on European affairs took place in a case against the ratification act of the Maastricht Treaty. In this ruling, it declared the far-reaching amendments to EU primary legislation in conformity with the Basic Law but again emphasised its competence to review EU law. Unlike the “Solange” decisions, the Maastricht ruling was less about fundamental rights but more about the EU as a “union of states” (Staatenverbund), whose legislative powers must not be expanded beyond the sovereign rights transferred by the ratification act (Folz 1999). Since the ECJ adhered to the principle of conferral and the FCC showed “a rather ‘pragmatic’ way of dealing with issues of EU law”

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Table 12.3 Seminal decisions by the FCC on European integration Issue

Year

Source

Main content

EEC regulation on agriculture (“Solange I”)

1974

BVerfGE 37, 71

Import of preserved mushrooms (“Solange II”)

1986

BVerfGE 73, 339

Treaty of Maastricht

1993

BVerfGE 89, 155

Introduction of the Euro

1998

Banana market regulation

2000

BVerfGE 97, 350 BVerfGE 102, 147

Treaty of Lisbon

2009

BVerfGE 123, 267

Temporal limit of employment contract (“Honeywell”)

2010

BVerfGE 126, 286

Financial aid to Greece and EFSF

2011

BVerfGE 129, 124

European Financial Stability 2014 Facility

BVerfGE 135, 317

European Arrest Warrant (EAW) ECB OMT programme

2015

BVerfGE 140, 317 BVerfGE 142, 123

ECB PSPP programme

2020

BVerfGE 154, 17

EU Own Resources Decision

2022

BVerfGE 157, 332

Unsuccessful appeal: FCC claims competence of scrutiny of EEC law relating to fundamental rights Unsuccessful appeal: FCC suspends scrutiny in view of effective protection of fundamental rights by ECJ Unsuccessful appeal: FCC claims oversight in cases of competence violation by the EU Unsuccessful appeal: constitutional complaint “obviously unfounded” Unsuccessful appeal: Extended obligation to state reasoning in cases of violations of fundamental rights by EU law Unsuccessful appeal: FCC claim to scrutiny of competence violation by the EU and preservation of “constitutional identity”, “responsibility for integration” of the federal institutions Unsuccessful appeal: Confirmation of the “Mangold” decision of the ECJ and the high barriers to an”ultra vires” scrutiny Unsuccessful appeal: Upper debt limit, budgetary responsibility of the Bundestag Unsuccessful appeal: Confirmation of the 2011 ruling, broad discretion by federal government and Bundestag Successful appeal: Specification of constitutional “identity control” Unsuccessful appeal: Confirmation of the ECJ decision “in spite of serious concerns” Successful appeal: Lack of transparency of proportionality of the programme Unsuccessful appeal: No violation of democratic self-determination and of the Bundestag budgetary responsibility

2016

Source Authors’ compilation based on Sturm and Pehle (2012, p. 153)

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(Lhotta and Ketelhut 2015, p. 857), no open conflict between the two courts occurred in the ensuing period. In 1998, the FCC rejected two constitutional complaints against the introduction of the euro currency without specifically emphasising its EU-related oversight competences. Two years later, it rejected a complaint brought by German businesses against the new regulation on the EU banana market by demanding detailed reasoning underpinning alleged infringements of the Basic Law by EU legislation (Lhotta and Ketelhut 2015, p. 859). At the same time, the FCC repeated its argument of the Maastricht ruling, according to which the protection of fundamental rights by the Basic Law had precedence in the event of doubt (Sturm and Pehle 2012, p. 143). In view of this, the next conflict with the ECJ was almost inevitable. The ruling of the FCC of June 2009 on several constitutional complaints against the Treaty of Lisbon attracted particular attention. The judges in Karlsruhe again declared this reform of EU primary legislation as conforming to the Basic Law, but they also repeated their claim to be entitled to further scrutinise competence infringements by EU institutions (“ultra vires control”). Moreover, they prohibited a “transfer of competence-competence” to the EU and outlined an “inviolable core content of the constitutional identity of the Basic Law” that had to be protected by the “responsibility for integration” of the German parliament (BVerfGE 123, 267). In this way, the FCC came back with “a big drum roll” as an oversight body of EU legislation. The tone of this judgement was characterised by “distrust of the rampant dynamic of the integration process and a sceptical hope for a […] scrutinising responsibility of Bundestag and Bundesrat, reining in integration” (Auberger and Lamping 2013, pp. 89–90). Karlsruhe’s subsequent decisions on EU legislation pointed in different directions. On the one hand, the FCC confirmed a previous ruling by the ECJ on a temporal limit to employment contracts in its “Honeywell” decision of 2010. At the same time, it emphasised the high procedural hurdles for scrutiny of infringements by EU institutions. On the other hand, the FCC upheld a constitutional complaint against the extradition of a suspect to Italy in its second decision about the European Arrest Warrant of 20154 since it violated the human dignity enshrined in Article 1, paragraph 1 of the Basic Law (Schorkopf 2016). 4 The first ruling of the FCC on the European Arrest Warrant of 2005—also known as Darkazanli ruling—is not presented here in detail because of space restrictions (BVerfGE 113, 273).

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Faced with the economic and financial crisis of 2008 and the looming state bankruptcy of Greece, the EU governments and the European Central Bank (ECB) decided to supply enormous financial aid and support measures (Chapter 3.1). These EU programmes led to a wave of FCC lawsuits. Only the most important of these rulings can be mentioned here (Table 12.3; for more details see Hufeld 2018 and Hufeld 2022, 163–179). In a judgement of 2011, the FCC rejected constitutional complaints against the aid for Greece and the establishment of the European Financial Stability Facility (EFSF) but prohibited the Bundestag from transferring its budgetary responsibility and defined an absolute upper limit for the absorption of debts and guarantees (Huber 2014, pp. 53–54). The judgement on the European Stability Mechanism (ESM ) of 2014 essentially confirmed the previous ruling and allowed the federal government and the Bundestag a “wide margin for assessment” in this respect (BVerfGE 135, 317, 175). Moreover, the FCC also dealt with the Outright Monetary Transaction (OMT) Programme, under which the ECB can buy unlimited short-term loans from EU countries. The judgement relating to this issue had a special history because the FCC decided to submit the case to the ECJ for a preliminary decision and thus to subject itself to the ruling of the ECJ for the first time. After the ECJ rejected the case, Karlsruhe followed its judgement “in spite of grave concerns” (BVerfGE 142, 123, 175). The FCC judgement of 5 May 2020 caused a stir by declaring the Public-Sector Purchase Programme (PSPP)—which aimed at purchasing public sector securities on the secondary markets—unconstitutional (Grimm 2020; Hufeld 2020). In essence, the FCC judges reprimanded the ECB on the grounds that it had not provided sufficient evidence for the proportionality of the programme but also accused the ECJ of not having taken the economic competences of the member countries sufficiently into account in its positive ruling on the public-sector purchase programme. Therefore, the German Central Bank was prohibited from participating in the PSPP if the ECB did not provide a transparent explanation of the goals of this measure within the following three months. This decision received a lot of criticism, not just from parts of the German public but also from EU institutions. Immediately after the pronouncement of this judgement, the EU Commission declared it would consider bringing a case of infringement of EU treaties against Germany. This acute conflict was deescalated relatively quickly and pragmatically. After the German Central Bank passed on explanatory documents regarding

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the PSPP programme by the ECB Council to the federal government and the Bundestag, the Bundestag decided in July 2020 that the clarification by the ECB met the demands of the Karlsruhe ruling. This way, the parliament, which held the appropriate authority over integration legislation, had upheld its responsibility “without questioning the independence of the ECB” (Hufeld 2020, p. 337). Subsequently, two further cases in this context were brought before the FCC in which the federal government and the Bundestag were accused of having failed to ascertain the proportionality of the PSPP. The court rejected both applications as inadmissible and unfounded on 28 April 2021, stating that both institutions had fulfilled their obligations within appropriate time (FCC Press Release No. 38/2021). On 6 December 2022, the FCC rejected two constitutional complaints directed against the act ratifying the EU’s Own Resources Decision (ORD), which authorised the European Commission to borrow up to e750 billion on capital markets for the recovery instrument Next Generation EU. Despite the huge amount of debt, the court ruled that the ORD did not violate the complainants’ right to democratic self-determination nor affect the overall budgetary responsibility of the Bundestag (FCC Press Release No. 103/2022). To sum up, the supranational process of European integration, accompanied by the case law of the ECJ, has substantially limited the FCC’s powers for judicial review. In order to maintain its influence within the constitutional multi-level system, Karlsruhe has attempted, “on the one hand, to insist on the primacy of national sovereignty—and thus its own oversight competence—and, on the other hand, to link further steps of integration with a comprehensive parliamentary participation” (Kranenpohl 2013, p. 103). The actual development towards a European financial union, accelerated during the COVID-19 crisis, has made it increasingly difficult for the FCC to continue this balanced strategy.

12.4 Conclusion: Impartial Guardian of the Constitution or Political Player? The FCC is a central institution in the German political system. It has resolved numerous disputes on the political order through its rulings and has set important milestones in almost every policy area. In so doing, it has proven to be a “guarantor of constitutional stability” (Hesse and Ellwein 2012, p. 549) and contributed substantially to the workings of German democracy (Kneip 2009; Stolleis 2011). Although its rulings

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have frequently been criticised and have triggered controversial discussions, the FCC enjoys a high level of popular acceptance (Patzelt 2015). Since it has the final say on constitutional issues, it is the natural addressee for political and societal minorities who feel that their rights are being violated by decisions of the governmental majority. This way, the FCC has become a potential antagonist of the federal government even if it does not pursue an agenda of its own. Since its authority is generally recognised, its judgements have a lasting impact because the government usually considers them in its policy shaping to avoid a “nasty surprise”, when its laws are found unconstitutional. This anticipatory self-limitation of the parliamentary government promotes the consensus orientation among political actors (Hönnige and Gschwend 2010, p. 511) but may also lead to a creeping self-disempowerment of the democratically elected government majority. Overall, the FCC has avoided being absorbed by political interests (politicisation) and refrained from substantially narrowing political actors’ room for manoeuvre (judicialisation). Several factors have contributed to this successful performance. First, the procedure for selecting judges has led to a balanced composition of the FCC with “relatively moderate” lawyers who “are also acceptable to the other camp” (Rath 2020). Generally, the FCC has also kept to the principle of judicial self-restraint. Furthermore, court decisions that were particularly controversial between the major parties met with broad acceptance in the public, which kept the critical response by the defeated side in limits (Sternberg et al. 2015). At the same time, the intense discussion of its judgements in academia and the wider public has ensured that the judges in Karlsruhe remain aware of their limited interpretative power: only if the performance of democracy remains the “yardstick of their actions” can they “claim legitimacy in long-term perspective” (Kneip 2011, pp. 241–242). Finally, the FCC has managed to deal with the increasing flood of appeals in such a way that most of these cases were decided within an acceptable time span. Although a reform commission installed in 1996 and led by former FCC president Ernst Benda made some proposals for simplifying the court proceedings (Benda 1998), its recommendations have not been implemented. Since then, there have hardly been further initiatives for FCC reforms. However, two recent developments have posed critical challenges to the court’s position as non-partisan “guardian of the constitution” (Lembcke 2007). On the one hand, the fragmentation of the German party system

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implies that the CDU/CSU and SPD no longer have two-thirds majorities in the Bundestag and Bundesrat. However, if more and more smaller parties demand the right to appoint “their representatives” in Karlsruhe, this could lead to an enhanced politicisation of the FCC’s composition. In order to prevent this, the selection procedure might be changed in the medium term. One option in this regard would be to provide the federal president with a reserve right to nominate constitutional judges if their election fails in the Bundestag and Bundesrat (Kielmansegg and Gschwend 2018). On the other hand, the FCC has been fundamentally challenged by the constitutionalisation of the EU. Since the ECJ established the primacy of European legislation in the mid-1960s, the judges in Karlsruhe have developed a nuanced strategy in their rulings on EU affairs. They have underlined the conformity of supranational integration with the Basic Law but also claimed the right to scrutinise EU regulations if the fundamental rights and the foundations of democracy were at stake. In view of the decisions of the ECB and the EU member countries during the state debt crisis and the COVID-19 pandemic, and the accompanying moves towards a fiscal union, it is questionable to what extent the FCC will still be able to uphold its claim to be the main guardian of the democratic constitutional order in future.

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CHAPTER 13

The Government Systems of the German States

The German states—called Länder in the language of the Basic Law— already existed before the foundation of the Federal Republic of Germany. Today, Germany consists of 16 Länder, which have “state sovereignty” (BVerfGE 1, 14, 34) and can decide themselves how they shape their political institutions. This autonomy of the states enhances the territorial diversity consistent with the logic of consensus democracy. At the same time, the Basic Law stipulates a structural homogeneity between the government systems at federal and state level (Art. 28, para. 1 GG), which follows the logic of a majoritarian democracy. Therefore, this chapter focuses on the patterns of democracy in the German states. Are their systems of government more determined by elements of majoritarian or consensus democracy? What makes them different from the federal level? Is political will formation and decisionmaking more homogenous or more diverse among the states? In order to answer these questions, Section 13.1 will elaborate on the socioeconomic and sociocultural profiles of the German states. Their main political institutions—parliament, government and administration, constitutional courts and direct democracy—will be analysed in Section 13.2. Section 13.3 looks at politics and governance on the state

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level. Section 13.4 examines the position of the German states in the European multi-level system. Section 13.5 summarises the core results and answers the initial questions.

13.1

The German States: History and Society

The German states are not an invention of the post-war period but embody a tradition of independent subnational statehood going back to the Middle Ages. The size and regional composition of the territorial units have changed many times. At no point in history was there a system in which German states were of equal size and equal economic performance. The foundation of the German Empire in 1871 brought together 25 formerly independent states within one federation, including the three Hanseatic cities of Hamburg, Bremen and Lübeck and the Imperial Territory of Alsace-Lorraine. The fact that a uniform German citizenship was only created in 1913 underscores the significance of the individual states at the time. After the First World War, the Treaty of Versailles mandated a significant reduction of German territory, including Alsace-Lorraine, Eupen-Malmedy, the Memel region, North Schleswig, Upper Silesia, the Territory of the Saar Basin and West Prussia. In the Weimar Republic, the number of German states decreased to 18 when Thuringia was formed out of seven small states in 1920. In 1929, Waldeck, independent for 500 years, became part of Prussia. In terms of size (62%) and population (1933: 61%), Prussia was by far the largest state in the Weimar Republic (Bracher et al. 1987, p. 629). In 1932, the democratic government of Prussia was ousted in a coup and the state was put under the authority of an imperial commissioner (Bracher 1971, pp. 491–563). All German states lost their political independence when the National Socialists seized power in 1933. After the Second World War, the Allies promoted the re-foundation of the states. Apart from West Berlin, which retained a special status, the boundaries of most states in the West German occupation zones were redrawn. Only Bavaria, Bremen and Hamburg continued to exist in their previous forms with minimal changes. In the Soviet occupation zone, federal states were also founded initially, but they were abolished again in 1952. The territorial structure of the West German states arrived at its present form with the foundation of Baden-Württemberg, created in 1953

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through the fusion of Württemberg-Baden, Baden and WürttembergHohenzollern, and the incorporation of the Saarland into the federal republic in 1957. Despite the disparity between highly industrialised and agricultural regions, the West German states were relatively homogenous in socioeconomic terms. Until the 1960s, the economic centre of the federal republic was in North Rhine-Westphalia, where much of the coal and steel industry was located. With its decline and the economic rise of Baden-Württemberg, Bavaria and Hesse, a North–South divide emerged that has continued to exist until today. At the same time, regional identities started to form in the newly designed states. These identities were promoted by the respective governments, for example, through campaigns like “We in NRW” (Wir in NRW ) or “You are a Hessian if you want to be a Hessian” (Hesse ist, wer Hesse sein will ). After reunification, the number of states increased from 11 to 16, and so did their socioeconomic and sociocultural heterogeneity. A significant West–East divide was added to the South-North one. For the first time since 1949, Berlin was made a state with equal rights, and, at the same time, it became the federal capital. An attempted state fusion of Berlin and Brandenburg failed in 1996 (Chapter 4.2). In terms of their socioeconomic and sociocultural profiles, the 16 states can be divided into three groups (Table 13.1): the eight West German states, the five East German states and the three city states. In terms of population, North Rhine-Westphalia, Bavaria and Baden-Württemberg are the largest states, but population development differs from region to region. While the populations of most West German states are growing, the number of inhabitants in Mecklenburg-West Pomerania, Saxony, Saxony-Anhalt and Thuringia is declining. In Brandenburg and Bremen, population numbers are largely stable. Population densities range from 69 residents per square kilometre in rural Mecklenburg–West Pomerania to 4,112 residents per square kilometre in urban Berlin. In socioeconomic terms, the West German states had an average unemployment rate of 5.5% in 2020; the rate was higher in East Germany (6.5%), and it was highest in the city states (9.6%). In contrast to the labour market, GDP per capita was significantly above the federal average in the city states (132%)—driven by Hamburg and Bremen. In the East German states, it is only 76%, while the Western states barely differ from the federal average with 103%. After reunification and the transformation of the socialist planned economy into a market economy, the East caught up with the West in leaps and bounds until 1995, but convergence has

35,748 70,542 891 29,654 419 755 21,116 47,710 23,294 34,112 19,858 2,571 18,450 20,454 15,804 16,202

11,103,043 13,140,183 3,664,088 2,531,071 680,130 1,852,478 6,293,154 8,003,421 1,610,774

17,925,570

4,098,391 983,991 4,056,941 2,180,684 2,910,875 2,120,237

Baden-Württemberg Bavaria Berlin Brandenburg Bremen Hamburg Hesse Lower Saxony Mecklenburg-West Pomerania North Rhine-Westphalia Rhineland-Palatinate Saarland Saxony Saxony-Anhalt Schleswig–Holstein Thuringia

Territory (km2 )

Population

State

7,528 14,796 1,246 9,731 10,984 7,381

90,961

4,330 1,358 16,300 7,349 57,773 19,106 7,291 8,115 5,243

Debt per inhabitant

5.1 7.1 6.0 7.5 5.9 5.8

7.5

4.2 3.6 10.1 6.1 11.1 7.7 5.4 5.7 7.9

Unemployment (%)

Table 13.1 Socioeconomic characteristics of the German states (2020)

35,078 34,468 31,260 28,697 34,039 29,080

38,764

45,657 47,749 42,399 29,974 47,327 64,031 45,557 37,723 29,073

GDP per inhabitant

12.6 13.0 5.5 5.4 9.4 5.5

15.4

16.6 15.0 22.6 5.5 20.1 17.6 18.2 10.7 5.1

Foreign nationals (%)

38.7/25.9 54.6/16.8 3.7/17.2 3.2/11.4 5.9/42.2 7.5/20.0

36.3/23.0

31.7/27.0 46.9/17.2 8.4/14.3 3.6/13.9 9.5/30.8 9.4/23.6 21.2/31.6 16.3/41.1 3.4/14.2

Christian denominations (Cath./Prot.; %)

466 F. GROTZ AND W. SCHROEDER

5,197,189 8,057,329 2,499,941 2,065,565

Ø Ø Ø Ø

22,349 30,933 21,611 688

Territory (km2 ) 11,778 8,040 6,190 31,059

Debt per inhabitant 6.7 5.5 6.5 9.6

Unemployment (%) 38,805 39,879 29,617 51,252

GDP per inhabitant 12.4 13.7 5.4 20.1

Foreign nationals (%) 18.8/23.1 31.5/28.1 4.3/15.3 9.1/22.9

Christian denominations (Cath./Prot.; %)

Sources Population and territory: Federal and state offices of statistics as of 31 December 2020; debt per inhabitant: Federal Office of Statistics (Statistisches Bundesamt) as of 31 December 2020 (debt including local municipalities and community associations); unemployment: Federal Agency for Labour as of 31 December 2020; GDP per inhabitant: federal and state offices of statistics as of 2020; foreign nationals: Statistisches Bundesamt as of 31 December 2020; Christian denominations: research group world views in Germany (Forschungsgruppe Weltanschauungen in Deutschland) as of 2020. Excluding Islamic population, since these figures are based on estimates rather than data from registers of residence Notes a West German states (excluding Bremen and Hamburg). b East German states (excluding Berlin). c City states (Berlin, Bremen, Hamburg)

16 Western statesa Eastern statesb City statesc

Population

State

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F. GROTZ AND W. SCHROEDER

slowed down significantly since then. While the average income in the East German states was already 79.5% of the West German level in 1995, this gap had only narrowed to 85.5% by 2017 (Sixtus et al. 2019, p. 24). Almost none of the 160 largest companies listed on the stock exchange have their headquarters in East Germany (BMWi 2020), and very few companies with their own research and development units are located there. The manufacturing industry still makes up a low proportion of gross value added and this is not counterbalanced by high value service activities. The weaker performance of the East German economy not only leads to a lower average income but also to lower tax revenues and higher social transfer payments. Although the fiscal equalisation scheme largely equalises the differences in financial strength between the states (Chapter 4.1), it has only been able to reduce the socioeconomic disparities to a limited extent. At the same time, the public debt of the East German states is relatively low, at e6,190 per inhabitant, while the city states have very high debts (e31,059 per inhabitant). The West German states are somewhere in between (e8,040 per inhabitant). There are various reasons for these different debt levels (Wagschal et al. 2009, p. 212; Wagschal 2018). In West Germany and Berlin, these are partly old debts that have existed for decades. By now, a “debt brake” is enshrined in most of the state constitutions, just as it is in the Basic Law (Chapter 4.1). In sociocultural terms, the states differ with respect to the religious denominations of their populations. In the West German states, over 59.6% of residents belong to one of the two Christian churches: Saarland has the highest proportion (71.4%) and Schleswig–Holstein the lowest (48.1%). The strongholds of Catholicism are in Saarland (54.6%) and Bavaria (46.9%); those of Protestantism are in Schleswig–Holstein (42.2%) and Lower Saxony (41.1%). In the cosmopolitan city states, only around a third of the population belongs to a Christian church, in East Germany—where the socialist dictatorship fought against both churches for 40 years—the proportion is around one-fifth. Around 98% of Muslims in Germany live in the city states (2011: Bremen 10%, Berlin and Hamburg 8% respectively) and in the Western states (North RhineWestphalia 8%, Hesse 7% and Baden-Württemberg 6%; Haug et al. 2009, p. 106; Eiden 2011). The proportion of foreign nationals is highest in the city states (20.1%); in Western states, it ranges between 9.4% (Schleswig–Holstein) and 18.2% (Hesse). In East Germany, it is at 5.4%. The socioeconomic and sociocultural disparities, which are most pronounced between peripheral rural regions and large booming urban

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areas, are a core challenge for the constitutional goal of establishing “equivalent living conditions throughout the federal territory” (Art. 72, para. 2 GG; Chapter 4.1). Moreover, they indicate that the societal preconditions for governing differ greatly between the states. The political assertion of state-specific interests at federal and EU level thus gains additional significance.

