The traffic light coalition risks a legal defeat against the AfD, warns the Berlin constitutional lawyer Christoph Möllers. Her current actions against the right-wing populists are careless, “that can very quickly fail in court”.
It’s about a lot of money: The traffic light coalition is currently working on overriding the party-affiliated AfD foundation when it comes to distributing state money. While all other parties represented in the Bundestag have again secured money for foundations close to them, such as the CDU-affiliated Konrad-Adenauer-Foundation or the SPD-affiliated Friedrich-Ebert-Foundation, the AfD-affiliated Desiderius-Erasmus-Foundation, founded in 2017, is to foundation remain excluded from this system.
That’s why constitutional law expert Möllers, who has represented the federal government several times before the Federal Constitutional Court, warns: In a democratically sensitive issue, it is risky if politicians decide “freehand” against the AfD. It is tricky that the traffic light coalition does not present a transparent justification in the form of a law. The AfD could possibly sue and be right in the last instance in Karlsruhe – and then not only triumph politically, but also suddenly receive an additional payment of tens of millions of euros. Internally, domestic politicians from various parties are also talking about an “imminent scenario”. The coalition is heading towards a problem “with its eyes wide open” but has so far not done anything about it.
The background: the specifically German system of party-affiliated foundations has existed since 1967, which together receive around 500 million euros from the state budget every year. But while party financing is extremely strictly regulated in Germany, there is still no legal basis for it. Instead, it is informal, with the Bundestag making a sum available every year as part of its budget deliberations without formally committing to anything.
The only basis is a “joint declaration on state funding of political foundations” drawn up by the party-affiliated foundations of the Union, SPD, FDP and Greens, which the left-wing Rosa Luxemburg Foundation later joined. It says: If a party moves into the Bundestag for the second time, it gets a share of the money for foundations according to its size.
The state would have to present binding criteria according to which it treats foundations
As long as everyone agreed, it worked. But now the budget politicians in the traffic light coalition have provided what is known as an “explanation”. It should be in the budget of the Federal Ministry of the Interior, which will be finally discussed this Thursday, and say: The AfD gets nothing – although it actually meets the usual criteria. Constitutional lawyer Möllers criticizes this: “The moment a distribution conflict arises that is relevant to equality, a legal basis is needed.” The state should not simply make individual decisions about the AfD Foundation according to taste – but must present binding criteria and be committed to them.
Former Green MP Volker Beck has already formulated such criteria. Two years ago, he proposed a concept for a “defensive democracy law.” With such a law it can be transparently regulated that foundations have to be based on the free-democratic basic order. That would be a conceivable criterion for excluding the AfD – based on the protection of the constitution, which is known to classify the AfD as a suspected case of right-wing extremism.
“Only those who actively support the free-democratic basic order with conviction can do justice to the democratic education mandate of political education,” says Volker Beck. However, some politicians in the SPD and Union have concerns. Once one begins to regulate the hitherto unregulated area of party-affiliated foundations, other, possibly tricky, questions about financing and party independence would quickly arise.
The Desiderius Erasmus Foundation is headed by Erika Steinbach, the former CDU member of the Bundestag and long-standing chairwoman of the Association of Expellees. According to a study by the Otto-Brenner-Foundation (IG Metall) published last year, some important functionaries are active alongside her in the right-wing extremist scene.
This is how Steinbach’s deputy Klaus Peter Krause writes for right-wing periodicals like Peculiarly free and compares the current political order to a “Fourth Reich”. Karl Albrecht Schachtschneider, for example, is also on the foundation’s board of trustees.
If the Erasmus Foundation were to be able to obtain funds in the same way as the other party-affiliated foundations in the future, then after a one-off start-up funding they would allocate around 70 million euros per year in the medium term.