13.2

The Institutional Setting

Germany is a federation of 16 states, which are territorial units in their own right and have their own constitutions and political institutions (Art. 20, Art. 30 GG; Chapter 2.3). The Basic Law also enables the states to perform autonomous tasks, such as managing their own budgets and deciding on specific policies (Chapter 4.1). At the same time, their constitutional order “must conform to the principles of a republican, democratic and social state governed by the rule of law within the meaning of this Basic Law” (Art. 28, para. 1 GG). This homogeneity requirement only refers to the structural principles of the state systems of government, such as the separation of powers and an independent judiciary (Chapter 2.2). Within this general framework, the states are free to develop their political institutions independently. Therefore, a state could theoretically replace the parliamentary system with a presidential system with a directly elected head of government (Eschenburg 1952; Chapter 9.1). Against this backdrop, it is quite remarkable that the state systems of government follow a uniform model (Fig. 13.1). All 16 states have a parliamentary system. The citizens elect the state parliament (Landtag ) which elects the state prime minister (Ministerpräsident ) or the state government and which can remove them via a vote of no confidence. Unlike the federal system of government, the states do not have any kind of second parliamentary chamber. Only Bavaria had a senate composed of various societal corporations but this was abolished after a popular referendum in 1999. The states do not have a dual executive either, which would divide power between the head of government and the head of state (Chapter 9.1). Furthermore, all states have provisions for popular legislation, which does not exist on the federal level (see below). Within this institutional model, there are multiple points of divergence. Therefore, we will now present the main political institutions in the German states and explain their most important variants.

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elects

Referendum vote

(if rejected by parliament)

Popular initiative

Parliament (Landtag)

Prime minister (Ministerpräsident)

controls

Ministers adopts/ rejects elect

direct

elects

trigger

Constitutional Court

Administration

Citizens

Fig. 13.1 The parliamentary system of government in the German states (Source Authors’ compilation)

The parliament is the only directly elected institution in every state and thus forms the centre of the democratic system. Its official name is the Landtag, except for the Hanseatic city states of Bremen and Hamburg (Bürgerschaft ) and the city state of Berlin (Abgeordnetenhaus ). The standard size of state parliaments tends to grow with the number of registered voters (Reutter 2008, p. 154). The Saarland Landtag is the smallest state parliament, with 51 seats, and the Landtag of North Rhine-Westphalia is the largest, with 181 seats (Table 13.2). Just as in the case of the Bundestag, most state parliaments may increase in size through the addition of overhang and compensatory seats. Thus, the Bavarian Landtag is currently the largest state parliament, with 205 seats. At the same time, the ratio between the number of seats and the number of registered voters varies to a certain degree (Table 13.2). The smallest states—Bremen and Saarland—have the most seats in proportion to their voting population, while the largest states—North Rhine Westphalia, Bavaria and BadenWürttemberg—have the fewest seats per voter. In this respect, we can observe a fundamental dilemma. Although a higher number of seats promises a “closer” relationship between members of parliament (MPs) and their citizens, it can affect a parliament’s ability to function if it has too many seats. Repeated debates on the costs of “inflated” parliaments have shown that there is no objectively “correct” representation ratio. Rather, the standard size of the parliament is a “genuinely political decision” (Reutter 2019, p. 275). Remarkably, the state parliament

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of Saxony-Anhalt passed an act in 2014 to decrease its size in view of the declining state population. More concretely, its regular size was reduced from 91 seats to 87 in 2016 and to 83 in 2021. However, the 2021 elections saw the emergence of several overhang and compensatory seats that actually enlarged the parliament to 97 members (Chapter 5.3). Most state parliaments are elected for a five-year term by personalised proportional representation, which is also the electoral system for the Bundestag (for details, see Chapter 5.3). Bremen and Saarland are exceptions because they only have party list seats and no “personalized” constituency seats. In addition, Bremen is the only state with a four-year electoral term. There are also some technical specificities in the electoral systems of other states, although these do not change their overall effects (Raabe et al. 2014). There is an important difference in terms of voting age: in Brandenburg, Bremen, Hamburg and Schleswig–Holstein, 16-year-olds can vote, in other states, suffrage is still set at 18. Voter turnout at the most recent state parliament elections was between 75.4% (Berlin 2021) and 55.5% (North Rhine-Westphalia 2022). Thus, the electoral participation has stabilised since the all-time low observed at the 2006 elections in Saxony-Anhalt (44.4%). Nevertheless, turnout at state elections is still around ten points below turnout at the federal elections, which are considered politically more significant (Vetter and Remer-Bollow 2017, p. 195; Chapter 5.3). The general finding of electoral studies that voter turnout increases with education and income levels has also been confirmed for the elections in the German states. This social selectivity does not disappear even when turnout rises (Bertelsmann Stiftung 2015a, 2015b, 2017). Like all democratic parliaments, the state parliaments need to fulfil four core functions: legislation, the election of executive and judicial office holders, oversight of government and administration as well as voter representation and public communication. The execution of these tasks is slightly different in the state parliaments than in the Bundestag (Chapter 9.2). Since the bulk of legislation is made on the federal level (Chapter 4.1), the state parliaments retain relatively few policy areas in which they can make autonomous decisions. In particular, these matters include the organisation of the state administration and local government as well as public service and civil servants’ salaries; they also pertain to the authority over schools and universities, broadcasting, the police and various other specific issues. A state parliament passes around 20 to 30 laws per year, while the Bundestag passes around 100 (Mielke and Reutter

120 (154) 180 (205) 130 (147) 88 84 (–) 121 (123) 110 (137) 135 (146) 71 (79) 181 (195) 101 (101) 51 (–) 120 (119) 83 (97) 69 (69) 88 (90) 108 (118)

Size of parliamenta 63,925 52,663 18,828 23,734 5,661 10,882 39,753 44,924 18,456 71,635 30,123 14,633 27,636 21,553 33,542 19,650 31,115

Voters per seatb 27.3 40.5 20.4 17.0 28.6 12.2 29.2 32.2 15.2 39.0 30.7 37.3 37.8 41.2 49.3 23.3 30.3

CDU/ CSUc 12.3 10.7 24.5 28.4 27.4 43.1 21.2 39.0 43.0 28.7 38.6 56.9 8.4 9.3 17.4 8.9 26.1

SPD 37.7 18.5 21.8 11.4 19.0 26.8 21.2 16.4 6.3 20.0 9.9 — 10.1 6.2 20.3 5.6 16.2

Greens 11.0 8.3 8.8 26.1 — 4.9 12.1 12.3 17.7 6.2 7.9 5.9 30.3 23.7 — 21.1 14.2

AfD — — 16.3 11.4 11.9 9.8 6.6 — 11.4 — — — 11.8 12.4 — 32.2 13.8

Linke

11.7 5.4 8.2 — 6.0 3.3 8.0 — 6.3 6.2 5.9 — — 7.2 7.2 4.4 7.0

FDP

— 16.6 — 5.7 7.1 — 1.5 — — — 6.9 — 1.7 — 5.8 4.4 6.1

Otherd

Sources Authors’ calculations based on data from the State Election Commissioners and the state parliaments; figures for parties as percentage of parliamentary seats as of 31 October 2022 Notes a Legal minimum size, actual number of seats in parantheses (seat enlargements due to overhang and compensatory seats; not applicable to Bremen and Saarland). At the parliament elections in Saxony in 2019, one seat could not be allocated to the AfD. b Voters per parliamentary seat based on legal minimum size. c CSU: only in Bavaria. d Other: other parties and independents. e Averages related to the number of parliaments in which the respective party is represented

Baden-Württemberg Bavaria Berlin Brandenburg Bremen Hamburg Hesse Lower Saxony Meckl.-West Pomerania North Rhine-Westphalia Rhineland-Palatinate Saarland Saxony Saxony-Anhalt Schleswig-Holstein Thuringia Øe

State

Table 13.2 Seat allocation in the state parliaments (2022)

472 F. GROTZ AND W. SCHROEDER

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2012, p. 50). The state parliaments’ narrow legislative powers correspond to their lower resource endowments. Like the Bundestag, every state parliament has its own administrative services that support the MPs and carries out various other tasks (Reutter 2008, p. 169). Staff numbers are of a manageable size: in 2007, they were between 62 (Bremen) and 292 (North Rhine-Westphalia), which corresponds to 0.8 (Bremen) and 1.8 (Hesse) staff per MP (Herz 2008). Concerning the electoral function, the focus is on the formation and dismissal of the state government. Moreover, every state parliament elects its president, the president’s deputies, further office holders within parliament (including the committee chairs), the judges at the state constitutional court, the state members of the Federal Assembly (Chapter 10.4), the members of the state court of auditors, the broadcasting council and the data protection commissioner. While the election of the state prime minister can occasionally attract nationwide attention (e.g. Saxony-Anhalt in 1994, Schleswig–Holstein in 2005, Hesse in 2008, Thuringia in 2020), most other elected offices are typically filled without much controversy. After the right-wing populist Alternative for Germany (AfD) entered state parliaments, conflicts around appointments to key positions and panels increased in some state parliaments (Leunig 2022; Schroeder et al. 2017, pp. 50–51). More concretely, the allocation of vice presidents among the parties in the state parliaments and the appointment of committee chairs has become more controversial, which occasionally leads to an increased number of resignations or to permanent vacancies (Reutter 2016). Another core task of the state parliament is the oversight of the state government. Unlike the Basic Law, most state constitutions codify a right to opposition and explicitly mention the parliamentary function of oversight. Only the constitutions of Baden-Württemberg, Hesse, North Rhine-Westphalia and Saarland have no specific provisions in this regard. Many state constitutions also equip the MPs with clearly defined rights of scrutiny. In addition to minor, major and oral interpellations and question times, there is a right of summons—i.e. to order a member of the state government to appear in parliament—and the right to establish a committee of inquiry. Nevertheless, these quite extensive rights to ask questions and receive information from the government has not resulted in a higher level of scrutiny than on the federal level (Reutter 2013, pp. 270–271). In most states, the number of parliamentary interpellations varies over time and usually rises when new parties enter

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parliament (Reutter 2013, p. 263). In addition, the oversight instruments are used very differently from one state parliament to another. For example, there have been around 9 major interpellations per legislative term in Mecklenburg-West Pomerania since 1990 but 172 in Hamburg (Carstensen 2018, p. 482). Furthermore, the political usage of the oversight instruments in state parliaments is also different from the federal level. While major interpellations in the Bundestag are almost exclusively introduced by the opposition (1990–2017: 85.7% to 100%), the proportion of major opposition interpellations in the Baden-Württemberg parliament only oscillated between 41.6% and 67.2% (1990–2014; Carstensen 2018, pp. 493–495). The reasons for this difference are difficult to identify. Generally, the faster the state government answers, the more frequently interpellations are used (Carstensen 2018, p. 495). Furthermore, all state constitutions—just like the Basic Law (Art. 44 GG)—make provisions for parliamentary committees of inquiry, which can be established on the request of a fifth or a quarter of the MPs. This instrument was employed particularly frequently after the exposure of the National Socialist Underground (NSU) murders in 2011. Since then, no fewer than eight state parliaments have established committees of inquiry on the activities of this right-wing extremist terrorist network. In BadenWürttemberg, Hesse, Saxony and Thuringia, such inquiry committees have been set up on several occasions in consecutive legislative terms. With respect to their representation and communication functions, the state parliaments are largely comparable to the Bundestag (Chapter 9.2). Their social structure is at best a distorted reflection of society. Generally, men, older people, university graduates and civil servants are clearly overrepresented. However, there is significant variation between the states, such as in the proportion of female MPs, ranging from 27.1% in Bavaria to 45.5% in Hamburg in 2022 (Kürschners Datenbank 2022). In Brandenburg and Thuringia, there were attempts to increase the proportion of female MPs by mandating gender-balanced party lists for state elections in 2019; however, these reforms were struck down by the respective state constitutional courts (Jutzi 2020). A further difference between the state parliaments and the Bundestag is the dual mandate. Very few Bundestag members concurrently occupy a seat in other parliaments or assemblies, while state MPs are frequently members of a local council or a district assembly. By now, almost every state parliament has adopted a “full time representative” model, meaning that MPs take a sabbatical from their

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previous job during their term in parliament and receive financial compensation to ensure their independence. Only the Hamburg Bürgerschaft has maintained characteristics of a parliament of honorary representatives (von Blumenthal 2004, 2012); until 1996, voluntary membership of the Bürgerschaft was even enshrined in Hamburg’s constitution (Welti 1998, p. 171). In 2011, a study found that the average workload of state MPs was 61 hours per session week and 58 hours per session-free week, which roughly corresponds to the workload of Bundestag members (Tenscher 2011, p. 388). The intensity of contact with citizens is also comparable: in 2014, 19% of Bavarian citizens had direct contact with their state MPs, while contact between citizens and members of the Bundestag was at 14% (Infratest Dimap 2019, p. 21). The state government (Landesregierung )—also called the senate in the city states—is the main executive organ. The prime minister (Ministerpräsident )1 performs both the tasks of a head of government and the representative tasks that a head of state would carry out on the national level. Since all these tasks are performed by the holder of one office, this is also called the “closed executive” in the German context (Steffani 1979, p. 41). The state cabinet is composed of the prime minister and the ministers. The number of cabinet members is formally limited in the constitutions of Bavaria (17 state ministers and state secretaries) and Berlin (10 senators). As on the federal level, government formation takes place in two steps. After the election of the state prime minister by parliament, the ministers are appointed. In most cases, the prime minister needs an absolute majority in the first round; only in Bavaria and Bremen is a simple majority sufficient (Table 13.3). In nine other states, a relative majority is sufficient in a further round of voting, which facilitates the formation of minority governments. An absolute majority requirement for all further rounds of voting only exists in Baden-Württemberg, Hamburg, Hesse, Rhineland-Palatinate and Saarland. Seven state constitutions have a maximum time span in which the prime minister has to be elected after the first time the new parliament convenes (Table 13.3; Ley 2010). If the parliamentary majorities are unclear, this requirement may lead to considerable time pressure. Therefore, Saxony-Anhalt removed the twoweek time limit for the first round of voting from its constitution in 2020 1 In Berlin, the official term for the prime minister is Regierender Bürgermeister, in Bremen it is Präsident des Senats and in Hamburg Erster Bürgermeister.

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(Art. 65, para. 2 LSAVerf old version). If no candidate for prime minister achieves the required majority, the constitutions of Baden-Württemberg, Brandenburg, Saxony and Saarland provide for a dissolution of parliament and early elections. In Mecklenburg-West Pomerania, Lower Saxony and Saxony-Anhalt, a decision by parliament is necessary to exercise this right to self-dissolution. In six of the state parliaments, an absolute majority is sufficient for this; in another ten, a two-thirds majority is needed (Leunig 2012, p. 109). Generally, the prime minister and their government stay in office as caretakers after their resignation or dissolution of parliament until a new government is installed. A case of a prime-ministerial election that received a lot of public attention happened in Thuringia in February 2020. As the results of parliamentary elections did not allow the formation of a coherent majority coalition, the leader of the smallest parliamentary group—that of the Free Democratic Party (FDP)—stood for prime minister. In the third round of voting, he achieved a simple majority with the aid of the groups of the right-wing populist AfD and the Christian Democratic Union (CDU). Since the AfD has been excluded from government formation by all other established parties in Germany, this “accidental” election met with nationwide critique and protest, with the result that the FDP prime minister announced his resignation on the next day. In the aftermath, there were heated discussions as to whether the previous ministers were still in office because their terms formally ended only when a new government took office (Art. 74, para. 3 ThürVerf). Since the CDU parliamentary group rejected early elections due to unfavourable opinion polls, the parliament elected the previous prime minster Bodo Ramelow (Left party) 28 days after the start of the government crisis. The FDP boycotted this election, the CDU abstained and the AfD candidate withdrew his candidature in the third round of voting. In most states, the prime minister appoints the members of the cabinet. An additional parliamentary vote of confidence is only needed in a few cases. On the federal level, the prime minister’s selection of cabinet members is mainly based on the preferences of the government parties and their parliamentary groups (März 2006, p. 152). Only the Bürgerschaft in Bremen elects the cabinet members (senators) individually (Art. 107, para. 2 BremLV). Moreover, the senators in Bremen and in Hamburg may not be MPs (Gebauer 2006, p. 133). Vice versa, the prime minister of North Rhine-Westphalia must have a seat in parliament (Art.

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52, para. 1 LV-NRW). An initiative to abolish this idiosyncratic constitutional provision was rejected by the North Rhine-Westphalian parliament in 2016. As on the federal level, the head of government can be removed by parliament in most states if a successor is elected at the same time (constructive vote of no confidence). In Berlin, the vote of no confidence loses its binding nature after 21 days if no new government has been elected (staggered constructive vote of no confidence). If no new government is elected after a vote of no confidence in Hesse, RhinelandPalatinate and Saarland, parliament is dissolved (Table 13.3). While the Bundestag has no formal right to remove federal ministers, the constitutions of Baden-Württemberg (Art. 56 LV BW) and Rhineland-Palatinate (Art. 99 RhPfVerf) make provisions for a parliamentary removal of state ministers from the cabinet. In all states apart from Bremen, the prime minister sets the “general guidelines of policy” and thus determines the operation of government (Pestalozza 2014, p. LXX). Most of the state constitutions also include the cabinet and departmental principles as enshrined in Article 65 of the Basic Law (Chapter 10.1). At the federal level, formal majority decisions among the cabinet members are the exception; controversial issues are usually resolved in the meetings of the state secretaries by mutual agreement. The ministers lead their departments in their own right and bear the associated responsibility. The portfolios of the individual ministries vary between the states and change with almost every new government. In addition to the constitutional provisions, common rules of procedure of the ministries and coalition agreements structure the work of the state governments. The state chancellery (Staatskanzlei), called state ministry (Staatsministerium) in Baden-Württemberg and senate chancellery (Senatskanzlei) in the city states, forms the core executive and is structured similarly to the federal chancellery (Chapter 10.1). It performs coordination and support tasks for the prime minister, thus allowing the prime minister to enact their preferred policies (Grunden 2009, p. 34; Zerr 2006). The head of the state chancellery, who usually has the rank of a state secretary, is responsible for managing the core executive and coordinating the ministries. The state chancellery has “mirror units” for all ministries. Apart from resolving inter-ministerial conflicts and preparing cabinet sessions, the state chancellery also supervises voting in the Bundesrat, and

Baden-Württemberg Bavaria Berlin Brandenburg Bremen Hamburg Hesse Lower Saxony Mecklenburg-West Pomerania North Rhine-Westphalia Rhineland-Palatinate Saarland Saxony Saxony-Anhalt

State

rel. m abs. m abs. m rel. m rel. m

abs. m

abs. abs. abs. abs.

m m m m

abs. m rel. m rel. m rel. m rel. m abs. m abs. m rel. m rel. m

Second round

abs. m simple m abs. m abs. m simple m abs. m abs. m abs. m abs. m

First round

Majority quoruma

— 3 months 4 months —

—

3 months 1 week — 3 months — — — 3 weeks 4 weeks

No Yes Yes Yes

No

Yes No No Yes No No No Yes Yes

Max. time Dissolution of periodb parliamentc

Election of state prime minister

Simple Simple Constructive Constructive

Constructive

Constructive Simple Simple Constructive Constructive Constructive Simple Constructive Constructive

Constructive vote of no confidenced

Table 13.3 Rules of government formation and parliamentary dissolution in the states

No Yes No Yes

No

No No No Yes No Yes Yes No Yes

Vote of confidence

abs. m 2/3 m 2/3 m 2/3 m

abs. m

2/3 m abs. m 2/3 m 2/3 m 2/3 m abs. m abs. m abs. m 2/3 m

Right of self-dissolutione

478 F. GROTZ AND W. SCHROEDER

abs. m abs. m

First round rel. m rel. m

Second round

Majority quoruma

— —

No No

Max. time Dissolution of periodb parliamentc

Election of state prime minister

Constructive Constructive

Constructive vote of no confidenced

No Yes

Vote of confidence

2/3 m 2/3 m

Right of self-dissolutione

Source Reutter (2020a, p. 101) with additions by the authors Notes a Majority requirements in first and second rounds of parliamentary voting: abs. m = absolute majority; simple m = simple majority; rel. m = relative majority. b Maximum time span between first meeting of new parliament and election of the state prime minister. c Mandatory dissolution of parliament after failed election of state prime minister. In Mecklenburg-West Pomerania, Lower Saxony and Saxony-Anhalt, an additional parliamentary resolution is necessary. d In Berlin, the “staggered constructive vote of no confidence” expires if no new prime minister is elected within three weeks. In Bavaria, the prime minister must resign “if the political conditions make a trustful cooperation between him and the state parliament impossible” (Art. 44, para. 3 BV). In Hesse, Rhineland-Palatinate and the Saarland, a new government must be installed after a successful vote of no confidence within 12 days, four weeks or three months respectively or parliament will be dissolved. (Reutter 2020a, p. 101). e Self-dissolution after a parliamentary resolution with an absolute majority (abs. m) or two-thirds majority (2/3 m)

Schleswig–Holstein Thuringia

State

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the state representatives in Berlin and Brussels are usually part of its remit (Section 13.4). In Germany, the state administrations are the central agencies for implementing federal legislation (Chapter 4.1). Therefore, they employ considerably more people than the federal level and have a more differentiated organisational structure. In 2021, 5.1 million people were employed by the civil service: 49.9% by the states, 32.5% by local authorities, 10.2% by the federation and 7.4% by the social insurance institutions (Statistisches Bundesamt 2022). Given that the state administrations have to perform the same tasks emerging from the Basic Law and numerous federal laws, they are all organised in similar ways. At the same time, their concrete structures in terms of individual agencies and staff vary significantly due to different state traditions and administrative cultures (Ellwein 1997). Moreover, the state governments deliberately shape their administration, which affects the organisation of administrative units and staffing (Götz et al. 2018). The vertical structure of the German state administrations includes five different types of agencies (Götz 2012; Grotz et al. 2017, pp. 34–36). The highest state agencies, such as ministries and courts of audit, are responsible for the entire state within their areas of responsibility and usually have their own subordinate authorities. Key state agencies are led by one or several ministries and are responsible for the tasks conferred onto them within the entire state. Upper agencies are also subordinate to one or several ministries but additionally have administrative supervision over their own subordinate authorities. Intermediate agencies are only responsible for part of the state territory, while lower state authorities are always subject to the oversight of a superior authority and are also only responsible for a part of the state territory. The vertical structure of the state administrations differ in terms of whether they include intermediate agencies or not (Bogumil 2018; Reiners 2008). Three-tier administrations have an intermediate level that serves as a regional link between the lowest and the highest agencies. Two-tier administrations do not have such an intermediate structure. The existence of regional agencies linking the administrative levels mainly depends on state size (Table 13.4). All medium size and large states have three tiers of administration, except Lower Saxony, which abolished its intermediate level in 2005. Vice versa, most of the small states have a two-tier administrative structure; among them, only Saxony-Anhalt and Thuringia have three administrative tiers.

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Table 13.4 Vertical structure of the German state administrations

Two-tier structure

Three-tier structure

Small states

Medium size states

Large states

Brandenburg Mecklenburg-West Pomerania Saarland Schleswig–Holstein Saxony-Anhalt Thuringia

–

Lower Saxony

Hesse Rhineland-Palatinate Saxony

Baden-Württemberg Bavaria North Rhine-Westphalia

Source Authors’ compilation following Grotz et al., (2017, p. 71) Note Small states: population < 4 m; medium size states: population 4–7 m; large states: population >7 m. Excluding city states Berlin, Bremen and Hamburg

The horizontal structure of the state administrations can be divided into seven sectors according to their policy tasks (Götz 2012). The general administration carries out all internal organisation tasks, except for issue-specific matters of law, planning and performance. This particularly includes the state ministries as well as agencies charged with fiscal and staff management. Judicial administration includes, among other things, the institutions of the penal system. Domestic security and order pertain to those agencies that carry out the classic functions of sovereignty, order and intervention (e.g. civil status registration, immigration; fire, civil and disaster protection). Special agencies are responsible for specific issues of order. This includes diverse tasks, from environmental and energy law to business, healthcare and consumer protection. General public service agencies carry out tasks in the area of public infrastructure and services. Among others, this includes road construction and measures in agriculture and forestry. The area of labour and social services is primarily responsible for the numerous public welfare and transfer services. Finally, the cultural administration performs the state tasks in the areas of education, science and the promotion of culture. Since 1949, the state administrations have developed in two major phases. Until the end of the 1980s, there was a clear growth of administrative structures and staff along with a strong differentiation of the policy tasks the individual agencies had to undertake. Consequently, public administration in general and the administration of the states in particular was characterised by “durability, autonomy [and] growth” (Ellwein

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1994, p. 39). After reunification, the new states in East Germany initially adopted this administrative model before undergoing a fundamental transformation in the 1990s. Following the neoliberal idea of “new public management”, an approach to administrative reform that adopted individual elements of business management for state modernisation became dominant (Bauer et al. 2007). All German states subsequently followed this model before turning away from it in the 2010s. From the mid-1990s onwards, the states implemented reform policies that streamlined their administrative structures significantly (for more details, see Grotz et al. 2017). Between 1992 and 2014, the overall number of state agencies declined by two-thirds and the related full-time staff positions declined by one-third. Thus, the number of agencies and their staff per inhabitant were considerably reduced while average staff numbers per agency almost doubled. Despite this uniform trend, the reform policies varied greatly among the states. Thuringia and SaxonyAnhalt proved particularly active, achieving the highest reduction rates of agencies and staffing. By contrast, North Rhine-Westphalia and Bavaria only moderately reduced the number of agencies and staff positions. These distinct reform outcomes were partly due to different staring points in 1990: while North-Rhine-Westphalia already had a relatively “slim” state administration in proportion to its population, the East German states had a relatively high number of administrative agencies and staff and therefore greater reform pressure and potential. Since 2009, the reductions of administrative agencies and staff positions have slowed down considerably or even come to a halt. Thus, administrative streamlining on the grounds of economic efficiency seems to have ended (Ebinger and Bogumil 2016; Chapter 14.3). It remains to be seen whether the state administrations will be “upgraded” again due to societal demands for improved public sector capacity or whether they will stay on a moderate level owing to the budgetary squeeze resulting from the economic crisis following the war in Ukraine in 2022. All German states have their own constitutional courts (Landesverfassungsgerichte) that oversee the compatibility of legal norms with the state constitution and make binding rulings in that respect. Thus, they play a similarly important role in the government systems of the states as the Federal Constitutional Court plays at federal level (Chapter 12). The general powers of the state constitutional courts are regulated in the state constitutions, while their procedural rules and organisational structures are codified in ordinary laws (Pestalozza 2014, p. CIII; Flick

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2008, p. 251; Starck 2008, p. 323). All states provide for the procedure of concrete judicial review initiated by a court request as codified in Article 100, paragraph 1 of the Basic Law. Abstract judicial review initiated by parliament, government or other constitutional institutions also exists in all states. A special procedure exists in Bavaria, where any citizen can ask the constitutional court to review a state law because of a violation of fundamental rights without being personally affected (“popular complaint” according to Article 98 of the Bavarian constitution). Therefore, the Bavarian Constitutional Court has had a pioneering role in certain legal matters. Disputes between constitutional organs—e.g. between the state parliament and the state government—are also common procedures everywhere. A different situation applies in relation to constitutional complaints, which can be brought by citizens against violations of fundamental rights. This option is not available in Bremen, Hamburg, Lower Saxony and Schleswig–Holstein; however, the citizens there have the option of bringing their complaints to the Federal Constitutional Court (Chapter 12.1). There are also differences with respect to the number, selection and formal qualifications of constitutional judges (Table 13.5). Their number varies between seven (Bremen, Mecklenburg-West Pomerania, Saarland and Saxony-Anhalt) and 38 (Bavaria). The Bavarian Constitutional Court is the only one with several chambers. Unlike the judges of the Federal Constitutional Court, all state constitutional court judges work part time or on an honorary basis. Lay judges also play a role in most state constitutional courts. Apart from a few professional judges, who are ex officio members in their capacity as presidents of a higher administrative court (Bremen, Rhineland-Palatinate), constitutional judges are elected by the state parliaments.2 The nomination right varies between parliamentary committees, presidia and groups as well as the presidents of the constitutional courts. As on the federal level, a two-thirds majority is usually needed to elect constitutional judges. Only in four states is a plurality of votes3 sufficient, which means that the government there does not have to

2 In eleven states, the minimum age of constitutional judges is 35 and in a further four it is 40. Moreover, the upper age limit, gender quota and incompatibility regulations vary among the states (Reutter 2020b). 3 In Baden-Württemberg, the winning candidate has to receive more votes than those of all other candidates added together.

7 7

North Rhine-Westphalia

9 38 9 9 7 9 11 9

Numbera

Judges

Mecklenburg-West Pomerania

Baden-Württemberg Bavaria Berlin Brandenburg Bremen Hamburg Hesse Lower Saxony

State

2/3

2/3

Plurality Plurality 2/3 2/3 Plurality Plurality 2/3 + Pluralitye 2/3

Majority quorumb Fully qualified lawyersc

3 3 23d 15 3 3 3 3 3 – 4 2 5 – At least 6 fully qualified lawyers, of which 3 professional judges 4 fully qualified lawyers, of which P and VP professional judges 3 4

Professional judges

Table 13.5 Constitutional courts of the German states

–

3

3 – 3 3 4 3 6 –

Other

10

12

9 5/8d 7 10 4 6 7/5e 7

Term of office (years)

–

–

Permitted Permitted – – Permitted Permitted once Permitted Permitted once

Re-election

484 F. GROTZ AND W. SCHROEDER

9 8 9 7 7 9

Numbera

Judges

2/3 2/3 2/3 2/3 2/3 2/3

Majority quorumb

4 2 5 3f 3 3h

Professional judges

– – – – 4 3

Fully qualified lawyersc 5 6 4 4g – 3

Other

6 6 9 7 12 7

Term of office (years)

Permitted once Permitted Permitted Permitted once – Permitted once

Re-election

Source Authors’ compilation according to state constitutions and laws on state constitutional courts Abbreviations P = President; VP = Vice President. Notes a Total number of judges. In Bremen and Rhineland-Palatinate, the president of the Higher Administrative Court is an ex officio member of the constitutional court and thus the only constitutional judge who is not elected by parliament. b Parliamentary majority quorum for the election of judges. c Fully qualified lawyer in the German system formally means qualification for the office of judge. d The 23 professional judges are elected for 8 years, the other 15 judges for one parliamentary term (5 years). e Eight members of the Hessian state parliament form an election committee. The committee elects five professional judges by a two-thirds majority for seven-year terms and six other members with a plurality of votes for each legislative term of five years. f Presidents of the State Court and presiding judges at higher administrative courts. g Among them at least one law professor. h Including the president of the constitutional court.

Rhineland-Palatinate Saarland Saxony Saxony-Anhalt Schleswig–Holstein Thuringia

State

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rely on the support of the opposition. Judges become even more dependent on parliamentary parties when their tenure is limited to the duration of one legislative term as in Bavaria, Bremen and Hesse. A judges’ term of office ranges between four and twelve years; re-election is possible, except in Berlin, Brandenburg, Lower Saxony, North Rhine-Westphalia, Mecklenburg–West Pomerania and Schleswig–Holstein. Finally, all state constitutions incorporate institutions of direct democracy. In this regard, they differ from the Basic Law, which only permits a referendum in the case of a new delimitation of the federal territory (Art. 29 GG). Generally, direct democracy refers to “all forms of political will formation and decision-making where the citizens may vote on certain policies” (Grotz 2015, p. 109). The most important instrument of direct democracy in the German states is the popular legislation (Volksgesetzgebung ) whereby the citizens initiate a draft law from “bottom up” and may submit it to a referendum. Today, all state constitutions provide for popular legislation. At the time when the Federal Republic of Germany was founded, this option already existed in eight states (Solar 2019, p. 128). Only Hamburg, Lower Saxony, and Schleswig-Holstein—states whose constitutions were drafted after the Basic Law—had no provisions for popular legislation. The antiplebiscite approach of the Basic Law was also taken up in the constitution of Baden-Württemberg of 1953, although all three of its predecessor states had the option of popular initiatives. Baden-Württemberg introduced popular legislation in 1974 (Decker 2016, p. 77). Other West German states followed subsequently: Saarland in 1979, Schleswig– Holstein in 1990, Lower Saxony in 1993 and Hamburg in 1996. The constitutions of the new East German states (1992–1994) included provisions for popular legislation from the very beginning (Fraude 2005; Hoffmann 2005; Kellmann 2005; Wohlfahrt 2005). In Berlin, the original constitutional option of popular legislation was abolished in 1974 but was re-introduced in 1995 (Posselt 2005). Popular legislation proceeds in several steps (Table 13.6). In the first stage, two different procedures exist. In some states, a group of citizens may start a popular initiative (Volksinitiative) by collecting signatures for their draft bill.4 If a certain number of signatures is reached, the bill 4 The term “people’s initiative” (Volksinitative) is utilised in very different ways in the German states (Michels 2019). In Baden-Württemberg, Brandenburg, Hamburg, Mecklenburg-West Pomerania, Rhineland-Palatinate, Saxony, Saxony-Anhalt

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is submitted to the state parliament for debate, which provides public attention for the initiators and offers an opportunity for early acceptance or compromise with the parliamentary majority. If the initiators cannot come to such an agreement with parliament, they may initiate a popular petition (Volksbegehren) in order to trigger a referendum. This second stage to initiate popular legislation circumvents the state parliament. If citizens collect the necessary number of signatures for the draft bill, the proposal directly moves on to the second stage. In both kinds of citizen initiatives, the legality of the bill is examined since “the people as a state organ are also bound by the rule of law” (Jürgens and Rehmet 2009, p. 200). This examination is usually done by the state government and can be reviewed by the state constitutional court. The range of issues that can be addressed by popular legislation differs from state to state. Usually, the so-called “triad of finance”—budgetary, salary and tax regulations— is exempted from popular legislation since budgetary decisions are the prerogative of parliament (Rehmet and Weber 2016, p. 14; Chapter 9.1). The signature quorum for popular initiatives is quite low: it ranges from 0.02% (North Rhine-Westphalia) to 1.2% (Saxony) of registered voters. As already mentioned, signatures are collected again at the second stage of popular petition. If a certain quorum is reached, a popular referendum (Volksentscheid) takes place, which is the third stage. Crucial barriers for the success of popular petitions are the required number of signatures, the duration of the collection period and the form of collection. In Saxony, for example, 13.2% of the registered voters must support a popular petition by their signature but in Schleswig-Holstein only 3.6%. In Bavaria, Hesse and Saarland, the citizens can only provide their signature in administrative offices while other states allow free signature collection— for example, in front of supermarkets or by mail. The time allowed for the signature collection varies between 14 days (Bavaria) and one year (North Rhine-Westphalia). For the referendum, two different quorums may be applied: approval quorums set a minimum proportion of yes votes for the acceptance of the bill, while turnout quorums set a minimum participation of registered voters for the referendum to be valid (Table 13.6).

and Schleswig–Holstein, it refers to the first stage of popular legislation. In other states, such as Berlin, Bremen, Lower Saxony, North Rhine-Westphalia and Thuringia, it merely describes a mass petition submitted to parliament.

++ + ++ + ++ ++ + + + + + + ++ + + +

Baden-Württemberg Bavaria Berlin Brandenburg Bremen Hamburgf Hesse Lower Saxony Mecklenburg–West Pomerania North Rhine-Westphalia Rhineland-Palatinate Saarland Saxony Saxony-Anhalt Schleswig–Holstein Thuringia

10% 10% 7% 80,000 (~3.8%) 5% 5% 5% 10% 100,000 (~7.5%) 8% 300,000 (~9.7%) 7% 450,000 (~13.2%) 9% 80,000 (~3.6%) 10% (F) 8% (A)

Signature threshold

Popular petition

6 months 14 days 4 months 6 months 3 months 21 days 2 months 6 monthsg 5 months 1 year 2 months 3 months 8 months 6 months 6 months 4 months (F) 2 months (A)

Collection period F A F and A A F F and A A F F F F and A A F F F and A F or A

Collection methodc 20% – 25% 25% 20% 20%f 25% 25% 25% 15% 25% 25% – 25%h 15% 25%

Quorumd

Referendum

15/1/0 63/21/6 41/13/7 56/15/0 15/4/0 63/16/7 8/1/0 12/3/0 29/4/1 14/3/0 6/1/0 8/2/0 16/4/1 4/4/1 37/6/2 15/5/0

Casese

Source Authors’ compilation based on www.mehr-demokratie.de Notes a Only ordinary legislation without constitutional amendments. b Number of permitted policy issues to be submitted to popular legislation (high: ++; low: +). c A = signature collection by administrative offices only; F = free collection. In Mecklenburg-Western Pomerania, there is the option of signature collection in administrative offices with a duration of two months in addition to a free collection. d Approval quorum; minimum turnout quorum only in Rhineland-Palatinate, no quorum in Bavaria and Saxony. e Number of popular initiatives/popular petitions/popular referenda between 1946 and 31 December 2022. f For more details of the required quorum necessary see Art. 50 of the Hamburg Constitution. g In Lower Saxony, the collection period may be extended depending on how long it takes the state government to assess admissibility. h Approval quorum not required if the state parliament presents a competing proposal for the referendum

Scope of issuesb

State

Table 13.6 Popular legislation in the German statesa

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There are significant differences in the use of popular legislation. Most states have never seen a popular referendum (Table 13.6). The 25 referenda held so far took place mostly in Hamburg (7), Berlin (7) and Bavaria (6). In contrast, popular petitions have already been triggered in every state. Out of the overall 103 popular petitions, 21 took place in Bavaria, 16 in Hamburg and 15 in Brandenburg. The first stage of popular legislation, the initiative, was used most frequently, in 402 cases. Given the long period from 1946 to 2022, this is not a very high number. Overall, popular legislation has occasionally had significant effects on policy-making in a few states like Hamburg and Berlin (Decker 2016, pp. 102–118; Solar 2015). But even there, it has not fundamentally changed the workings of parliamentary democracy. Besides popular legislation, some German states provide for further procedures of direct democracy. In facultative referenda, the citizens may decide on laws passed by parliament if the state government or the state parliament trigger a popular vote or if a certain quorum of signatures is reached. This option exists in Hamburg and Rhineland-Palatinate; in Bremen, an option like this exists in the event of a privatisation of public companies (Solar 2019, p. 132). Furthermore, in Bavaria and Hesse, constitutional amendments must be confirmed by a referendum. This mandatory referendum is part of the explanation for why amendments to the constitution have been quite rare in these states (Grotz 2013, p. 331).

13.3

Politics and Governance

Like on the federal level, democratic governance in the states is not determined by the institutional setting (polity) but rather by the interaction of institutional provisions with the major political actors (politics). The latter include the political parties and the parliamentary party system, the party governments and the interest associations in the individual states. Hardly any state constitution emphasises the central position of political parties for representative democracy as much as the Basic Law (Art. 22 GG; Chapter 6.1). Nevertheless, parties also play a key role in state politics. While the state branches of parties do not act with full autonomy, since they are integral parts of the federal party organisation and thus have limited political leeway, they seek to influence federal policy-making in terms of programmatic issues and personalities. This is particularly true for the Christian Democratic Union (CDU) and the Social Democratic Party (SPD), whose parliamentary groups in the Bundestag include

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state groupings (Chapter 9.2). These also serve as intra-parliamentary communication channels when decisions on policy initiatives and office appointments touch on their respective state interests (Kwaschnik 2018, p. 511). Political parties have the same functions for the working of representative democracy on the state level as on the federal level (Chapter 6.1). Nevertheless, political positions can vary between the state branches of the same party. Such differences are particularly pronounced in areas where the states have autonomous legislative powers, such as in education policy (Bräuninger et al. 2020, pp. 58–59). In other policy areas, there may also be programmatic differences between state party branches based on the socioeconomic and sociocultural context of their respective state (Bräuninger et al. 2020, pp. 58–59). For instance, the Greens in BadenWürttemberg are rather conservative, while they are more left-wing and progressive in the city states of Berlin and Bremen. Programmatic differences between state party branches may also reflect their historical legacies. This is most apparent with the Left party, whose East German branches emerged from the Party of Democratic Socialism (PDS) and have an overall pragmatic approach, while its West German branches are largely “stuck in the pattern of a left-wing populist protest party” (Holtmann 2020, p. 197). Political leaders can also have a lasting impact on the image of a state party branch. This is especially true for long-standing prime ministers, such as Ernst Albrecht (CDU) in Lower Saxony, Johannes Rau (SPD) in North-Rhine Westphalia, Manfred Stolpe (SPD) in Brandenburg, Kurt Biedenkopf (CDU) in Saxony or Winfried Kretschmann (Greens) in Baden-Württemberg. The state level also offers a special opportunity for new parties to establish themselves regionally without already being successful on the federal level (Chapter 5.3). This has repeatedly been the case in the extreme right-wing party spectrum. For example, the National Democratic Party of Germany (NPD) entered several state parliaments in the mid-1960s. The Republicans (Die Republikaner) achieved this in the 1990s in BadenWürttemberg, and the German People’s Union (Deutsche Volksunion, DVU) did so in Brandenburg, Bremen, Schleswig-Holstein and SaxonyAnhalt. However, these parties were not able to sustain their presence in the state parliaments. They also never managed to get into the Bundestag, just like the Pirate Party, which entered four state parliaments in 2011/ 2012 but failed to surpass the 5% threshold at the 2013 federal elections. In contrast, the state parliaments were an “institutional springboard” for

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the Greens in the 1980s and for the AfD from 2013 onwards; both parties later took root at the federal level (Schroeder et al. 2018). The party systems at federal level and state level are generally similar, as the parties in the Bundestag are also represented in most of the state parliaments. Nevertheless, there are significant differences with regard to their numerical and ideological characteristics (Niedermayer 2013a, 2013b; Chapter 6.2). In 2022, the number of parliamentary parties (format ) was three in the Saarland and four in Lower Saxony; in four states, it was five and in 10 states it was six (Table 13.2). This lower format than in the Bundestag (seven) is due to the fact that the Left party and the FDP are not represented in all state parliaments. Vice versa, there are a few regional parties that have no seats in the Bundestag, such as the Free Voters (Freie Wähler), which have already participated in the Bavarian state government. The fragmentation of state party systems, measured by the effective number of parliamentary parties (ENP; Laakso and Taagepera 1979; Chapter 6.2), varies even more strongly. In the Saarland, the ENP was at 2.1 in 2022 while in Hesse it was 4.9. The state parliament in Berlin currently has the highest ENP of 5.3, which is significantly above the level of the Bundestag (4.8; authors’ calculation). The variation in fragmentation is primarily due to the fact that the CDU and SPD are significantly weaker or stronger in some state parliaments than at the federal level. More concretely, the share of parliamentary seats held by the CDU varies between 49.3% (Schleswig-Holstein) and 12.2% (Hamburg), while that of the SPD varies between 56.9% (Saarland) and 8.4% (Saxony). A similar result emerges for the Greens, whose electoral strongholds are in Baden-Württemberg, Hesse and the three city states, while they are much weaker in East Germany and even failed to enter the Saarland parliament in 2022. The seat shares held by the AfD also differ considerably between the states. The party has been particularly successful in East Germany, with a peak of 30.9% in Saxony, while it is no longer represented in the parliaments of Bremen and Schleswig–Holstein. Before 1990, the German party system was very stable (Chapter 6.2). In several states, either the Christian Democrats or the SPD were clearly ahead of all other parties and therefore determined government formation for a long time. Such “heartlands” are now predominantly a phenomenon of the past. Only in Bremen has the SPD led the government since 1946. In Bavaria, the Christian Social Union (CSU) has achieved the same—with short interruptions in the 1950s. As at the federal level, party competition in the states has become increasingly dynamic since

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the 1990s. In particular, the ideological distances between the parliamentary parties (polarisation) have undergone significant changes. On the one hand, party positions have moved closer to each other in socioeconomic and sociocultural terms, although this development did not occur in synch with the federal level everywhere and has also differed from place to place, particularly in East Germany (Bräuninger et al. 2020). On the other hand, a cultural and systemic conflict has emerged between the established parties and the right-wing populist AfD. The AfD is fundamentally critical of parliamentary democracy and attracts voters with corresponding attitudes. In this polarized context, the state prime ministers play an even more important role in electoral behaviour. Especially where the AfD is particularly strong, the prime ministers are “apparently seen as providing a ‘safe harbour’ in turbulent times”, which also has positive effects at the ballot box (Holtmann 2020, p. 199). Therefore, the parties of Michael Kretschmer (CDU; Saxony), Dietmar Woidke (SPD; Brandenburg) and Bodo Ramelow (The Left; Thuringia) were particularly successful at the most recent state elections in East Germany. The structural changes in the German party system are also reflected in the composition of governments on the state level (Decker 2011, pp. 299– 304; Schniewind 2012). In the first post-war decade, government formation predominantly followed the logics of consensus democracy. Between 1946 and 1955, most state governments were formed either by allparty coalitions (11) or by grand coalitions of CDU/CSU and SPD (10); only in relatively few cases did they consist of one party (5) or a coalition of a larger and a smaller party (9). With the increasing concentration and bipolarisation of the party system, the state governments also went in a majoritarian direction. This development peaked in the early 1970s, when eight of the eleven West German states were led by single-party governments and three by small coalitions “that all belonged to either the government or the opposition camp on the federal level” (Decker 2011, p. 300). The entry of the Greens did not affect the coalition patterns at first, since they joined an SPD-led government in Hesse as early as in 1985 and were integrated into the bipolar party competition. The new camps were “CDU-FDP” and “SPD-Green”, which entered into coalition with each other if a single-party majority government was not possible. Forming small majority coalitions within one camp only became more difficult after reunification, as the postcommunist PDS became relatively strong in East Germany but was not considered suitable as a coalition partner. Only after the toleration of an

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SPD minority government by the PDS had been tried out in SaxonyAnhalt in 1994 (“Magdeburg model”), the first SPD-PDS coalition was formed in Mecklenburg-West Pomerania in 1998 and was followed by others in Berlin and Brandenburg. As the electoral support for the former catch-all parties has constantly declined, more grand coalitions and “crosscamp” party governments have been formed, such as the first CDU-Green coalition in Hamburg in 2008 (Spier 2013, p. 500). Since the AfD entered the state parliaments but is not considered a suitable coalition partner by any other party, the problems of government formation have been further exacerbated. Even the CDU and SPD have no joint majority in several state parliaments, which means that the “emergency solution” of a grand coalition is no longer viable everywhere. This has considerably increased the diversity of coalition patterns. At the end of 2022, the 16 states were governed by 12 different party constellations if the relative party sizes are taken into account (Table 13.7). They also include cross-camp coalitions like the SPD-Green-FDP in Rhineland-Palatinate or SPD-CDU-Green in Brandenburg. The main reason for these uncommon alliances was not the similarity of their manifestos, the strategic consideration of their federal parties or the power distribution in the Bundesrat but solely the formation of a government majority with the capacity to act. Thus, coalition politics on the state level still follows a basic majoritarian logic, even if the multi-party governments are more heterogeneous and forced to make political compromises. Particularly in coalitions like these, governance capacities depend very much on the personal relationships between the government elites, on informal networks and on situational factors (Kropp 2001, pp. 290– 295). Nevertheless, minority governments are still avoided as much as possible. Between 1990 and 2009, only eight of 304 government years in the sixteen states saw minority cabinets (Decker 2011, p. 301), and since then, there have been even fewer cases. At the end of 2022, only Thuringia had a minority government. Apparently, minority cabinets do not work very well in the German context. They do not make democratic governance more flexible or inclusive, as a relevant case study shows (Ganghof et al. 2019). Although government stability is a little weaker at the state level than at the federal level (Chapter 10.2), it is still very high in international comparison (Spier 2013, p. 502). Nevertheless, there are striking differences between the states in this respect. In Schleswig–Holstein and Hamburg, there have been 13 prime ministers since 1946 respectively,

Winfried Kretschmann (Greens) Markus Söder (CSU) Franziska Giffey (SPD) Dietmar Woidke (SPD) Andreas Bovenschulte (SPD) Peter Tschentscher (SPD) Boris Rhein (CDU) Stephan Weil (SPD) Manuela Schwesig (SPD) Hendrik Wüst (CDU) Marie-Luise Dreyer (SPD) Anke Rehlinger (SPD) Michael Kretschmer (CDU) Reiner Haseloff (CDU) Daniel Günther (CDU) Bodo Ramelow (The Left)

Baden-Württemberg CSU—Free Voters SPD—Greens—The Left SPD—CDU—Greens SPD—Greens—The Left SPD—Greens CDU—Greens SPD—Greens SPD—The Left CDU—Greens SPD—Greens—FDP SPD CDU—Greens—SPD CDU—SPD—FDP CDU—Greens The Left—SPD—Greens

Greens—CDU

Government partiesa

Source Authors’ compilation as of 31 December 2022 Notes a Sorted by parliamentary size. b Seat proportion of government parties in state parliament (after election)

Bavaria Berlin Brandenburg Bremen Hamburg Hesse Lower Saxony Mecklenburg-West Pomerania North Rhine-Westphalia Rhineland-Palatinate Saarland Saxony Saxony-Anhalt Schleswig-Holstein Thuringia

Prime minister

State

Table 13.7 Prime ministers and government coalitions in the German states (2022)

53.7 62.6 56.8 58.3 69.9 50.4 55.5 54.4 59.0 54.5 56.9 56.3 57.7 69.6 46.7

64.9

Proportion of seatsb (%)

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while the acting prime minister of Rhineland-Palatinate, Marie-Luise Dreyer (SPD), is only the seventh head of government in this state. Bernhard Vogel (CDU) is the only person to have been prime minister in two different states (Rhineland-Palatinate 1976–1988; Thuringia 1992– 2003). While the head of government certainly has a prominent position on the federal level (“chancellor democracy”; Chapter 10), this is even more true on the state level. Prime ministers are the central actors in state politics (Reithmeier 2013). If they exert strong leadership, they may achieve broader public visibility through the Bundesrat and in the Prime Ministers’ Conference. This can also qualify them for executive offices on the federal level. It is certainly no coincidence that five federal chancellors were state prime ministers beforehand (see Table 10.1). Furthermore, several among those running for chancellor, from Franz-Josef Strauß (CSU), Edmund Stoiber (CSU) and Armin Laschet (CDU) to Johannes Rau, Oskar Lafontaine, Rudolf Scharping and Peer Steinbrück (all SPD), were previously state prime ministers. Other cabinet members can also play an important role in state politics, particularly the ministers of finance. However, most state ministers have not attained nation-wide prominence and are relatively unknown even within their own state (März 2006, p. 148). Like the political parties, most interest associations have a multilevel structure (Chapter 7). While the state associations often have an individual membership, their federal organisations are more likely to be second- or third-order associations—that is, their members are not individuals but state associations. At the state level, associations are particularly active in those policy fields where the state has autonomous legislative powers. For instance, in education and science, these are the German Philological Association (Deutscher Philologenverband), the Education and Science Workers’ Union (Gewerkschaft Erziehung und Wissenschaft ) or the state students’ councils (Landesschülervertretung ). Likewise, there are welfare associations and hospital associations on the state level that assert their interests in healthcare and social policy. Chambers of commerce and industry as well as employers’ associations and trade unions are important actors in state politics in the areas of business and labour (Table 7.2). Sports associations and religious communities also maintain close relationships with the state governments. The same is true for local government associations representing the interests of cities, counties and local municipalities (Chapter 14.4). Although interest associations occupy a prominent position in state politics and governance,

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there is still surprisingly little systematic research on them (for tentative approaches, see Sesselmeier 2010; Schroeder and Geiger 2016; Schiffers 2013; Kleinfeld 2016; Kleinfeld and Löbler 1993). The systems of associations in the German states are formally very similar to each other. The participation of association in the policymaking process is enshrined in the procedural rules of state parliaments and governments. In contrast, the informal relationships between state governments and interest associations are quite diverse. These are mainly determined by the personal interconnections between both sides. For instance, many members of state parliaments are concurrently members of civil society organisations, such as trade unions, welfare and sports associations, and they sometimes even perform important roles there. Furthermore, each state government also maintains regular contact with important interest groups like freelancers, churches, trade unions and employers’ associations, which also have individual interconnections with the ministers and the prime minister. Overall, the exchange of opinion and information between state governments and associations is highly institutionalised. Therefore, interest associations can affect governance and politics in the states substantially by supporting the government agenda in social distribution conflicts, environmental protection or reforms of the education system—or by working against it.

13.4 The German States in the European Multi-Level System The German states are independent players in the European multi-level system. The representation of their interests in EU affairs takes place both domestically and at the European level. In this regard, the Bundesrat is the most important institution at the national level (Chapter 11.3). Besides this Bundesrat involvement, the state parliaments and governments are also active in EU policy-making. The state commissioners for EU affairs also perform important tasks in this context, since they lead the state offices in Brussels and coordinate the representation of state interests in the EU institutions. The continuing deepening and widening of the European Community and later the European Union have led the states to “accept an increasing limitation of their independent scope of action and policies” (Sturm and Pehle 2012, p. 98; Chapter 3.1). The reforms of the European treaties

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have only accounted for the restrictions of the legislative and administrative powers of the states to a limited extent. More concretely, the principle of subsidiarity was enshrined in the Treaty of Maastricht (1993), which stipulates the fundamental primacy of regional and local territorial entities in exercising competences in the EU multi-level system (Art. 5, para. 3 TEU new version). The Treaty of Lisbon (2009) provided two concrete procedures of subsidiarity oversight to implement this principle: the subsidiarity objection as an early warning mechanism in the EU legislative process, and the subsidiarity complaint at the European Court of Justice after the legislative process has been completed. The German states have access to both instruments through the Bundesrat but have used them relatively rarely. The states were also able to win significant rights for the Bundesrat in the domestic will formation and decision-making in EU affairs (Chapter 11.3). However, this only upgraded the state governments represented in the Bundesrat, while the state parliaments did not receive any compensatory powers. Even if we look beyond formal competences, it is clear that efforts to Europeanise state parliaments have not succeeded on their own terms (Häsing and Buzogany 2015, p. 150). While the Bundestag has operated its own liaison office in Brussels since 2007 (Chapter 9.3), only a few state parliaments have comparable entities. Nevertheless, all state parliaments have their own committee for EU affairs, and EU-related issues are frequently invoked in their standing committees as well, not least due to the numerous EU-funded projects that are implemented in the individual states. The fact that the EU dimension is considerably less visible and significant in the state parliaments than in the Bundestag is also because the states are responsible for transposing EU legislation only in exceptional cases (Eberbach-Born 2013, p. 312). Between 1990 and 2016, only seven of 846 EU directives were transposed by the state parliaments (Paasch and Stecker 2021). Every state government has a commissioner for EU affairs with the rank of a minister or state secretary (Beichelt 2015, p. 349). The state chancelleries, which are responsible for federal affairs, were the first state departments to establish their own EU divisions, as they also took over the coordination of EU affairs. By now, nearly all state ministries have also received specific competences with regard to EU policy-making. However, it is difficult to identify a general pattern here. In fact, the state governments are taking quite different paths in structuring their coordination of EU policies.

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Like other state ministers, the commissioners for EU affairs join together in the Conference of Ministers in charge of European Affairs (Europaministerkonferenz, EMK), which is responsible for coordinating inter-state issues in EU affairs (Chapter 4.3). The number of EMK members with the rank of minister has subsequently increased. In 2022, only Hamburg, Rhineland-Palatinate and Saarland had no minister for EU affairs. Decisions by the EMK are usually “mutual declarations of commitments” (Schöne 2018, p. 336). In order to endow them with an official character and an appropriate effect on the federal government, they are often formally passed by the Bundesrat (Schmuck 2018, p. 437). The commissioners for EU affairs are also linked to the state representative offices in Brussels. These exist in addition to the Permanent Representation of the Federal Republic of Germany to the European Union (Chapter 10.3). Sometimes, several states share a representative building in Brussels, such as the Hanse Office operated by Hamburg and Schleswig–Holstein. Like the federal ministries, the state ministries send their own civil servants to Brussels for limited periods of time in order to observe and influence current developments and thus ensure their “European capabilities” (Schenderlein 2015, p. 217). Overall, the state representative offices fulfil three functions (Große Hüttmann and Knodt 2006): they collect information about EU legislation and projects (information function), they sort and select the flood of material for the state ministries (filter function) and they point to problems and critical issues in expert and background reports (early warning function). While all state representative offices fulfil the same functions, their resources differ to some extent. The offices of smaller states usually only have a few staff members, while Bavaria regularly sends more than 30 civil servants to Brussels (Schenderlein 2015, p. 49). In addition to representing EUrelated interests in a narrower sense, the representative offices also serve as a “shop window” for their state and support the state representatives in the various EU institutions. The German states have participation rights in two EU institutions: the Council of the European Union (Council of Ministers) and the Committee of the Regions (CoR). According to Article 23, paragraph 6 of the Basic Law, a representative of the Bundesrat can occupy the German position in the Council of Ministers when education, culture and broadcast policies are being addressed. Since all 16 states have to speak with one voice in such cases, a high degree of coordination is necessary. In reality, the state representatives have very rarely served as German negotiators in the

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Council but they are always present in Brussels and can add their perspective if needed (Chapter 11.3). In the Committee of Regions, 24 of 329 seats are held by Germany. Twenty-one are delegates from the states, with every state being allocated one member and the five remaining members rotating between them. The other three seats are occupied by the municipal umbrella associations (Section 14 EUZBLG; Chapter 14.4). Despite this formal representation in CoR, the opportunities for states to exert political influence via this body are severely limited for two reasons. First, CoR has no veto powers but only a right to be heard in the EU legislative process. Second, the majority of EU countries are centralised states and therefore delegate representatives of local municipalities to CoR. This means that the German states only have very few “natural alliance partners” (Hesse and Grotz 2005, p. 153) for developing shared political positions. Overall, the German states have established “a broad range of tools relating to EU politics” (Grünhage 2007, p. 182) that they use in a differentiated manner. The Bundesrat is particularly significant in matters of joint interest of all German states. Furthermore, different formal and informal opportunities exist for articulating the interests of individual states on the national and EU level. The states with strong economic performance in key industries and technologies have the best preconditions in this regard, particularly if they can also pursue their own lobbying activities due to their size and financial power. Moreover, the ability of individual states to network with other European regions plays a role in shaping commonly shared positions or initiating cross-border projects. Despite all this, the loss of political autonomy that the states experienced through Europeanisation cannot be reversed. It is therefore all the more important for them to make effective use of the diverse opportunities for participation in the multi-level system in order to assert their interests in EU affairs.

13.5 Conclusion: Homogenous or Diverse Patterns of Democracy? The states represent an independent level of democratic participation, scrutiny and policy-making in the German political system. They have their own elected parliaments and governments with autonomous legislative powers. They can also implement their policies independently

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through their considerable administrative capacities. This became particularly evident during the COVID-19 pandemic in 2020 and 2021, when the state governments mandated differing restrictions on public life in order to reduce infection rates within their territories, weighing up socioeconomic damage limitation against public health considerations in the process (Behnke 2020). At the same time, the states are part of a federal order characterised by cooperative decision-making and unitary policy standards (Chapter 4). This also includes the homogeneity clause, which stipulates a fundamental compatibility between the systems of government at the federal and state level (Art. 28, para. 1 GG). Due to the close interconnection between the federal and state levels, the governmental systems of the individual states are also of particular interest to observers from outside. On the one hand, political events in one state, for instance, an extremist party entering the state parliament, may act as a “seismograph” that can be an early warning sign for actors at the federal level and in other states to initiate changes in order to avoid similar developments. On the other hand, the states may also be considered a “laboratory”, where innovative party coalitions and public policies can be tested, from which other political decision-makers can draw their own lessons. One example is the first SPD-Green government in Hesse in 1985, which was succeeded by similar coalitions in other states and eventually on the federal level in 1998 (Schniewind 2008, p. 126). The current SPD-Green-FDP coalition on the federal level also had several predecessors on the state level, including the acting government in Rhineland-Palatinate. This chapter discussed the patterns of democracy in the German states. We saw that their systems of government combine elements of majoritarian and consensus democracy in quite specific ways. Furthermore, we showed that the question of homogeneity or diversity of governance and politics in the states ought to be addressed in a differentiated manner. At the level of political institutions, the similarities between the states predominate. The state systems of government follow the parliamentary model at the federal level, where parliament is elected by (personalised) proportional representation and appoints the head of government who can also be removed by a (constructive) vote of no confidence. At the federal level, all states also have constitutional courts as the final instance to scrutinise legal norms for their conformity with state constitutions. However, some elements of the state systems of governments have a stronger majoritarian character than those at the federal level.

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These include the unicameral parliament and the “closed executive” that combines the tasks of the head of state and the head of government within the office of the prime minister. Vice versa, popular legislation that exists in all states is a pronounced element of consensus democracy (Vatter 2009) that does not exist on the federal level. In the last decades, the development of the state systems of government has shown a trend towards institutional convergence. This is particularly apparent in the constitutional provisions for popular legislation, introduced by the mid-1990s in all states and accompanied by an extension of the legislative period to five years. Moreover, a streamlining of administrative structures took place in all states between 1990 and 2010, which increased transparency within and between organisational units and reduced bureaucratic staff significantly. These administrative reforms followed the idea of a leaner and more efficient state, which also fits in with majoritarian concepts. However, it cannot yet be predicted how far this administrative model will be sustained after the COVID-19 pandemic and the economic crisis following the war in Ukraine. In some German states, idiosyncratic institutional features have survived within these fundamentally homogenous structures. Examples include the four-year legislative term in Bremen, the somewhat exceptional character of the Bavarian Constitutional Court with regard to its structure and procedures or the constitutional provision in North Rhine-Westphalia that the prime minister must be a member of the state parliament. The institutional details of popular legislation also vary significantly between the states, which contributes to a differentiated use of this instrument of direct democracy. In contrast to the strong similarities in the institutional settings, there is increasing diversity in the constellations of political actors at the state level. This is above all true of the party systems and the government coalitions that emerge from them. In this context, it is important to note that the socioeconomic and sociocultural preconditions of party competition were much more homogenous before reunification. Consequently, the state branches of the established parties were strongly integrated. The party system was also highly concentrated and had a bipolar structure, which allowed for a consistent formation of single-party majority governments or small coalitions in all West German states. Since the 1990s, socioeconomic and sociocultural disparities have increased, which has led to an organisational and programmatic differentiation of party competition. The result is not only that the state branches of the individual

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parties developed their own profiles but also that the state party systems have become more heterogeneous and have changed more dynamically in recent times. Together with a higher fragmentation caused by the “shrinking” of the former catch-all parties and the firm establishment of several smaller parties, this has led to a “colourful” coalition landscape. Under exceptional conditions, small and ideologically coherent coalitions might still be formed, such as the SPD-Green government in Lower Saxony in 2022. However, heterogeneous three-party coalitions are now becoming more frequent. In this context, prime ministers, who have always been the central actors in state politics, have gained even more significance. In view of repeated criticism of unwieldy decision-making processes and coalition governance, reforms of the state systems of government are occasionally discussed. A particularly striking proposal in this context is the idea of direct elections for state prime ministers, who would then also be relieved of their parliamentary responsibility. In other words, this would entail the replacement of the parliamentary form of government in the states by a presidential system (Decker 2010, 2013). At first glance, this option appears to have a few advantages. In theory, it would not only resolve the problem of forming a stable government but it could also lead to more flexible and inclusive legislative processes, since it would be easier for the presidential executive to govern with “shifting majorities” of different ad hoc coalitions in parliament. Moreover, uniform state votes in the Bundesrat would be guaranteed if state governments were no longer based on (heterogeneous) party coalitions (Chapter 11). However, such a change in the form of government would also come with considerable risks and unwanted side effects (Holtmann 2011; Zeh 2013). Among other issues, party democracy could be severely weakened if the prime minister was no longer dependent on the lasting support of the parliamentary majority and therefore could quite easily distance herself from her party in a populist manner when facing re-election. Overall, this proposal once again illustrates the fact that the increasing problems of democratic governance cannot be resolved through institutional reforms alone. Against this background, the academic debate about directly elected prime ministers has not gained political relevance. In contrast, reforms aiming at administrative modernisation have played a major role on the state level that can hardly be overestimated. In this vein, local territorial reforms—which fall under the remit of the states—have repeatedly

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prompted protests by citizens and even destabilised government coalitions (Chapter 14). At the same time, the substantial reorganisation of administrative structures has made the states into laboratories for sustainable public service provision. These experiences may also help to maintain their capacities to function as an important tier of subnational democracy in the multi-level system.

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Laakso, M., & Taagepera, R. (1979). “Effective” number of parties. A measure with application to West Europe. Comparative Political Studies, 12(1), 3–27. https://doi.org/10.1177/001041407901200101 Leunig, S. (2012). Die Regierungssysteme der deutschen Länder (2nd ed.). Springer VS. Leunig, S. (2022). Parlamentsvizepräsidenten in Bundestag und Landesparlamenten: (Neu-)Regelungen und Ämterbesetzung im Schatten der AfD. Zeitschrift für Parlamentsfragen, 53(4), 757–776. https://doi.org/10.5771/ 0340-1758-2022-4-757 Ley, R. (2010). Die Wahl der Ministerpräsidenten in den Bundesländern: Rechtslage und Staatspraxis. Zeitschrift Für Parlamentsfragen, 41(2), 390–420. https://doi.org/10.5771/0340-1758-2010-2-390 März, P. (2006). Ministerpräsidenten. In H. Schneider & H.-G. Wehling (Eds.), Landespolitik in Deutschland (pp. 148–206). Wiesbaden: Springer VS Michels, D. (2019). Volksinitiative. In A. Kost & M. Solar (Eds.), Lexikon Direkte Demokratie in Deutschland (pp. 261–272). Wiesbaden: Springer VS Mielke, S., & Reutter, W. (2012). Landesparlamentarismus in Deutschland—Eine Bestandsaufnahme. In S. Mielke & W. Reutter (Eds.), Landesparlamentarismus (2nd ed., pp. 23–65). Wiesbaden: Springer VS Niedermayer, O. (2013a). Die Analyse von Parteiensystemen. In O. Niedermayer (Ed.), Handbuch Parteienforschung (pp. 83–117). Wiesbaden: Springer VS Niedermayer, O. (2013b). Die Parteiensysteme der Bundesländer. In O. Niedermayer (Ed.), Handbuch Parteienforschung (pp. 765–790). Wiesbaden: Springer VS Paasch, J., & Stecker, C. (2021). When Europe hits the subnational authorities: The transposition of EU directives in Germany between 1990 and 2018. Journal of Public Policy, 41(4), 798–817. https://doi.org/10.1017/S01438 14X20000276 Pestalozza, C. (2014). Verfassungen der deutschen Bundesländer (10th ed.). München: C.H. Beck Posselt, C. (2005). Direkte Demokratie in Berlin. In A. Kost (Ed.), Direkte Demokratie in den deutschen Ländern (pp. 60–74). Wiesbaden: VS Raabe, J., Krifft, R., Vogel, J., & Linhart, E. (2014). Verdientes Vorbild oder Mythos? Eine vergleichende Analyse der personalisierten Verhältniswahl auf Länderebene. Zeitschrift für Vergleichende Politikwissenschaft, 8(3–4), 283–305. https://doi.org/10.1007/s12286-014-0214-9 Rehmet, F., & Weber, T. (2016). Volksentscheidsranking 2016. Retrieved August 19, 2020, from https://www.mehr-demokratie.de/fileadmin/pdf/volksents cheids-ranking_2016.pdf Reiners, M. (2008). Verwaltungsstrukturreformen in den deutschen Bundesländern: Radikale Reformen auf der Ebene der staatlichen Mittelinstanz. Wiesbaden: Springer VS

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Reithmeier, M. (2013). „Landesvater“ oder „Alleinherrscher“: Zwei Modelle bayerischer Ministerpräsidenten. In M. Glaab & M. Weigl (Eds.), Politik und Regieren in Bayern (pp. 99–116). Wiesbaden: Springer VS Reutter, W. (2008). Föderalismus, Parlamentarismus und Demokratie: Landesparlamente im Bundesstaat. Opladen: Barbara Budrich Reutter, W. (2013). Transformation des „neuen Dualismus“ in Landesparlamenten: Parlamentarische Kontrolle, Gewaltenteilung und Europäische Union. In B. Eberbach-Born, S. Kropp, A. Stuchlik, & W. Zeh (Eds.), Parlamentarische Kontrolle und Europäische Union (pp. 255–284). Baden-Baden: Nomos Reutter, W. (2016). Vizepräsidenten in Landesparlamenten: Eine Bestandsaufnahme aus Anlass einer Verfassungsänderung in Brandenburg. Zeitschrift für Parlamentsfragen, 47(3), 607–618. https://doi.org/10.5771/0340-17582016-3-607 Reutter, W. (2019). Zur Größe von Landesparlamenten: Kriterien für eine sachliche Diskussion. Zeitschrift für Parlamentsfragen, 50(2), 263–275. https:// doi.org/10.5771/0340-1758-2019-2-263 Reutter, W. (2020a). Die deutschen Länder: Eine Einführung. Wiesbaden: Springer VS Reutter, W. (2020b). Verfassungsrichterinnen und Verfassungsrichter: Zur personalen Dimension der Verfassungsgerichtsbarkeit in den Bundesländern. In W. Reutter (Ed.), Verfassungsgerichtsbarkeit in Bundesländern (pp. 203– 233). Wiesbaden: Springer VS Schenderlein, C. (2015). Landesvertretungen im Entscheidungsprozess der Europäischen Union. Marburg: Tectum Schiffers, M. (2013). Interessengruppen als Veto-Spieler und Kooperationspartner in der Politikgestaltung der Bayerischen Staatsregierung. In M. Glaab & M. Weigl (Eds.), Politik und Regieren in Bayern (pp. 257–268). Wiesbaden: Springer VS Schmuck, O. (2018). Die Europaministerkonferenz der deutschen Länder. In Europäisches Zentrum für Föderalismus-Forschung (Ed.), Jahrbuch des Föderalismus 2018 (pp. 435–447). Baden-Baden: Nomos Schniewind, A. (2008). Regierungen. In M. Freitag, & A. Vatter (Eds.), Die Demokratien der deutschen Bundesländer (pp. 111–160). Opladen: Barbara Budrich Schniewind, A. (2012). Die Parteiensysteme der Bundesländer im Vergleich: Bestandsaufnahme und Entwicklungen. Berlin: Lit Schöne, M.-L. (2018). Die Europaministerkonferenz der Länder: Europapolitische Willensbildung zwischen den Ländern und Wahrnehmung von Länderinteressen in Angelegenheiten der Europäischen Union. Baden-Baden: Nomos

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Vatter, A. (2009). Lijphart expanded: Three dimensions of democracy in advanced OECD countries? European Political Science Review, 1(1), 125–154. https://doi.org/10.1017/S1755773909000071 Vetter, A., & Remer-Bollow, U. (2017). Bürger und Beteiligung in der Demokratie: Eine Einführung. Wiesbaden: Springer VS von Blumenthal, J. (2004). Freie und Hansestadt Hamburg: Das letzte Feierabendparlament. In S. Mielke & W. Reutter (Eds.), Länderparlamentarismus in Deutschland (pp. 195–221). Wiesbaden: VS von Blumenthal, J. (2012). Freie und Hansestadt Hamburg: Wie die „Bürgerschaft“ regiert. In S. Mielke & W. Reutter (Eds.), Landesparlamentarismus (2nd ed., pp. 253–291). Wiesbaden: Springer VS Wagschal, U. (2018). Parteipolitik und Haushaltskonsolidierung in den Bundesländern (1992–2016). Zeitschrift für Vergleichende Politikwissenschaft, 12(4), 703–724. https://doi.org/10.1007/s12286-018-0404-y Wagschal, U., Wenzelburger, G., Petersen, T., & Wintermann, O. (2009). Determinanten der Staatsverschuldung in den deutschen Ländern. Wirtschaftsdienst, 89(3), 204–212. https://doi.org/10.1007/s10273-009-0912-0 Welti, F. (1998). Die soziale Sicherung der Abgeordneten des Deutschen Bundestages, der Landtage und der deutschen Abgeordneten im Europäischen Parlament. Berlin: Duncker & Humblot Wohlfahrt, J. (2005). Direkte Demokratie im Saarland. In A. Kost (Ed.), Direkte Demokratie in den deutschen Ländern (pp. 228–245). Wiesbaden: VS Zeh, W. (2013). Direktwahl als direkte Demokratie? Überlegungen anlässlich Frank Deckers Forderung nach „Direktwahl der Ministerpräsidenten“ in Heft 2/2013 der ZParl. Zeitschrift für Parlamentsfragen, 44(3), 666–680. https:/ /doi.org/10.5771/0340-1758-2013-3-675 Zerr, M. (2006). Staatskanzleien. In H. Schneider & H.-G. Wehling (Eds.), Landespolitik in Deutschland (pp. 185–206). Wiesbaden: VS

CHAPTER 14

Politics and Administration at the Local Level

In Germany, local communities, cities and counties are also called municipalities (Kommunen). The Basic Law stipulates that local representative bodies must be “chosen in general, direct, free, equal and secret elections” (Art. 28, para. 1 GG). Furthermore, municipalities have the right to “regulate all local affairs on their own responsibility within the limits prescribed by the laws” (Art. 28, para. 2 GG). The municipalities thus form the lowest level of government in the German political system; here, citizens experience politics and policy most immediately through active participation (the input dimension) and public services (the output dimension). Therefore, the municipalities are referred to as the “nucleus of democratic governance” (Holtmann et al. 2017, p. 13). At the same time, observers have repeatedly diagnosed a “crisis of local self-government ” (Holtmann et al. 2017, p. 20). To what extent do German municipalities succeed to combine inclusive policy-making with a high performing local administration and infrastructure? To answer this question, Section 14.1 will provide an overview of the position of municipalities within the federal order, which determines their tasks and financial resources. In Section 14.2, we will explain the institutional setting on the local level as codified by the municipal constitutions. Section 14.3 will look at the patterns of local governance and policy-making in the “quadriga” of mayor, council, administration and © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 F. Grotz and W. Schroeder, The Political System of Germany, New Perspectives in German Political Studies, https://doi.org/10.1007/978-3-031-32480-2_14

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citizens. Section 14.4 will show how local interests are represented on the state, federal and EU levels. Section 14.5 will offer a summary by reflecting on the capacities of German municipalities to perform as a “nucleus of democracy” as well as on the limits and challenges of local self-government.

14.1 Tasks and Financial Resources of German Municipalities Municipalities form the lowest level of government in the Federal Republic of Germany.1 While there were 24,438 local communities in 1967 (Beer 1970, p. 11), many smaller towns and villages were integrated into larger units in the course of territorial reforms. After reunification, this concentration process continued from the late 1990s onwards, meaning that there are now overall 10,789 municipalities in Germany. One hundred six of them are cities that do not belong to a county (kreisfreie Städte), while the others are distributed among 294 counties (Landkreise) that carry out their own tasks (Statistisches Bundesamt 2022b).2 Associations of municipalities are also part of the local level of government. Below the county level, there are many different associations of local communities, whereas on the county level, we find various municipal associations of a special kind, such as the region of Hanover, which includes a county and a city. Some German states like Bavaria, North Rhine-Westphalia and Rhineland-Palatinate have also established municipal associations above the county level. Moreover, there are multiple further local authorities, territorial associations, state welfare associations, administrative communities and special purpose associations. The competences of municipalities have a “dual nature”. On the one hand, local communities and counties have to implement federal and state legislation. This means that they cannot independently determine which 1 The German term “Kommune” (municipality) includes all territorial units below the state level (local communities, cities, counties and municipal associations). In everyday language, “Kommune” and “Gemeinde” (local community or parish) are often used interchangeably. 2 Strictly speaking, the city states of Berlin and Hamburg are both states and municipalities. However, they do not have local self-government but only districts without legal personality. Bremen is a two-city state consisting of the municipalities of Bremen and Bremerhaven. Due to these idiosyncratic arrangements, the three city states are not included in the following comparative description of German municipalities.

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of these tasks they want to carry out. To do so, they receive specific instructions from the state administration, which is legally responsible for the implementation of federal laws and largely transfers their execution to the local level (Bogumil and Holtkamp 2013, p. 8). From this perspective of administrative federalism, the municipalities are an integral part of the state level and do not represent an independent level of government (Chapter 4). On the other hand, municipalities have the constitutional guarantee that they are entitled to regulate all local affairs on their own behalf (Art. 28, para. 2 GG). This lays the foundations for local self-government as a genuinely political space (Holtmann and Rademacher 2015, p. 317). Due to this autonomy, local institutions and office-holders need democratic legitimation through free and fair elections, and they need to exercise mutual oversight in separation-of-power arrangements. In addition, citizens may participate actively and voluntarily in local governance when decisions are to be made about municipal life or local infrastructure. There are five municipal sovereignties that pertain to local selfgovernment and are thus protected by the constitution (Gern and Brüning 2019, p. 95): . Sovereign power over all natural and legal persons within the territory of the municipality (territorial sovereignty); . The right to prepare a budget and to collect its own revenues (taxes, fees and contributions; fiscal and budgetary sovereignty); . The autonomous organisation and staffing of the local administration (organisational and personnel sovereignty); . The right to pass local statutes, such as development plans and regulations for the usage of public facilities (statutory sovereignty); . The autonomous land-use planning and development of construction design concepts (planning sovereignty). However, even within their sovereign powers of self-government, the municipalities are not completely free. Their degree of autonomy varies according to three types of tasks (Fliedner 2017, p. 14): . In the case of voluntary tasks, the municipalities are allowed to decide whether to offer the relevant services to the citizens and

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how to deliver them. This applies, for example, to the operation of museums, theatres and sports facilities. . Mandatory tasks, such as land-use planning, fire protection or street cleaning, must be carried out by the municipalities. However, they are free to decide how they implement the respective legal regulations (e.g. street cleaning by private companies or by a local administration). . In the case of instruction tasks, such as construction supervision, the issuing of passports or the registration of residences, the municipalities must adhere to the binding instructions issued by the state. In this category, they can neither decide whether they issue an identity card nor how it should look like. Municipalities are overseen by the state administration in the performance of their tasks. Generally, agencies within the remit of the ministry of the interior are responsible for this (Gern and Brüning 2019, pp. 184– 206). The supervision of local authorities aims to ensure the implementation of legally mandated policies and to protect the municipal rights of self-government at the same time. The state authorities can act preventatively here, such as in the case of a specific procedure that needs authorisation, or they can issue ex post sanctions, e.g. by repealing a local council decision. In order to carry out their manifold tasks, local governments need sufficient financial resources. Their revenues come from four sources (Fig. 14.1): . Since the COVID-19 pandemic, financial allocations from the federation and the states have been the largest source of income for municipalities (42%). Payments from the federal government for the implementation of specific policies are always transferred through the states. Apart from the city states, all German Länder also have a fiscal equalisation scheme on the local level in order to reduce revenue-related differences between financially stronger and weaker municipalities (Gern and Brüning 2019, p. 535). In addition to lump-sum payments, this fiscal equalisation scheme often includes compensation for special expenses and allocations for specific needs and purposes.

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Revenue

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Expenditure

Real property tax 5% Other revenue 12%

Funding from the state and federal level 42%

Other expenditure 19%

Trade tax 17%

Tangible assets 12%

Wage and income taxes 14% Fees 7%

Interest 1%

Social services 22%

Staff 25%

Material expenditure 21%

VAT 3%

Fig. 14.1 Revenue and expenditure of German municipalities (2021) (Source Deutscher Städtetag [2022, p. 18]. Figures do not include data from the three city states)

. Taxes are the second largest component of local revenue, at around 40%. This includes, in particular, trade tax (17%) and the local share of income tax (14%). While revenues from these taxes are highly dependent on economic performance, the amounts of real property tax (5%) and of the local VAT share (3%) can be more easily predicted. Local governments have no influence on sales and income tax rates, but they can regulate the real property and trade tax themselves through assessment rates. There are still significant differences between East and West when it comes to local tax revenue. Thirtysix of the 40 municipalities with the weakest tax revenues are in East Germany while 39 of the 40 strongest ones are in West Germany. In Mansfeld-Südharz county, tax revenue per capita is only e564, while in Munich county, it is e3,816 (Bertelsmann Stiftung 2019, B 16). Moreover, municipalities can collect further local consumption and expenditure taxes, such as a dog license tax, entertainment tax and a tax on second homes. Since these generate limited revenue, they are sometimes described as “petty taxes” and subsumed under “other revenue” in Fig. 14.1. . Municipalities also raise funds through fees (7%) from users of their services, such as waste disposal, wastewater management or planning

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permission. The fee rates roughly correspond to the administrative costs. The situation is different for municipal contributions, where the requirement to pay is not necessarily connected to the actual utilisation of the service. For example, in the case of residential charges for road works, it makes no difference whether someone uses the upgraded road a lot or not at all. The mandatory contribution has to be paid regardless of usage. . Finally, local authorities generate other revenue from profits made by their own companies or from the rental or lease of land or property (12%). Municipal expenditure is substantially affected by staff costs (25%) and material expenses for buildings, vehicle fleets, office equipment, etc. (21%; Fig. 14.1). Social service spending (22%) is the largest of the further budgetary items. This includes, in particular, basic welfare benefits for job seekers, social assistance, funding of child and youth services and cash and non-cash benefits for asylum seekers. Investments in tangible assets include expenditure for the development and maintenance of municipal infrastructure. Apart from the fact that local governments are responsible for maintaining much public infrastructure, from school buildings and roads to local public transport (Bogumil and Holtkamp 2013, p. 8), the corresponding budgetary item is relatively low, at 12%. This is also one of the reasons for the much lamented “investment backlog” in Germany (Scheller 2017). Municipalities are not actually permitted to finance their expenditure through debt. Only short-term loans to overcome time-limited funding gaps are permitted. Nevertheless, short-term loans have increased considerably since the early 2000s and have thus led to a structural debt burden for many municipalities (Holtmann et al. 2017, p. 38). In such cases, the state oversight authorities play a specific role. They can appoint a “cutback commissioner” in order to balance the local budget (Gern and Brüning 2019, p. 201). Between 2012 and 2019, the financial situation of cities and local communities improved considerably due to the positive economic situation during the 2010s (Bertelsmann Stiftung 2019, A 18–19). However, since 2020, the local budgetary situation has become more dependent on financial allocations from higher levels due to tax defaults and add-on costs resulting from the COVID-19 pandemic and the economic crisis following the Russian war in Ukraine. Even though the state and federal level provided funds to eliminate local deficits, many

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municipalities continue to struggle with budgetary debt and see limited room for investment (Statistisches Bundesamt 2022a, 2022c, p. 13). The “financial emergency of municipalities” has various causes (Holtmann et al. 2017, pp. 29–49). Cities and counties often point out that the federal and state governments regularly transfer responsibilities for tasks to them without covering all associated costs. Generally, the principle of connectivity, which links the right to make political decisions with financial responsibility (“you pay for what you order”), has been enshrined in all state constitutions. It entitles local governments to be reimbursed for the mandated tasks they carry out. However, this constitutional principle cannot protect the municipalities entirely from further financial burdens, since the costs for the implementation of laws cannot be precisely estimated in advance. Therefore, the application of the connectivity principle regularly leads to conflicts between local authorities and the state government, which can often only be resolved by the state constitutional court (Chapter 13.2). The financial situation of a municipality also depends on its economic and social structure. Generally, East German municipalities have collected significantly lower trade tax revenues since the 1990s than their West German counterparts, but they have received higher financial allocations, co-funded until 2019 by the programme for the reconstruction of East Germany (“Aufbau Ost ”; Holtkamp 2012, p. 153). These grants-in-aid have significantly curbed the public debt in East German states. Therefore, per-capita debt was similarly low in Saxony (e693) and Brandenburg (e748) as in the economically and financially strong Southern states of Bavaria (e979) and Baden-Württemberg (e731; Bertelsmann Stiftung 2019, A 56). In contrast, debt burdens were particularly high in the municipalities of the Saarland (e3,522 per capita), Rhineland-Palatinate (e3,041) and North Rhine-Westphalia (e2,911). Against this background, there have been repeated demands for state governments to assist highly indebted municipalities. The government of Hesse played a pioneering role here—it provided debt relief and interest payment assistance in the amount of around e3.2bn within the framework of a “debt umbrella for municipalities” to local communities and counties in 2012. This programme was extended in 2018 with the “Hesse fund”, in which the state of Hesse took responsibility for further short-term loans in the amount of e6bn. Since then, the municipalities participating in this programme have had the option to become debt free overnight if they pay a third of their financial obligations (Duve and

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Kümpel 2020). Moreover, academics and politicians have discussed for quite some time whether and how the federal government might take on old debt incurred by municipalities (Junkernheinrich 2019). So far, the federal government has not agreed on a long-term policy that would free municipalities from their debt. Recent measures have focused on reimbursing the local level for the temporary collapse of local tax revenue due to the COVID-19 pandemic. In view of economic uncertainties and a growing portfolio of municipal tasks, the local level’s need for immense support from state and federal governments will remain a key issue.

14.2

The Institutional Setting

The institutional setting at the local level is regulated by the municipal constitutions (Gemeindeordnungen), on which the states decide autonomously. They determine which local institutions exist, how they are elected and what their powers are. Within this legal framework, the municipalities have only limited discretion in shaping their institutional structures and procedures via their own regulations and statutes. The historical roots of German municipal constitutions go back to the early nineteenth century. In 1808, the Prince of Hardenberg and Freiherr zum Stein introduced the Municipal Ordinance in the Kingdom of Prussia, which established the right of local self-government (Gern and Brüning 2019, p. 44). At the same time, the division between “state politics” and “local affairs” marked the start of democratisation on the local level (Wehling 2011, p. 305). However, the proportion of male propertyowning citizens who were allowed to vote at the local council elections was less than 10% of the population of these municipalities (Duchhardt 2007, p. 200). The council members elected the magistrate, a collegial executive body. The mayor was appointed by the King of Prussia after being nominated by the local councillors. Because the local councils always needed the magistrate’s approval for their decisions according to the revised municipal ordinance of 1831, this institutional arrangement was called a “true magistrate constitution” (echte Magistratsverfassung ). Citizens with voting rights were not only allowed to decide who occupied the municipal offices but were also obliged to take up these offices if they were elected themselves. This also marked the birth of the honorary office at the local level. The municipal tasks continued to increase in the nineteenth century with the social question, including welfare services for the poor. The

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years after World War I marked a period of crises and new beginnings for German municipalities (Rudloff 2007, p. 93). On the one hand, their scope of action was severely limited due to a permanent budgetary squeeze. On the other hand, local politics experienced further democratisation with the introduction of universal suffrage. At the time, there were more than 30 different municipal constitutions in the German states, with three predominant types. First, there was the aforementioned magistrate constitution, which applied to Eastern Prussia. Second, there was the Rhenish mayoral constitution (Rheinische Bürgermeisterverfassung ) in Western Prussia, where a mayor elected by the council headed the local government. Third, there was the Southern German council constitution (Süddeutsche Ratsverfassung ) in Bavaria and Württemberg, which gave legislative and executive powers to a council chaired by a mayor, who was directly elected in many municipalities. After the National Socialists seized power in 1933, local self-government was de facto abolished; the German Municipal Code of 1935 subordinated the municipal leadership to the centralised Führer principle (Matzerath 2007). After World War II, the municipalities were re-established even before the states and therefore became the nucleus of the Federal Republic of Germany (Gern and Brüning 2019, p. 65). The Allied occupation powers set different accents in designing the municipal constitutions. The US powers gave the Germans a far-reaching scope for action. Subsequently, Bavaria and Württemberg-Baden decided to reinstall the South German council constitution, while Hesse reverted to a specific version of the magistrate constitution in which the magistrate could not repeal decisions by the council (unechte Magistratsverfassung ). In Rhineland-Palatinate, occupied by the French, where municipal law was already shaped by Napoleonic law, the Rhenish mayoral constitution was reactivated (Groh 2007, p. 139). In the British Zone, North Rhine-Westphalia and Lower Saxony introduced the North German council constitution (Norddeutsche Ratsverfassung ), which provided for a dual executive modelled after the British system, i.e. a mayor elected by the council and a municipal director as the head of the administration, also elected by the council. In the Soviet Zone, a municipal ordinance created in 1946/1947 provided a formal guarantee for local self-government. However, it was soon superseded by the socialist principle of “democratic centralism”, which characterised the authoritarian regime of the GDR until 1989. With German unification, the (re-)establishment of the East German states and their directives creating democratic municipal constitutions,

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a new phase of municipal constitutional reforms also began in West Germany. While only Bavaria and Baden-Württemberg had provided for directly elected mayors before, all other states followed their model and subsequently introduced direct mayoral elections. Hesse was the first in this regard, although it remained the only state adhering to the magistrate constitution at the same time. Thereafter, the South German council constitution, with directly elected mayors, was adopted by other states in East and West Germany. Today, the municipal constitution that was originally in effect in the Southern states only provides the Germany-wide model for the local system of government (Fig. 14.2). A senior civil servant (mayor; in a county: county commissioner),3 elected by the citizens, is the head of the executive. The mayor or country commissioner’s core competences include leading the administration, guiding the heads of departments (aldermen/ alderwomen), preparing council decisions and representing the municipality (Heinelt et al. 2018, pp. 19–23).4 The council’s core competences include preparing the budget, making fundamental decisions, oversight of the mayor and electing the aldermen and alderwomen. Within this model of local government, the institutional relationships between the council and the mayor vary to some degree (Table 14.1). For instance, in Baden-Württemberg, mayoral candidates may only be nominated as individuals, whereas in Bavaria parties and voter groups make the nominations and in other states both forms are common. In Bavaria, Lower Saxony and North Rhine-Westphalia, the mayor and the council’s office terms are synchronised while in all other states the mayor has a longer term than the council. Except for Bavaria and BadenWürttemberg, all states provide for a recall of the mayor by popular vote. In Brandenburg, Mecklenburg-West Pomerania, Saxony-Anhalt and Schleswig-Holstein, the council is not chaired by the mayor but by one of 3 Only the municipalities of Hesse and Bremerhaven are headed by a collegial body (magistrate). 4 The official terms for local councils differ between and within the states: Rat (Lower Saxony); Gemeinderat or Stadtrat (Baden-Württemberg, Bayern, Rhineland-Palatinate, Saarland, Saxony, Saxony-Anhalt, Thuringia); Gemeindevertretung (Brandenburg, Hesse, Mecklenburg-West Pomerania, Schleswig-Holstein); Stadtvertretung (Mecklenburg-West Pomerania, Schleswig-Holstein); Gemeindeversammlung (Schleswig-Holstein); Stadtverordnetenversammlung (Bremen, Hesse); Rat der Gemeinde/Stadt (Nordrhein-Westfalen). In the following, we will always use the general term council to describe the elected body that represents citizens at local level.

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POLITICS AND ADMINISTRATION AT THE LOCAL LEVEL

Chair (mayor or council member)

Referendum

vote

(if rejected by the council) Local Council

Citizen initiative

Mayor

oversees elects

adopts/rejects

521

Alderwomen/ aldermen

direct trigger

elect

Local Administration

elect

Citizens

Fig. 14.2 The local system of government in Germany (Source Authors’ compilation)

its members. In Lower Saxony and North Rhine-Westphalia, the competences of the council are particularly broad. The council determines the portfolios of the local administration in Hesse, North Rhine-Westphalia and Saarland, while this is the sole responsibility of the mayor in Bavaria, Brandenburg, Lower Saxony and Saxony-Anhalt. The municipal constitutions of the states also differ in their electoral regulations (Table 14.2). The voting age for local elections has been lowered to 16 in eight states; only Bavaria, Hesse, Rhineland-Palatinate, Saarland and Saxony still maintain a voting age of 18. With the exception of Saarland (which has a proportional system with closed lists) and North Rhine-Westphalia and Schleswig-Holstein (which have a mixed-member proportional system), the council is elected everywhere by proportional representation with multiple votes and open lists. Unlike on the federal and state level, there is no legal threshold (Chapter 5). Open lists enable the voters to choose candidates from different parties or voter groups (the panachage procedure). In addition, they can cast several votes for the same candidate (the cumulative voting procedure) and cross out others on the list. This “voting à la carte” enhances the voters’ choices and limits the influence of political parties on the composition of the council. Moreover, open lists tend to favour independents and candidates from smaller parties. Finally, the German municipal constitutions provide for different institutions of direct democracy (Kost 2019). The opportunity to trigger a

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Table 14.1 Institutional powers of councils and mayors in German municipalities BW SN ST RP TH BY MV BB SH SL NI NW HE Personalisation of council elections Nomination of mayoral candidates Terms of councils and mayors Autonomy of management Organisation of portfolios Instruction right of the mayor Council chair Total value

3

3

3

3

3

3

3

3

2

1

3

1

3

3

2

2

2

2

1

2

2

2

2

2

2

2

3 3 3 3 2 1 3 3 3 3 1 1 3 3 3 3 3 3 3 1 3 3 1 1 2 2 3 2 2 3 2 3 2 1 3 1 3 3 3 2 3 3 3 3 3 3 3 3 3 3 2 3 3 3 1 2 1 2 2 3 20 19 19 18 18 17 17 17 16 15 15 12

2 2 1 1 1 12

Abbreviations BB = Brandenburg; BW = Baden-Württemberg; BY = Bavaria; HE = Hesse; MV = Mecklenburg West-Pomerania; NI = Lower Saxony; NW = North Rhine-Westphalia; RP = Rhineland-Palatinate; SH = Schleswig–Holstein; SL = Saarland; SN = Saxony; ST = Saxony-Anhalt; TH = Thuringia Notes Indicators capture the institutional powers of the council and mayor. The higher the index value, the stronger the mayor which also means a stronger adhesion of the institutional setting towards consensus democracy. Personalisation of council elections: 1 = closed lists; 2 = mixed system (differs depending on municipality size); 3 = options for cumulative voting and panachage. Nomination of mayoral candidates: 1 = only by parties and voter associations; 2 = by parties, voter associations and individuals; 3 = only individuals. Office terms of councils and mayors: 1 = concurrent election of council and mayor (office term: 5–6 years); 2 = elections not synchronised, with mayoral term of 5–6 years; 3 = elections not synchronised, with mayoral term of 7 or more years. Autonomy of management 1 = rights of reservation and retraction by the council; 2 = daily business transferred to collective administrative body; 3 = autonomy of the mayor. Organisation of portfolios: 1 = portfolios of aldermen/alderwomen determined by the council; 2 = portfolios of the mayor determined in agreement with the council; 3 = portfolios determined by the mayor. Instruction right of the mayor: 1 = no instruction right of the mayor over councillors; 2 = limited instruction right of the mayor; 3 = mayor has full instruction rights. Council chair: 1 = mayor has no voting rights in the council, council chaired by a council member; 2 = council chaired by mayor or mayor has voting rights in the council; 3 = mayor chairs and has voting rights in council Source Authors’ compilation according to Holtkamp and Bogumil (2016, p. 30)

citizen petition (Bürgerbegehren), by which a certain number of citizens may table an issue-based proposal, exists everywhere. If this proposal is supported by a sufficient number of voter signatures, it may trigger a citizen referendum (Bürgerentscheid) whose outcome is binding if a minimum participation threshold is reached. The quorums for citizen petitions and referenda vary between the states and even within some states depending on municipality size (Table 14.2). In addition, not all issues may be subject to a citizen referendum. For example, the mayor’s

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salary is not a permissible issue for popular vote. The range of issues for citizen petitions and referenda varies from state to state. It is relatively broad in Bavaria and Thuringia and particularly narrow in Brandenburg and Lower Saxony. Apart from this, most municipal constitutions provide for a council referendum (Ratsreferendum), where local councils may decide to let the citizens vote on a proposal. This option does not exist in Saarland, and in Brandenburg it can only be applied for the territorial restructuring of a municipality.

14.3

Local Governance and Policy-Making

Policy-making at the local level takes place between four poles of power: the council, the mayor, the administration and the citizens. Within and across the poles of this “quadriga”, the political parties also play a role; they become increasingly significant with the size of the municipality. Municipalities are the “nucleus of citizen participation” (Holtmann 2013, p. 792), since this is where the citizens get most frequently involved in politics within and beyond civil society organisations. They may also influence local politics by electing mayors and councils, through petitions and referenda, but also during councillors’ office hours, where they can present their issues to their local representatives. However, there is an evident paradox in citizen participation at the local level. While most states have increased the opportunities for local participation by introducing directly elected mayors and options for panachage and cumulative voting in council elections, turnout has further decreased. Whereas electoral participation in Germany was quite similar on the various political levels until the 1970s, it has fallen most significantly on the local level since then, so that it is “on average 10 to 20 percentage points lower than at the Bundestag elections” (Vetter and Remer-Bollow 2017, p. 196). In a similar vein, trust in local institutions has considerably diminished, although it is still higher than at the federal or state level (Holtmann 2013, p. 793; Holtmann et al. 2017, p. 11). At the same time, voter turnout varies within and across municipalities. In urban areas, the socioeconomic context crucially matters for political mobilisation (Schäfer 2012): the more precarious the conditions are in a city district, the lower the voter turnout will be. Moreover, there is a connection between the size of a municipality, its social homogeneity and political participation. In smaller local communities, where citizens personally know their political representatives, voter turnout tends to be higher than in city districts

16/18 Open

18/18 Open

16/18 Open

16/18 Open

16/18 Open

18/18 Open

18/18 Closed 1

BB

HE

MV

NI

NW

RP

SL

5

5

5

5

5

Multiple 5

1

3

3

Multiple 5

3

Multiple 6

18/18 Open

BY

Multiple 5

16/18 Open

Office term council (years)

List Number format of votes

10

8

5

8

7–9

6

8

6

8

Yes

Yes

Yes

Yes

Yes

Yes

Yes

No

No

Council

Citizens or council Council

Council

Council

Citizens or council Council

–

–

5–15

5–9

3–10

5–10

2.5–10

3–10

10

3–10

4.5–7

Council

Council

Council & state authority Main council committee Council

Council

State authority

Council

Council

+

+

++

+

+

++

+

+++

++

Simple majority –

2/3 majority

Simple majority

2/3 majority Simple majority

2/3 majority Simple majority Simple majority

Quorum council referendum

30

15

10–20

20

25

15–25

25

10–20

20

Quorum CR (% RV)

Institutions of direct democracy (citizen petition, CP; council referendum; citizen referendum, CR)

Initiative Quorum Admissibility Scope for recall CP (% RV) examination of CP issues CP

Mayoral recall

Office Option term of mayor recall (years)

Office term council/mayor

Electoral system council

BW

State Voting age

Table 14.2 Electoral systems and institutions of direct democracy in German municipalities

524 F. GROTZ AND W. SCHROEDER

16/18 Open

16/18 MMP

16/18 Open

ST

SH

TH

5

5

3

5

Multiple 5

3

3

6

6–8

7

7

Yes

Yes

Yes

Yes

Citizens or council Council

Citizens or council Council

4.5–7

4–10

4.5–10

5–10

Council

State authority

Council

Council

+++

++

+

++

Initiative Quorum Admissibility Scope for recall CP (% RV) examination of CP issues CP

2/3 majority

2/3 majority Simple majority

2/3 majority

Quorum council referendum

10–20

8–20

20

25

Quorum CR (% RV)

Institutions of direct democracy (citizen petition, CP; council referendum; citizen referendum, CR)

Notes For abbreviations of the German states, see Table 14.1. Voting age: first figure refers to minimum age for suffrage, second figure to minimum age for candidacy. List format: in case of mixed-member proportional representation (MMPS), individual candidature and party lists. Number of votes: multiple = as many votes as seats to be filled. Office term of mayor: intra-state variations according to size of municipality. Quorum CP: minimum number of signatures in percent of registered voters (RV); intra-state variations according to size of municipality. Scope of issues CP: Number of issues admissible to be voted on (high: +++; medium: ++; low: +). Quorum council referendum: quorum in the council in order to trigger a referendum. In Brandenburg only admissible for territorial restructuring of municipalities. In Lower Saxony only for repeal of a referendum within a two-year blocking period. Quorum CR: minimum turnout in percent of registered voters; intra-state variations according to size of municipality Sources Authors’ compilation according to Kuhlmann and Bogumil (2019), wahlrecht.de and mehr-demokratie.de

18/18 Open

Office term council (years)

List Number format of votes

Mayoral recall

Office Option term of mayor recall (years)

Office term council/mayor

Electoral system council

SN

State Voting age

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with high turnovers of residents and weaker social capital (Heinisch and Mühlböck 2016). The use of direct democracy on the local level has increased overall in the recent past. Between 1956 and 1989, when only Baden-Württemberg allowed for citizen petitions, 287 such initiatives were launched (Rehmet et al. 2020, p. 15). All states had introduced this option by 2005, and since then, there have been around 300 cases per year (Rehmet et al. 2020, p. 16). Between 1956 and 2019, 6,737 citizen petitions were launched, with 2,574 in Bavaria alone (Rehmet et al. 2020, p. 13). These figures show the enormous variation of direct democratic practice in German municipalities: there are regional and local strongholds but also many places where no citizen petition has taken place so far. Currently, many citizen petitions deal with issues of transport and energy supply. Around 60% of all petitions fail because they are not in conformity with existing legal regulations. Furthermore, most of the proposals that make it to a referendum are formally rejected by popular vote. Nevertheless, some citizen petitions prove to be successful—either the council adopts the issue completely or it accepts a relevant compromise after negotiations with the initiative group (Kost 2019). The relationship between councils and mayors is highly significant for local governance. Since certain powers can only be exercised by the council or by the mayor, the question is which of these bodies dominates and what effect this has on the workings of the local system of government (Holtkamp 2008). Generally, the stronger the competencies of the council, the more the local system will function like a majoritarian democracy, where the council majority is usually structured along party lines and forms the actual centre of power. Vice versa, if the mayor is the “executive leader” and the party discipline in the council is weak, the patterns of interaction tend towards consensus democracy. The institutional strength of council and mayor differs from state to state (Buß 2002; Holtkamp 2005; Egner 2007; Table 14.1). In BadenWürttemberg, where the mayors determine the political agenda and have organisational prerogatives within the local administration, they are also politically strong, while their counterparts in Hesse are the weakest (Heinelt et al. 2018, p. 24). As far as council powers are concerned, the picture is reversed. In this respect, Hesse is at the top and BadenWürttemberg at the bottom. The other states range somewhere between these two poles. The actual patterns of local governance correspond to these differences in the formal power distribution (Holtkamp and

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Bogumil 2016, p. 30). For example, local politics in Hesse and North Rhine-Westphalia are characterised by patterns of majoritarian democracy, where the power of local government mainly rests on the majority in the council. In Baden-Württemberg, Rhineland-Palatinate and the East German states, patterns of consensus democracy dominate, as there is no clear division between government and opposition groups in the councils and the mayor plays a central role in the decision-making process. Local governance is not only determined by the distribution of institutional powers but also by the “degree of party-politicisation” (Wehling 1991, p. 151), which varies considerably across and within individual states (Holtmann et al. 2017, pp. 127–145). The size of the municipality is of utmost importance here. In larger municipalities, competition between political parties is more intense, election campaigns without (financial) support from local party organisations are more difficult and the candidates’ party affiliation is more relevant for voters than direct personal contact. In small municipalities, the choice between individual candidates is often more limited and the personality of the candidates is more important for voting decisions than their party affiliation. Furthermore, local and regional political culture has a lot of impact on whether the parties represented in the federal and state parliaments are also dominant on the local level. For instance, free voter associations and citizen initiatives have traditionally been strong forces in local politics in Southern Germany and have become established in some other regions as well (Vetter and Remer-Bollow 2017, p. 199). These associations of citizens concentrate on their respective municipality and consider themselves expressly as “non-parties” engaged in “ideology-free issuebased politics” (Holtmann 2013, p. 812). Examples include electoral lists proposed by voluntary fire services and other local organisations, standing as “replacement parties” (Holtkamp and Bogumil 2016, p. 13). Especially in municipalities where the traditional parties are weakly institutionalised, voter associations may fill in “the gaps between citizen participation and local representation” (Holtmann 2013, p. 811). Within the last few years, there has been further evidence of a “departy-politicisation” of local democracy (Gehne 2013). The Germany-wide expansion of direct mayoral elections has led to an increase in the number of independent mayors, while the overall ambition to engage in political competition on the local level has decreased. For example, the proportion of municipalities in Hesse led by an independent mayor nearly tripled between 1993 and 2017 (Klein and Lüdecke 2018, p. 136). Current

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office holders can frequently expect to be easily re-elected simply because no one else is running (Klein and Lüdecke 2018, p. 138). Particularly in smaller municipalities, it can sometimes be very difficult to motivate qualified persons to stand for local elections since being a (honorary) mayor or councillor is seen as unattractive. Nevertheless, municipalities are still “schools of democracy” because political elites occupying public offices on higher levels have usually been socialised and recruited there (Wehling 2011, p. 306). This is because municipal offices provide a seemingly inexhaustible reservoir of politically active citizens. More specifically, there are around 200,000 seats in local councils throughout Germany, but only around 1,900 seats in the state parliaments and around 600 seats in the Bundestag (Jun 2015, p. 21). Indeed, 43% of East German and 58% of West German members of the Bundestag have prior political experience on the local level; in the state parliaments, the respective shares of members of parliament (MPs) are 49% (East) and 80% (West; Edinger 2009, p. 193). Finally, the municipal administration constitutes an independent pole in the quadriga of local governance. This is especially true for large municipalities. The city of Munich, for instance, employs around 40,600 administrative staff members, which is more than the EU Commission. While the German local administration was considered an international model for a long time, administrative research found in the 1990s that it suffered from a lack of modernisation and efficiency (Bogumil 2017, p. 14). Relevant reform policies were based on a model of new public management (NPM) that aimed at reorganising local administrations like private businesses to enhance their performance (KGSt 2013, p. 3). In particular, NPM was about privatisation and introducing elements of competition into local services. Furthermore, intra-administrative procedures should become more transparent and efficient by performancebased budgeting (replacing the traditional cameralistic model), contract management (governance through setting policy targets) and other measures (Kuhlmann et al. 2008). From the mid-1990s to the mid-2000s, many local administrations were reorganised along these lines, even if the NPM concept was hardly implemented in its entirety (Bogumil 2017, p. 17). The outcome of these reforms was mixed. While local administrations became more oriented towards citizens and customers, the financial expenditures remained almost unchanged. In addition, governance capacities were overall weakened, and job satisfaction among administrative staff declined (Bogumil

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2017, pp. 18–19). Against this background, NPM has lost its status as an administrative reform model. Instead, there is a trend towards a recentralisation and re-hierarchisation of administrative structures and procedures. Nevertheless, the administrative reforms of the 1990s had a lasting impact. The efficiency of local administrations was increased by the new local funding management, which includes, among other things, commercial accounting of the kind used in the balance sheets of private businesses. This more transparent budgeting might also help the municipalities to cope with future financial burdens, such as pension entitlements (Bogumil 2017, p. 25). The efficiency of local services not only depends on the organisational structure of the administration but also on the size of the municipality. The overall number of German municipalities decreased from 16,128 in 1990 to 10,789 in 2021 due to territorial reforms, in which many municipalities were merged (Kuhlmann et al. 2018; Statistisches Bundesamt 2019, p. 29; 2022b). These mergers were usually launched by the state governments in order to increase local administrative efficiency. However, they have often been met with embittered resistance from local citizens, who worried about a decrease in public services through enlarged municipalities and perceived them as a danger to local identity and belonging. Therefore, such territorial reforms have become a lot rarer in West Germany. Occasionally, the fusion of municipalities is made dependent upon the positive result of a citizen referendum. In East Germany, creating larger local units is still on the political agenda but has also proved difficult to implement, as the failed territorial reforms in Brandenburg and Thuringia in 2017 show (Klausch 2020). Therefore, functional alternatives to the fusion of municipalities are increasingly under consideration, such as merging individual local administrations into joint agencies or the establishment of special purpose associations (Hesse and Götz 2006). Overall, there is no general answer to the question of “who governs?” (Dahl 1961) in German municipalities. It depends on the municipal constitution, the constellation of political actors—and especially on the strength of local parties—as well as on the size of the municipality. In many cases, mayors enjoy a structural advantage over the other power poles in the quadriga. This is particularly true with respect to voluntary councillors, who have much less access to information and administrative

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support than the directly elected mayor. Nevertheless, larger municipalities in particular have seen an ongoing professionalisation of local elites since the 1990s. Many members of city councils are part-time or fulltime politicians now (Reiser 2006). Notwithstanding this development, the mayor remains the “face of the municipality” without becoming the “sole ruler for a limited time”.

14.4

Local Interests in the Multi-level System

The performance of German municipalities in fulfilling their tasks depends essentially on political decisions by the states, the federation and the EU, where local governments have no formal powers to co-determine policymaking. However, the local communities, cities and counties have their own interest associations, which represent them on the higher levels of the political system and seek to assert their interests there. On the state level, the local government associations (LGAs) are organised in three branches.5 The Association of Cities (Städtetag ) represents both cities that are part of a larger county and cities that are not part of a county. The County Association (Landkreistag ) is the interest organisation of the counties, while the Association of Towns and Municipalities (Städte- und Gemeindebund) incorporates smaller towns and municipalities as its members. These local interest organisations are legally registered associations with voluntary membership (Leidinger 1980, p. 163).6 Nevertheless, their degree of organisation is very high, since almost all towns, cities, municipalities and counties belong to at least one of these associations. Some municipalities even hold dual memberships, for example, of the Association of Cities and the Association of Towns and Municipalities. Their membership differentiates LGAs from classic interest groups since the municipalities are “part of the political-administrative system” (Reutter 2001, p. 149) and “draw their legitimation immediately from democratic elections” (Landsberg 2007, p. 978). LGAs also play a distinct role in democratic policy-making. They participate in performing 5 In Berlin, Hamburg and Bremen, only the Association of Cities is active. Vice versa, the Saarland and the East German states only have branches of the County Association and the Association of Towns and Municipalities (Brüsewitz 2017, p. 12). 6 In Bavaria, the local interest organisations are corporations in public law. Furthermore, there is another regional interest organisation called the Association of Bavarian Districts (Verband bayerischer Bezirke).

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531

public tasks (Reutter 2001, p. 152) and are, unlike other associations, “not beholden to sectoral or economic interests” but to the common good (Landsberg 2007, p. 978). At the same time, LGAs offer the “classic” services of interest organisations for their members, such as legal advice and the exchange of information and experiences (Chapter 7.1). Moreover, they represent local interests in the legislative process, where they are usually involved at an early stage. State law7 grants local associations the right to be involved in the drafting of legislation. A frictionless flow of information and communication in the policy process is in the interest of both sides since the LGAs play an important role in the implementation of legislation (Brüsewitz 2017, p. 213). The leadership of LGAs holds honorary positions. They are recruited among active local politicians, i.e. mayors and county commissioners. When their period in the local office ends, their work in the association usually ends as well. The most important recruitment criteria for LGA functionaries are their expertise, the visibility of their (elected) office and their party affiliation. However, partisanship plays no decisive role in the work of LGAs since they are primarily oriented towards the common interest of their municipalities. Therefore, decision-making within the LGAs follows the consensus principle. It is also quite telling that they present themselves externally as the “local family”, although political parties attempt to influence their positions through their own local branches and working groups. The image of LGAs as non-partisan has been essential for their lobbying success. Although they do not have a formal veto power in the legislative process, they can influence it substantially by coordinated action and through their expertise (Brüsewitz 2017, p. 209). The representation of local interests on the federal level shows many similarities to the state level. Here, the local associations are also organised in three branches, in the form of the Association of German Cities (Deutscher Städtetag, DST), the German Association of Towns and Municipalities (Deutscher Städte- und Gemeindebund, DStGB), and the German County Association (Deutscher Landkreistag, DLT). These organisations are second-degree associations because their members are not individual municipalities but the respective state associations 7 North Rhine-Westphalia is the only state that does not regulate the participation of LGAs in the legislative process through law but relies entirely on the rules of procedure of the ministries and the state parliament.

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(Chapter 7.1). Only the DST, which does not have organisations in every state, accepts direct memberships by cities. DST, DLT and DStGB jointly form the federal union of the LGAs (Bundesvereinigung der kommunalen Spitzenverbände), which aims to facilitate coordinated action vis-à-vis federal policies that affect the entire local level. However, larger cities, smaller municipalities and counties are often affected by federal legislation in different ways, which makes it difficult to develop a joint strategy of interest representation and sometimes leads to open conflict between the three umbrella associations. Lobbying efforts by the associations of German municipalities are not only directed towards the federal and state level but also towards the European Union (Chapter 3). For several reasons, the EU has gained considerable significance for local communities, cities and counties. First, local governments are key players in the administrative implementation of European policies. According to estimates, they are responsible for implementing around three-quarters of EU legislation in Germany (van Bever et al. 2011, p. 16). Second, many EU directives critically affect local self-government. For instance, public services and infrastructure in the area of welfare have repeatedly come under scrutiny from the European Commission. Since the economic activities by municipalities necessary for public welfare services were originally exempted from free market competition, they came into increasing conflict with the competition rules from Brussels (Sturm and Pehle 2012, pp. 119–123). As a consequence, the local monopolies in energy, gas and water supply were dismantled after the 1990s. Third, German municipalities can benefit from EU regional policy. In particular, economically weak regions (those with less than 75% of the average GDP per capita), which long included East German states, may receive considerable sums from the European regional and cohesion funds. This enables subsidies to flow to local infrastructure projects like bridges, sports venues, museums or Wi-Fi in public spaces (“WiFi4EU”). However, EU funding requires a proactive approach by the municipalities, since they must apply for the projects in question, organise matching funds and make advance investments. For these reasons, the German municipalities and their umbrella associations seek to influence EU policy-making through as many channels as possible (Münch 2006). One of these channels is the European Committee of the Regions (CoR), which is composed of representatives of regional and local territorial units (Art. 300, para. 3 TFEU). CoR has a right to be heard in the EU legislative process and turn to the

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European Court of Justice in case of violations of the subsidiarity principle (Chapter 3.2). However, only 24 of its 350 members come from Germany, and among these, only three are assigned to LGA representatives, i.e. one to the DLT, DST and DStGB, respectively. Moreover, the three local umbrella associations have had a joint liaison office in Brussels since 1991 (Struve 2006, p. 339). In parallel, further local organisations from Germany maintain EU offices, such as the Bavarian municipalities, the German Association of Local Public Utilities or the FrankfurtRhineMain Metropolitan Region. Finally, there is also a transnational association, the Council of European Municipalities and Regions (CEMR), founded as early as 1951 and currently representing 100,000 municipalities from 40 European countries. CEMR also attempts to lobby the EU institutions (Commission, Council, Parliament) regarding local affairs. However, given the extremely high number and heterogeneity of its members, the positions of the CEMR only reflect the lowest common denominator (Holtmann et al. 2017, p. 194). The EU-related activities of the German municipalities do not end with the representation of their interests on the supranational level. In addition, there are numerous transnational projects and networks at local level. The German municipalities are involved in 6,048 cross-border partnerships (Keller 2018, p. 8). Cooperations with French municipalities are most common (2,281), followed by those with municipalities in Poland, the UK and Italy. All these partnerships ultimately aim at deepening European understanding through “bottom-up networks”. In this context, Article 24, paragraph 1a of the Basic Law permits the states, with the consent of the federal government, to “transfer sovereign powers to transfrontier institutions in neighbouring regions” (Storbeck 2016, p. 230). Furthermore, cross-border cooperation between municipalities also takes place without entailing a transfer of sovereignty through international treaties and legislation. For instance, the Euro District Strasbourg-Ortenau has supported the construction of a tram line across the Rhine in the past and now promotes a cross-border drug substitution ambulance and organises joint sports events. Overall, German municipalities have diverse abilities and opportunities to act across levels and borders and thus represent their specific interests in the multi-level system. In this respect, large and financially powerful municipalities in metropolitan regions with highly engaged and professional politicians have a much better starting position than others. Notwithstanding this, all German municipalities benefit enormously from

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their umbrella associations because they provide institutionalised access to political decision-makers on the higher levels that the municipalities do not have through the Basic Law.

14.5

Conclusion: Nucleus of Democracy or Crisis of Self-Government?

Even though German municipalities are not sovereign entities and depend largely on political decisions made at EU, federal and state level, they are the local foundations of the political system. On the input side, municipal institutions have their own democratic legitimation, which needs to be constantly renewed by the active involvement of citizens in local self-government. This is why municipalities are seen as the nucleus of democracy. On the output side, they obtain legitimacy through public services and infrastructure that they are expected to provide by an efficient and well-performing local administration. Whether they fulfil these output-side demands is under permanent scrutiny, which occasionally leads observers to diagnose a crisis of self-government. The output-related debate about local self-government has primarily focused on the size of municipalities, their administrative structure and their financial resources. In order to improve the performance of local administrations, waves of territorial reforms have occurred since the 1960s, in which local communities and counties have been merged in order to create larger administrative units. These fusion processes have also substantially shaped the public discourse about the role and function of municipalities and, at the same time, led to embittered disputes between local representatives and state governments. In retrospect, there is evidently no “ideal working size” for local communities and counties. Nor have the functional problems resulting from the small size of many municipalities been completely resolved. In order to carry out their manifold tasks, local governments are seeking additional sources of revenue, such as higher fees and taxes, and looking for ways to make their service provision more affordable and impactful. The administrative reforms that have taken place under the label of NPM since the mid-1990s are part of this context. Through the privatisation of public tasks, public-private partnerships and the modernisation of administrative structures and procedures, a partial consolidation of local budgets and a continuation or even extension of their services has

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been achieved. Nevertheless, many reforms were not successful or were even partially reversed (Sack 2009). Concerning financial resources, the over-indebtedness of many cities and local communities is the main issue. One reform option under discussion is that the federal and state governments assume the old debts. This debt relief, affecting approximately 2,500 highly indebted municipalities, combined with an obligation to observe budgetary discipline, aims to facilitate investment in local infrastructure. Even though financial support to compensate for the collapse of trade tax revenues during and after COVID lockdowns has helped municipalities short-term, a long-term and holistic approach to tackle budgetary deficits remains necessary. At the same time, there are enormous differences between the municipalities, not only economically but also in terms of administrative performance, which is why no uniform pattern can be identified. Hence, we cannot conclude that there is a general crisis of local self-government. The debate about municipalities as the nucleus of democracy points to various critical aspects. These include the low level of political participation and the declining presence of political parties at the local level. In the early 1990s, substantial reforms of municipal constitutions took place with the aim of enhancing the options for citizen participation and revitalising civil society on the local level. In this context, the direct election of mayors, modelled on the South German council constitution, was introduced nationwide, local electoral systems were personalised and comprehensive institutions of direct democracy were established. The hopes associated with these reforms have not completely been fulfilled. On the contrary, voter turnout at local elections has decreased in many cases. At the same time, a growing number of citizen initiatives has emerged, along with a rising level of citizenship engagement, particularly in the fields of local housing, transport and energy policy. Finally, the state of local political parties, particularly in rural and smaller municipalities, is cause for concern. The most visible signs of the “de-party-politicisation” of local democracy are the growing significance of voter associations and the increasing group of independent representatives, from mayors to council members. Being the “nucleus of democracy” not only means that the citizens are most directly confronted with politics in the municipality but also that their politicians (can) become active on higher levels due to their experience in local party branches and local government.

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In spite of all these problems and challenges, municipalities remain the local foundation of German democracy. This is evident not least in the fact that academics and politicians have not accepted the mentioned deficits of local government as unchangeable realities but constantly developed new approaches for reform in order to improve the quality of local participation and to optimise local governance. The fundamental questions about the local roots of democracy and about the performance of local self-government form two sides of the same coin that determines the inclusiveness and effectiveness of the entire political system.

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CHAPTER 15

A Resilient Democracy? The German Political System Under Scrutiny

In this final chapter of our book about the political system of Germany, we will summarise the main results of the previous chapters and place them in a broader context. The focus is on the “resilience of democracy” (Burnell and Calvert 1999; Holloway and Manwaring 2022). This means the ability of a democratic system to maintain its capacity to function and perform, even under difficult conditions (Ganghof 2012).

15.1 From a Success Model to a Democracy in Crisis In retrospect, the Federal Republic of Germany (FRG) has had a very positive track record. Before its foundation, Germany had not only sparked two world wars but was also responsible for the “rupture in civilisation” (Diner 1988) of the Shoah. Two dictatorships, the Nazi regime and the socialist GDR, existed consecutively on German soil. After the unconditional surrender in 1945, the country was divided and found itself on the opposing sides of the East-West conflict. Therefore, there was no way to anticipate in 1949 that the FRG would evolve into one of the most respected democracies, most successful economies and most inclusive welfare states in the globe. Today, reunified Germany, with 84 million

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inhabitants (1.0% of the world’s population), is not only the most populous EU member state and the largest economy in Europe by far but also the fourth strongest national economy after the United States, China and Japan, with 4.0% of global GDP (data for 2022; IMF 2023). In international democracy rankings, the FRG is among the top performers and even occupies the first place among the countries with larger populations (V-Dem Institute 2022, pp. 45–47). What is noteworthy here is not only the high level of democracy overall but also the extraordinary stability that has distinguished the German political system over decades (Wolfrum 2006, p. 13). For some time now, however, Germany and other Western democracies have been confronted with a number of new critical challenges. These include, at the international level, geopolitical shifts mainly linked to the rise of China as a global power and the resurgence of an authoritarian and aggressive Russia, but also the globalisation of financial markets, increasing migration, climate change and further mega-trends that need a coordinated approach across national borders. Domestically, there are demographic changes, the digital and ecological transformation of economy and society, growing inequality between regions, social groups and individuals and an aggressive right-wing populism, which are challenging the established democratic institutions and affecting their social acceptance. As a result, there are more and more observers diagnosing a crisis of representative democracy or even warning about its collapse (Merkel 2013; Mounk 2018; Levitsky and Ziblatt 2018). How resilient is the German political system against this backdrop? How could problems of democratic legitimacy and performance be counteracted? Even if it is nearly impossible to provide conclusive answers to these questions, we will try to outline the most important changes in democratic governance in the FRG in the ten theses below. We will also assess the significance of these changes and reflect on potential options for reform. In so doing, we are primarily interested in the interdependence between established structures and path dependencies on the one hand and the dynamics of change on the other hand. The first three of our theses focus on the domestic and international context of the German political system. Thesis 1 reiterates the general finding that democracy in the FRG, which has emerged as a success model in the last few decades, is under pressure, although its main institutional structures have remained fairly stable and largely unchanged. Theses 2 and 3 elaborate on the changed environment at the international and

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national level. The resulting consequences for the German political system are discussed in the subsequent four theses, which refer to the structural dimensions presented in this book. Thesis 4 discusses the transformation of the democratic public space linked to the digital hybridisation of the media system. Thesis 5 addresses the decreasing capacity of political parties and associations to include the citizenry in the process of political will formation and to shape public policies on their behalf. Thesis 6 focuses on the functional changes in parliamentarism and the shifts in the horizontal separation of powers while Thesis 7 reflects on new tendencies in the federal multi-level system. In the last three theses, we will discuss the perspectives for intervention resulting from the preceding analysis. Thesis 8 pertains to the “Europeanness” of the German domestic institutions and actors as the most important prerequisite for co-determining the further process of European integration and for strengthening democratic scrutiny in the EU multi-level system. Thesis 9 discusses the opportunities and limits of various options for democratic innovation. Finally, Thesis 10 addresses the most significant task in the years to come, which has gained even more significance through the COVID-19 pandemic and the Russian war in Ukraine: how to make German democracy resilient in times of crisis.

15.2 Ten Theses on the Performance of the German Political System 1. German democracy under pressure: decreasing performance and institutional persistence The Federal Republic of Germany is one of the political systems with particularly strong elements of “negotiation democracy” (Lehmbruch 2003) or patterns of “consensus democracy” (Lijphart 2012; Chapter 1.1). Several of these structures are firmly rooted in German state and constitutional traditions, such as cooperative federalism (Chapter 4), the Bundesrat (Chapter 11) or the proportional electoral system (Chapter 5.1). Moreover, in view of the totalitarian Nazi dictatorship, the mothers and fathers of the Basic Law took precautions against unbridled majority rule, through the unchangeable core of the constitution, the comprehensive catalogue of fundamental rights and the establishment of the Federal Constitutional Court as the final body of judicial review

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(Chapters 2 and 12). The lessons they learned from the failure of the Weimar democracy also included the strengthening of the head of government versus parliament and the head of state, which largely corresponds to the majoritarian model of democracy (Chapter 10). Thus, Germany is not a pure consensus democracy. Its political-institutional centre consists of a parliamentary government embedded in a fine-grained network of checks and balances (Chapter 9.1). The institutional framework of the Basic Law promoted the inclusiveness and efficiency of political will formation and decision-making during the first decades. Hence, the FRG seemed to incorporate the typical advantages of majoritarian and consensus democracy. It also stood in clear contrast to the first German democracy: “Bonn is not Weimar” (Allemann 1956) became a well-known dictum. However, the successful performance was not just due to the constitutional provisions in the Basic Law but first and foremost due to the capacity of the political parties and associations to shape public policies that were broadly accepted by the citizens under quite favourable international and socioeconomic conditions. Since the 1990s, the performance of German democracy has been declining in terms of its political inclusiveness and decision-making effectiveness. In this context, reunification marked an important turning point, since the new Federal Republic of Germany saw a sudden increase in socioeconomic and sociocultural heterogeneity, while the political and economic transformation of the former GDR demanded substantial adaptation, primarily from East Germans. Nevertheless, social change had already accelerated in the old FRG since the late 1960s and continued unabated after 1990. This gave rise to many more challenges and problems for inclusive and efficient policy-making (Thesis 3). At the same time, Germany’s international context also underwent fundamental changes, which limited the scope for domestic political actors and required more capacities for action (Thesis 2). In all of this, it is remarkable that the institutional structures of German democracy have remained highly stable. However, democratic performance has substantially changed since the intermediary organisations—such as the party, association and media systems—have been transformed as well (Theses 4 to 7). Therefore, the move of the German capital from Bonn to Berlin in 1999 was not purely symbolic. Just as Bonn was not Weimar, Berlin is no longer Bonn.

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2. International context: From the protective Western integration to the quest for a proactive role At the FRG’s foundation and in its initial years, the active role of the Western Allies was of paramount importance. It resulted in a lasting orientation towards the West, which has also become an essential prerequisite for Germany’s domestic political stability. In terms of foreign and security policy, the Westbindung worked mainly through NATO membership (since 1955) and a close relationship with the United States, which had a special position among the Allies, both as a protective power against the Soviet threat and as a supporter on the path to German unification. In another way, European integration has been of extraordinary significance for the international embedding of German democracy. From the perspective of its neighbours, the division of Germany was a guarantor of peace and security in post-war Europe. Economic integration through the European Communities initially helped the FRG to join the circle of Western democracies and put an end to Germany’s “unique historic path” (Sonderweg ). In the course of time, Germany and France became the actual “engine of European integration”, fostering the gradual process of deepening and widening the European Union without taking on a hegemonic role. The turning point of 1989/90 brought Germany not only the good fortune of reunification but also manifold challenges (Spohr 2023). Since the 1990s, the EU has been deepened and widened in several steps. Today, it consists of 27 member states and has comprehensive legislative powers in numerous policy areas. As the largest and economically most powerful member state, Germany has a leading position within the EU, while also acting as a “broker” (Harnisch 2014, p. 26). However, given the stronger heterogeneity of national interests, it is increasingly difficult to arrive at common positions on the EU level, although many matters are decided there that are of great significance for the member countries. This is illustrated by the various crises that have followed one another at short intervals since 2008 and needed effective solutions by the EU (the global finance crisis, the euro crisis, the refugee crisis and the COVID-19 crisis as well as the Russian war against Ukraine; see also Genschel and Jachtenfuchs 2018). In parallel, the Euro-Atlantic order of stability gradually began to crumble with the collapse of the Soviet Union and the end of the Cold War. Instead of an “end of history” (Fukuyama 1989), many armed

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conflicts and wars erupted from the 1990s onwards, from Eastern Europe and the Balkans to North Africa and the Middle East. These were partly due to unresolved national conflicts, partly linked to Islamic terrorism and partly connected to the resurgence of Russia as an imperial power. At the same time, the rise of China and other Asian countries (such as India and Indonesia) created an increasing challenge for the United States, which is about to shift its attention and resources there. Against this background, Germany has been confronted with growing demands to join international peace-keeping missions and invest more in its own (military) security. For quite a long time, the redefinition of Germany’s role in foreign and security policy moved slowly, with a lot of contradictions and tensions, as the debates around the Kosovo deployment of the Bundeswehr in 1999 or on the increase of the military budget starting in the late 2010s showed (von Krause 2019; Rinke 2009). These contradictions and tensions became particularly obvious with the Russian war of aggression against Ukraine beginning on 24 February 2022 (Sasse 2022). Three days later, Chancellor Scholz proclaimed a complete reversal of German security policy (“Zeitenwende”) in a historic speech to the Bundestag, and parliament approved a special fund of e100 billion for the modernisation of the federal armed forces. Nevertheless, Germany has remained committed to its hesitant foreign policy course, especially in its military support for Ukraine, even though neighbouring states have repeatedly called for Germany to play a leadership role. Despite this criticism, Germany has overall become a reliable player in international crises, balancing the tensions between military support and the containment of wars. Last but not least, several autocratic and illiberal regimes have grown in confidence during the last few years, while many Western countries have struggled with governance problems and dwindling social acceptance of democracy. In particular, China has emerged as a systemic alternative to liberal democracy, with a system that links economic prosperity, technological progress and mass consumption on the output side with authoritarian structures and control of its citizens on the input side. Even some EU countries like Hungary and Poland are currently ruled by governments that use their parliamentary majorities to undermine democracy and the rule of law. These “new authoritarianisms” present a particularly difficult challenge, since Germany trades with them and thus benefits economically, while its criticisms of their violations of human rights and the rule of law obviously carry little influence. This makes the

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FRG itself vulnerable to the criticism of betraying its own fundamental values and pursuing a foreign policy of double standards. 3. Socioeconomic and sociocultural context: From an agenda of inclusion to the practice of exclusion From early on, the Federal Republic of Germany has followed the model of a social market economy. This system of “cooperative capitalism” claims to link economic freedom with social balance and thus to promote social inclusion. In its ideal-typical form, it is characterised by institutions where the inherent conflicts between capital and labour are negotiated and resolved by consensus. Under conditions of strong growth rates, full employment and a division of gender roles in terms of paid employment (men go out to work while women are responsible for the household and children), the FRG was characterised by a high degree of social homogeneity in the 1950s and the decades that followed. This was also possible because the incomes of an overwhelming majority of employees were regulated by collective bargaining agreements between the employers’ associations and the trade unions. The situation gradually changed in the 1980s (Schroeder 2014, pp. 32–33). As the state partially retreated from regulating socioeconomic change, the negative consequences of globalisation and technological transformation for less qualified and less mobile workers became increasingly obvious. Since the trade unions also got weaker, a dynamic of inequality set in during the 1990s, which was new to Germany. Since that time, capital and corporate income as well as the earnings of some top groups have become decoupled from the general income development. Conversely, the proportion of those in the lower income groups who are permanently dependent on private support or state assistance has grown. The instruments of collective bargaining and fiscal redistribution (income and corporation tax) also lost acceptance, were gradually reduced or dismantled, and thus lost reach and effectiveness. Apart from the individual income differences, regional disparities have also increased. While it is true that the economy of East Germany was integrated into the national and international value creation chains through reunification, it was not possible to build up economic structures with high levels of research and development there. These constraints limited the opportunities for large numbers of employees to earn high

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incomes. Moreover, the East German states experienced higher mass unemployment for a substantial period of time. Although aggregated unemployment figures have declined within the last ten years, the low wage sector is still extraordinarily strong in East Germany, which has cemented the socioeconomic divide between East and West. This has been accompanied with higher expectations of public services on the part of the East German population as well as a stronger willingness to accept or even support authoritarian politics and policies, such as those promoted by right-wing populists (Decker et al. 2022). These mental patterns partially result from historical legacies and from the negative experiences of economic and political transformation (Pickel and Pickel 2020). At the same time, there is a significant relationship between social inequality and extremist attitudes, which also exists in West Germany. The rise of the new social movements after 1968 marked a watershed in Germany’s sociocultural development, as it reflected a lasting shift from materialist to post-materialist values. This “silent revolution” (Inglehart 1977) was also connected with political demands for enhanced political participation as well as for the legal and actual equality of women and societal minorities. This emancipative politicisation of society essentially contributed to the further advancement of German democracy. With the increasing trend towards individualisation, the ties to traditional “sociomoral milieus” (Lepsius 1966) and participation norms also diminished. This not only led to higher electoral volatility but also increased the social selectivity of political participation. Citizens with lower levels of education and income participate less often in elections and use other forms of participation less frequently than citizens with a high socioeconomic status (Chapter 5.2). During the last few years, societal rifts have become more apparent, even beyond the East-West divide. Economically, they manifest themselves in the divergence between export-oriented key industries, mainly located in booming regions with modern infrastructure, and businesses beyond the high-tech sector, mostly located in rural areas in the periphery. This corresponds to the situation in the labour market, where a sharp contrast exists between highly skilled workers, who are increasingly in demand in view of demographic changes, and low-skilled workers, who are frequently employed in repetitive jobs vulnerable to automation as well as in the service sector at low wages and who have very few options for career advancement. The phenomenon has also been described as the emergence of a “precariat” (Standing 2011) or “service proletariat”

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(Blossfeld and Mayer 1991) that has fewer social contacts and participates less in democratic processes and organisations. The recession and rising inflation resulting from the COVID-19 pandemic and the Russian war in Ukraine have deepened this economic divide even further. Finally, on the sociocultural level, there is an antagonism between the lower class and the old middle class on the one hand and the academic middle class and the upper class on the other, who have different values and lifestyles and promote them in increasingly confrontational manner (Reckwitz 2017). This tends to result in a “clash of cosmopolitan and nationalist morals with mutual tendencies of exclusion” (Merkel et al. 2020, p. 391). Overall, the socioeconomic and sociocultural differentiation of German society has not just led to aggravated distribution and recognition conflicts; it also manifests itself in a diminished trust in the established institutions of representative democracy, which is particularly pronounced in the “lower third” of society (Kneip et al. 2020). Hence, there is a need for new policy approaches that include both additional welfare benefits and novel offers for social integration. At the same time, the political parties and interest associations have to counteract the dynamics of exclusion and promote social cohesion. 4. Media transformation: From the “campfire of society” to fragmented public spheres In modern democracies, the media is of essential significance for the legitimacy and performance of the political system, since it creates a public space accessible to all citizens (Chapter 8). Media outlets are the “campfire of society” that different individuals and groups can gather around in order to receive politically relevant information, exchange opinions, take positions and discuss the resolution of political problems. However, the media does not only form a communication platform but also offers information and opinions, which contribute substantially to citizens’ political assessments. The media also scrutinises political institutions and actors through its public impact (“fourth estate”, Chapter 8). In order to fulfil these vital functions for democracy, media offerings must be as diverse, politically independent and high quality as possible. As international comparison shows, the establishment and maintenance of such a media system is far from self-evident (Levitsky and Ziblatt 2018). It is all the more remarkable that comparative political science has focused much less

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on the media than on the other structural dimensions of democracies (Helms 2007, pp. 109–110; Chapter 1.1). In the Bonn Republic, a dual system of private and public service media evolved. The classic media formats, like newspapers, radio and television, were very popular due to their fairly diverse and politically independent offerings. This led to high circulation and viewing rates. Soon after the licensing of private radio and television channels in the mid-1980s, the market shares of the public service broadcast outlets ARD and ZDF halved (from around 38% to 18% between 1988 and 1993). However, the German media landscape only morphed into a hybrid system with the emergence of the internet and the progress of digitalisation. In this new system, analogue and digital formats by private and public media providers are connected in multiple ways and refer to each other in order to enhance the attention and reach of their offerings. For example, the Frankfurter Allgemeine Zeitung newspaper has been available for around 20 years both in print and as an online version, with interactive communication formats, graphics and links that users can digitally share. Probably the most far-reaching change in political communication under the new media order results from the ubiquitous presence of social media. This does not just mean a fragmentation into different public spheres that are partially closed off from each other and within which dissenting opinions are increasingly less acknowledged (“echo chambers”). It also includes the fact that news and reports can be directly shared on Twitter and Facebook without going through institutionalised journalism, which functions as a gatekeeper in the “old” media world. In this way, political actors can communicate their messages more independently of traditional media. At the same time, intermediary bodies that examine whether information or statements are correct or appropriate no longer play a role. Thus, social media can also be misused to ignore the principles of fair play in political communication and to make anti-democratic positions socially acceptable. In spite of these structural shifts towards a hybrid media order, the traditional media may still occupy a pole position in public communication, provided they convince citizens of the quality of their offerings, keep pace with ongoing digitalisation and use its potential for their own purposes. The public service broadcasters continue to play a key role for the acceptance of the political system. They are indispensable for the democratic quality of political will formation and decision-making because they strive to provide comprehensive programming for all societal groups,

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which guarantees factually grounded and politically independent information provision and thus facilitates independent opinion formation. It is no coincidence that citizens’ trust in the public service media is generally high and even rose further during the COVID-19 pandemic (Jakobs et al. 2021). However, the scandals in some public broadcasting corporations that became widely known in 2022 not only increased the distrust of the public broadcasting system but also triggered another debate on reforms aimed at reducing costs and increasing quality. Besides this, a growing minority of the population regards the traditional media with deep scepticism. This mainly includes people with right-wing populist attitudes, who feel inadequately represented by established politics and see public service media, which they vilify as “state broadcasters”, only as the long arm of the “system” (Baum and Haberl 2020). Against this background, representatives of public service media need enhanced sensitivity and should engage in regular reforms in order to maintain the broadest possible acceptance in society. Finally, with respect to the different levels of the political system, the European Union has experienced the most severe challenges regarding the creation of a public space. This concerns both the reach of specific EU channels and the consideration of EU-related issues and developments in the national media. Thus, the Europeanisation of the German media system remains a central task with regard to entrenching the European dimension more effectively in the public sphere. 5. Political parties and interest associations: The diminishing performance of the large organisations In a pluralist society, political parties and associations play a central role as intermediary organisations to articulate, aggregate and assert the interests of the citizens in the policy process (Chapters 6 and 7). Party members are elected to parliaments and governments and can directly shape public policies while associations represent distinct social and professional groups and thus focus on the intermediation of sector-specific interests. Both operate within a dynamic network of relationships characterised by constant competition and cooperation. Political parties compete with each other for electoral votes and must also work together to form political majorities and deliver on their manifestos in the best possible way. Associations seek to organise and represent as many people as possible in their

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respective fields and to hold their own against competing organisations. In order to assert the interests of their members, they must exert political influence on parliament and government as well as negotiate with other associations that represent opposing interests. In many fields, associations can contribute to public welfare and set sector-wide rules—and they can do so independently of governmental influence. Parties and associations equally rely on the active participation of their members and the broader support of their social environment. Consequently, they have to respond sensitively and quickly to structural changes in their specific sector and in society as a whole. The decreasing performance of the German political system (Thesis 1) is therefore essentially linked to structural changes in the major parties and associations. In the old West Germany, both pillars of interest representation were highly organised and concentrated. The party system was characterised by the moderate competition between two catch-all parties—the Christian Democratic Union/Christian Social Union (CDU/CSU) and the Social Democratic Party (SPD), which had a large membership, were very popular with voters and alternated in forming coalition governments with the Free Democratic Party (FDP). In the system of associations, both the employers’ and business organisations and the trade unions unified under the umbrella of the German Trade Union Confederation (DGB) had large membership numbers and were able to achieve a high degree of compliance in collective bargaining. In addition, the two Christian churches and further interest groups contributed significantly to the political integration in the Bonn Republic. Due to the structural changes in the German economy and society since the 1970s, these intermediary organisations have had to cope with erosion tendencies that accelerated after reunification. The catchall parties have been struggling with the fact that their membership has been getting smaller every year for the past three decades and that it has become more difficult for them to appeal to broader parts of the electorate. At the same time, they are still present everywhere in the political system, and no federal and state government can be formed without them. In response to this situation, the Greens, the Party of Democratic Socialism (PDS), later to become the Left party (Die Linke), and the Alternative for Germany (AfD) have successively entered the political scene. These new competitors testify to the flexibility and integrative capacity of the parliamentary democracy but also make the formation and operation of majority governments much more difficult. At the same time,

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the German party system has also become more diversified in a territorial sense, which is most apparent in the multitude of different government coalitions on the state level (Chapter 13.3). The traditional interest associations have seen huge outflows and are attracting fewer and fewer new members. They have also been confronted with decreasing loyalty from their remaining members. Moreover, they have had to cope not only with new competing organisations with smaller and more homogenous memberships but also with alternative forms of interest representation, where professional lobbying agencies with campaign-like communication strategies play an increasingly important role (Chapter 7.2). In view of this intensified competition, the associations have tried to hold their own by positioning themselves as service-oriented providers for their members. Furthermore, the hybrid media system offers them new opportunities in internal and external communication, though this is also a source of many risks. In short, the era when catch-all parties and “big” associations were highly inclusive and effective intermediators of political interests belongs firmly to the past. Since individual interests have become more diversified in many sectors, the system of associations has also become more pluralist and heterogenous. These structural changes in the party and association systems have contributed to the diminishing performance of German democracy. Nevertheless, the fundamental mechanisms of political will formation and decision-making have not been compromised, since no functional equivalents to political parties and associations have emerged. Still, the established parties and associations are called upon to engage in the contestation with their new and dynamic competitors, learning from them and building strategic alliances in order to avoid losing further capacities for inclusion and action. 6. Parliamentary democracy between executive dominance and limited self-reform capacity The German Bundestag is the core of parliamentary democracy (Chapter 9). As the only directly elected federal body, it represents the citizens and forms the most important legislative institution. By electing the chancellor and jointly electing the federal president and the judges of the Federal Constitutional Court, the Bundestag also provides the executive and the judiciary with democratic legitimation. At the same time, it

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holds the federal government accountable, since it may replace the incumbent chancellor with someone else at any time by a constructive vote of no confidence. Despite its normatively key position in parliamentary democracy, the Bundestag has had a difficult status within the German political system. Following the functional logic of parliamentarism, the Bundestag majority forms a joint political unit with the federal government. As a result, scrutiny of the executive is essentially left to the parliamentary opposition. The government also sets the agenda in the legislative process. Most bills are drafted in the federal ministries, which is where the interest associations “knock on the door” first in order to exert their influence most effectively (Chapter 10.2). Furthermore, the Federal Constitutional Court acts as a kind of “additional legislator” via its authoritative interpretations of fundamental rights (Böckenförde 1990, p. 2; Chapter 12.2). Last but not least, the Bundestag is part of a federal system, which means that it faces a state chamber with almost equal legislative powers in the form of the Bundesrat (Chapter 11.2). If this structural configuration is already difficult, the Bundestag has suffered an even greater loss of strength over time. It has lost some of its legislative powers through the Europeanisation of national competences (Chapter 3.3). The privatisation policies of the 1980s and 1990s had similar consequences, whereby the formerly large state-owned companies (post office, telecoms and railways) were transformed into private-law enterprises. As a consequence, they are no longer under direct oversight of the ministerial administration but of the Federal Network Agency (Bundesnetzagentur, FNA), which is subordinate to the Ministry of Economic Affairs. Likewise, new regulatory agencies have been established in other sectors, which are under the authority of the government and thus removed from direct control by parliament. The Bundestag may conduct political investigations in retrospect through a committee of inquiry, as it did in the case of the Wirecard scandal, which also involved the Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht, BaFin). Nevertheless, such processes of scrutiny are rare, take a long time, sometimes compete with parallel court proceedings and thus have limited impact. Furthermore, the federal government has occasionally underscored its dominant position over the parliament by establishing expert commissions, whose recommendations have determined the subsequent policy process, as was the case with the Hartz reforms under Chancellor Gerhard Schröder. Executive predominance

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became also manifest in the management of recent crises. During the euro rescue, the refugee crisis and the COVID-19 pandemic, the Bundestag was not the actual centre of policy-making. Instead, it formally confirmed and thus legitimised many political decisions that were negotiated and taken elsewhere. In addition to external challenges, the Bundestag has from time to time struggled with internal issues that affect its public image. A long-standing criticism concerns its insufficient social representativeness (Chapter 9.3). Compared to the population average, the Bundestag does not have enough women, people with a migration background and non-universitygraduates. At the same time, too many MPs spend a non-negligible proportion of their time doing side jobs. These normative shortcomings detract from the reputation of parliament, while there is no evidence that they enhance its functional performance. Moreover, parliamentary debates repeatedly show representation gaps as compared to the range of opinions in society as a whole, as became apparent, for instance, in the process of the euro rescue policy. It is also noteworthy that the Bundestag has exhibited limited capacity to reform itself. For instance, its parliamentary groups were not able to agree on a change in the electoral system that would effectively reduce the Bundestag size (Chapter 5.1). At the beginning of 2023, it is still unclear whether the new government coalition of SPD, Greens and FDP will succeed in implementing such an electoral reform after almost 15 years of failed negotiations and insufficient legal adjustments. Furthermore, the public scandal around commission payments for masks during the COVID-19 pandemic was necessary to get the CDU/CSU group to agree on stricter transparency rules regarding the additional income of MPs (Chapter 9.2). Since the Bundestag is the seat of popular sovereignty, its members alone can decide on most of the rules that apply to them. However, this also means that they have a special responsibility to set or change these rules for the sake of the common good. There have also been a few adaptations of the Bundestag’s internal structures and procedures, mostly put forward by the opposition to counteract the decreasing significance of parliament. A relevant example is the government question time, in which the chancellor has had to answer MP questions on a regular basis since 2018. Occasionally, support for such reforms has also come from outside the Bundestag. In particular, the Federal Constitutional Court has strengthened the role of parliament in EU-related policy-making in its more recent rulings (Chapter 12.3).

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More generally, it is the joint task of all constitutional institutions and intermediary organisations to ensure that the Bundestag remains rooted in the public awareness as the most important site of democracy. The interaction of parliament, parliamentary groups and political parties plays a key role in these efforts. 7. The federal system: between cooperation routines and temporary overload The political-administrative competences in the German federal system are distributed between the federal, state and local levels (Chapters 4, 13, and 14). All three levels have representative bodies that are democratically elected and make autonomous political decisions. This vertical distribution of power substantially limits the federal governments’ room for manoeuvre and thus forms the central element of consensus democracy in the political system. The hallmark of German federalism is its division of tasks according to state functions. The most important laws are made at the federal level, while the states are responsible for the implementation of federal legislation, which is largely carried out by municipal administrations. This interlocked federal structure requires intensive cooperation between and within the levels in order to achieve the constitutional goal of “equivalent living conditions” (Art. 72, para. 2 GG). The most important institutions where these consensus-oriented negotiations happen are the Bundesrat (Chapter 11), the Mediation Committee (Chapter 11.1) and the Conference of State Prime Ministers as well as the ministerial conferences (Chapter 4.3). In addition, there are numerous further boards and committees where the conflicts of interest between the diverse territorial authorities and government parties are “broken up into a manageable size” and thus “a considerable degree of collective governance capacity is achieved” (Scharpf 1999, pp. 5–6). Through the routines of intergovernmental cooperation, the federal order substantially contributes to social integration, mitigates territorial disparities and thus promotes democratic stability. Day-to-day governance in cooperative federalism usually attracts little public attention. This is due in no small measure to the complex and interlocked decision-making structures, which render a clear allocation of responsibilities nearly impossible. Therefore, German federalism is

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rarely praised for its high degree of reliability and consistent performance. However, if the intergovernmental cooperation works less well, severe criticisms are made. This happened particularly from the late 1990s onwards, when the territorial disparities exacerbated by reunification and structural changes in the economy led to demands for a “disentanglement” of the federal order. Federalism Reform I of 2006 took a few steps in this direction. However, it soon became evident that the financially weak states were unable to make use of their new legislative autonomy in science and education policies due to fiscal constraints. As a result, new patterns of interlocked policy-making emerged, whereby the federal government “bought its way back” into science and education policies (Chapter 4.2). Thus, the executive dominance and intransparency of federal governance have further increased. At the same time, due to the diverse government coalitions at the state level (Chapter 13.3), it is getting more difficult to agree on nationwide solutions, since almost all parties in the Bundestag now have a seat at the federal negotiation table. Nevertheless, major attempts to block federal decision-making have not taken place so far (Schmedes 2019). During the COVID-19 pandemic, German federalism came under sharp criticism again when the chancellor and the state prime ministers repeatedly participated in long all-night sessions to decide on nationwide measures to reduce infection rates, only to have their agreements undermined shortly afterwards by individual states. Thus, the format of the Prime Ministers’ Conference, the final instance of federal coordination for “normal” policy issues, was obviously not suited to finding effective solutions in acute crises. However, cooperative federalism proved its ability to learn and adapt even in this context, since the state governments could agree to nationwide regulations in order to facilitate a faster and more effective response to further events in the pandemic. The COVID-19 pandemic will by no means be the last occasion on which German federalism will have to prove itself. After the acute economic crisis following the Russian war in Ukraine has ended, the further development of fiscal federalism will definitely re-emerge on the political agenda (Chapter 4.2). Since the debt brake enshrined in the Basic Law in 2009 puts additional limits on the states’ budgets, Germany’s investment backlog could become even worse. This will not only affect necessary works to repair and upgrade ageing transport routes and renovate public buildings but also impede the creation of new infrastructure in order to advance the transformation towards a green economy and a

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digital society. It will not be possible to meet these demands across the nation without allocating additional resources to the municipalities that implement the bulk of related policies (Chapter 14.1). The budgetary situation has been worsened even further by the follow-up costs of the COVID-19 pandemic and the most recent “relief packages” of the Scholz government to combat the economic crisis. Therefore, massive distribution conflicts between the federal and state governments will probably emerge in the medium term, which will put the cooperative structures of federal decision-making under severe pressure again. 8. The EU multi-level system: Asserting national interests and securing democratic legitimation A “united Europe” is part of the raison d’état of the Federal Republic of Germany (Art. 23, para. 1 GG; Chapter 2.2). Its economic performance and political stability have been closely linked with European integration from the very beginning. Therefore, Germany’s European policy followed a course between pro-integrationist principles and a pragmatic approach led by national interests (Müller-Brandeck-Bocquet 2021). The various crises in which the EU did not perform well during the last 15 years have given Eurosceptic voices a larger platform in Germany as well, but a fundamental Anti-Europeanism has so far not found widespread approval in the German party system, apart from the Alternative for Germany (AfD). The extensive transfer of legislative powers to the EU has created a supranational multi-level system that goes from the municipalities to the states and Berlin all the way to Brussels. In general, the Europeanisation of policy-making has extended the scope of action for German political institutions and actors. At the same time, additional challenges in terms of democratic legitimation have emerged, since political decisions on the EU level should be taken on behalf of the citizens in a transparent and comprehensible way. Domestic institutions and actors play a key role in this intermediation of interests to ensure the performance and legitimacy of the multi-level democracy. They need to become “fit for Europe” to co-determine EU policies according to the national preferences and then implement them within their domestic context. As the individual chapters of our book have shown, the impact of Europeanisation on domestic political institutions and actors varies

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considerably. The federal government has benefited most from the supranationalisation of legislative powers, because it is directly involved in EU decision-making through the European Council and the Council of Ministers. However, it is also politically accountable when the EU policies it supports lead to performance deficits felt immediately by the citizens, as was the case with the belated purchase of COVID-19 vaccines by the European Commission. It is therefore all the more important that the federal government articulates clear and coordinated positions about its EU agenda in order to represent German interests effectively. Its domestic coordination of EU policies facilitates a balanced consideration of interests of the coalition parties, federal ministries and state governments. At the same time, this coordination procedure has been repeatedly criticised for its poor efficiency (Chapter 10.3). Unlike the federal government, the Bundestag has attempted to counteract the loss of powers through Europeanisation by systematic scrutiny of the numerous EU draft bills. Although it has intensified its efforts, its influence on EU policies remains limited (Chapter 9.3). The German states have a differentiated range of opportunities for participating in EU policy-making and articulating their interests. Nevertheless, they are also among the “losers” of European integration, with the state governments represented in the Bundesrat experiencing less severe problems than the state parliaments (Chapters 11.3 and 13.4). The Federal Constitutional Court, whose significance as the guardian of the democratic order has tended to diminish due to the constitutionalisation of the EU, is in a particularly difficult position. In view of the emerging European financial union, its influence threatens to recede further (Chapter 12.3). As far as the intermediary organisations are concerned, most German interest associations have adapted relatively well to Europeanisation by opening up their organisational structures towards the EU level and also attempting to exert substantial influence on the transnational associations they belong to (Chapter 7.3). In contrast, German political parties have still not succeeded in expanding their central role in the domestic policy process to the EU level (Chapter 6.3). Overall, German political institutions and actors must constantly monitor and react to the complex dynamics of Europeanisation in order to maintain their position and assert their interests in the multi-level system. In so doing, they can make a decisive contribution to aiding

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European governance in creating inclusive and effective policies and thus preventing Eurosceptic positions from finding a politically relevant platform. 9. Reforming democracy: Institutional innovations and political involvement One of the great strengths of democracy is its openness to change. This applies not only to the substance of government policies, which can be periodically revised by the electorate. Institutional structures and procedures may also be subject to reform in order to make democratic will formation and decision-making more inclusive and effective. On the input side, the main aim of institutional reforms is to strengthen political participation and to improve the quality of representation. In this context, various options are being discussed, from lowering the voting age and more sophisticated voting methods (panachage and cumulative voting) to quota regulations to “innovative” participation formats beyond periodic elections (Elstub and Escobar 2019). Such reform demands are not only articulated by political parties and interest associations but also by NGOs like Mehr Demokratie e. V . (More Democracy), which was founded specifically to enhance citizens’ rights to direct democratic participation. On the output side, there are also various reform proposals aiming for more efficiency and effectiveness of political and administrative governance. Efforts at institutional reform have varied across the different levels of the political system. On the federal level, there have been cycles of recurring reform proposals, such as the election of Bundesrat members, the popular election of the federal president, a term limit for the chancellor or the introduction of elements of direct democracy (Chapters 10.5 and 11.4). These demands have not had any political impact. One explanation for this reform inertia is that changes in individual institutions would reshape the relatively complex system of government on the federal level and could thereby produce unwanted side effects. This is particularly true for the introduction of popular legislation, which would create substantial compatibility problems with the representative institutions of government (Grotz 2013, pp. 324–326). The cost-benefit analyses of these and most other reform proposals at the federal level do not lead to positive assessments. Exceptions include the reform of the electoral system, which is definitely needed to prevent the further enlargement of the Bundestag.

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However, this is still a very controversial issue between the parliamentary parties (Chapter 5.4). Unlike on the federal level, the state and local levels have experienced a real boom in institutional reforms (Chapters 13.2 and 14.2). Since the 1990s, various forms of direct democratic participation have been established everywhere, the voting age has been lowered in many cases and voting methods in state and municipal elections have been diversified. In addition, direct elections of mayors were established, even in those states where they never existed before. Furthermore, some municipalities have introduced participatory budgeting, where citizens have a say on how some discretionary funds are spent (Roth 2020). Besides these measures, the states and local governments have also modernised their administrative structures and procedures. The outcome of these various institutional reforms has been mixed. On the one hand, the new procedures for popular legislation have been extensively used in some states, and the expanded opportunities for participation on the local level have generally met with a positive response. On the other hand, the reforms have not led to a significant increase in the attractiveness of local democracy and they have not succeeded in reversing the trends of declining voter turnout and receding interest in political engagement. Occasionally, democratic innovations have also exacerbated social inequalities. One example is a citizen referendum held in Hamburg in 2010, where the voters rejected a school reform passed by a broad party consensus in the state parliament. Notably, this school reform would mainly have benefited people from less privileged social backgrounds, who were much less likely to participate in the referendum than those with a higher socioeconomic status (Töller et al. 2011). In short, institutional reforms may improve the inclusiveness and efficiency of democratic governance to a certain extent under specific circumstances. In any event, it is not sufficient to reflect on the theoretical pros and cons of democratic innovations; we have to also consider their potential impact, which often means that critical “risks and side effects” come to the fore. Furthermore, changes in institutional provisions alone can hardly remedy the functional deficits of democratic governance. Political actors must also be willing to bring democratic innovations to life and demonstrate their active engagement. 10. Democracy in times of crises: consent and commitment as an anchor of stability

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Whether a democracy is sufficiently resilient and whether it has buffers and reserves to ensure the workings and support of its constituent principles, institutions and procedures becomes particularly apparent in times of crises. Resilience in this sense cannot be developed when the crisis is already under way; on the contrary, it will prove itself in a crisis. This is true both for latent crises that build up gradually when performance deficits are often not yet visible, as well as for the aftermath of a crisis, when there are usually fewer public resources available to resolve social conflicts. The overwhelming majority of German citizens approve of democracy as a political regime (Merkel et al. 2020, p. 392). There is also plenty of evidence that the Federal Republic of Germany has a political system that keeps working even under conditions of stress, including reunification, the euro crisis, the refugee crisis and the COVID-19 pandemic. A sophisticated system of horizontal and vertical divisions of power, with diverse arenas, where parties, interest associations, the media and civil society organisations cooperate and act as a check on each other, has contributed to these achievements. It is therefore not surprising that Germany is among the top countries in international rankings of democratic quality. On the other hand, social divisions have deepened and criticisms of political elites, representative institutions and democracy as a whole have increased. This dissatisfaction is not prevalent in all social groups to the same extent. But even if social vulnerability and powerlessness towards international businesses and globalised markets have grown, the discontent with democracy cannot be derived one-dimensionally from these economic and social conditions. Overall, it becomes clear that the political system is not only dependent on inclusive and efficient institutions but also on the constant support of its citizens. Their consent and commitment provide an anchor of stability in times of crises in order to ensure the persistence and advancement of democracy.

15.3

What Is Needed to Strengthen Democratic Resilience?

In this final chapter of our book, we have focused primarily on structures and trends in the German political system that affect its democratic performance. These include the division of responsibilities within and

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between the levels, which lacks transparency and efficiency, the evergrowing strength of the executive, the increasing significance of experts and advisory boards in the policy process, the transformation of political communication in the hybrid media system and, last but not least, the diminishing capacity of parties and associations to intermediate between the government and the citizens. Political action, which aims to create binding rules for everyone, is encountering major challenges in a more individualised society, through growing scepticism, democratic disenchantment and the rise of populist movements. At the same time, the institutional and political forces that must engage with these challenges have been weakened. Hence, there is a definite need to increase the democratic resilience of individual actors, organisations and institutions. First, the vast majority of society must have a positive attitude towards the political system. This requires a sound basic knowledge of its structures and its operation, since there is a significant connection between the understanding of a democratic system and its acceptance. For this purpose, educational institutions, the media, associations and political parties play an important role. Particularly since the intermediary organisations’ capacity to integrate citizens have declined, more thought must be given to boosting political education. Moreover, the active participation of citizens is essential to prevent the multiple economic, societal and political crises from turning into a crisis of democracy. This specifically includes the willingness to acknowledge democracy’s inherent trade-offs between the most inclusive and the most efficient forms of policy-making, to take a clear position against the enemies of liberal democracy and to remain open for democratic reform. Second, the institutions responsible for providing public services must fulfil the demands that are placed on them, with the areas of economic and social policy being of particular importance. In this context, policymakers might also reflect on the institutionalisation of forward-looking approaches in order to identify upcoming challenges and needs at an early stage and to respond to them appropriately. Third, there is a need for a broad-based, pro-democracy media system and its educated use by the citizens. Public service media organisations, which are attractive due to their range of offerings, which cater to all societal positions, may also have a positive influence on private media outlets and thereby solidify democracy in the hybrid media order. They should form the centre of this system.

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These three pillars to enhance democratic resilience may be further extended and specified. In essence, a “successful democracy” requires the interplay of value-based, self-critical and forward-looking political elites, organisations and institutions on the one hand and a citizenry committed to democratic values and practices on the other. This might form the basis on which Germany can make a significant contribution to democratic stability and innovation in Europe during times of uncertainty and crises and help it to tackle the great challenges of humanity in the context of renewed multilateralism.

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