Electoral law reform: how the Bundestag should become smaller

The electoral law is to be reformed, but a consensus has been struggled for years. Now things are moving. What’s the problem? And how does it continue?

The current Bundestag has 736 MPs – 598 are planned. The traffic light coalition wants to set this number by law as the upper limit for future legislative periods and is now making a new attempt after a few failed attempts at reform by the grand coalition.

On Tuesday, the SPD and the Greens decided on the cornerstones of an electoral reform. The traffic light partner FDP has also dealt with it benevolently. The electoral law commission of the Bundestag is discussing this today. An interim report will be presented by the end of August. What’s the problem? What are the advantages and pitfalls of the electoral reform in Germany? An overview.

What is electoral reform actually about?

Due to the German personalized proportional representation system by means of a first vote for constituency candidates and the decisive second vote for the party in the Bundestag, an imbalance is increasingly emerging: parties can often win more seats in parliament through direct mandates than their second votes result. This is very clear in Bavaria: there, with one exception, every constituency (45 out of 46) was won by a CSU politician. According to their voting proportional representation, the CSU should not have as many seats in the Bundestag.

Compensatory mandates were invented to counterbalance these surplus direct mandates, which ensure that other parties also get more seats, so that the relationship between the parties that was elected via the second votes is right again. The political scientist Thorsten Faas describes a “conflict of goals” here: On the one hand, with this type of voting, it is important that the direct candidates are close to the citizens and that they are represented in parliament. On the other hand, the ratio of the second votes should not be watered down.

Direct mandates versus second vote result

In the past, this electoral system has led to ever-growing parliaments – and thus to rising costs. Such growing XXL parliaments are also criticized for becoming more inefficient. The parties have been working for many years to reverse this trend with new electoral law models. The traffic light coalition currently in power has also decided to do the same – and to this end decided on a commission “to reform the electoral law and modernize parliamentary work” in the Bundestag.

The body should “deal with proposals based on the principles of personalized proportional representation that will effectively reduce the size of the Bundestag in the direction of the statutory standard size and prevent the Bundestag from growing in the long term,” wrote the three parliamentary groups in their associated motion. This was supported not only by the majority of the applicants but also by the left-wing faction in the Bundestag.

By the end of August this year, the Commission is to present an interim report with recommendations for future limitations on the number of MPs. Key points were already presented in May. The body consists of 13 MPs and 13 experts. The SPD parliamentary group has four members, the CDU/CSU parliamentary group has three members, the Green and FDP parliamentary groups have two each, and the AfD and Die Linke parliamentary groups have one member each – so the traffic light groups also have a political majority there.

What are the factions of the traffic light government proposing?

Something like squaring the circle is actually being attempted there: All 299 constituencies should continue to be represented in the Bundestag in the most recent key issues paper, but at the same time the standard size of 598 Bundestag seats should not be exceeded. According to the proposal from the traffic light groups, the overhang mandates and thus also the compensation mandates, which had previously been created as a counterweight to surplus direct mandates, should be abolished. Accordingly, not every directly elected member of parliament could count on a direct mandate – those with the worst results in their parties would not be able to move in. After the 2021 federal election, that would have been the case in 34 cases: twelve times for the CDU, eleven times for the CSU, ten times for the SPD and once for the AfD.

So that every constituency would still be represented, the MPs have come up with a “substitute vote” in their proposal as a solution in addition to the first vote for the ballot paper, which is then decisive for party representation – a kind of say for every voter as to who should move in from their constituency if the direct candidate misses out on entering the Bundestag because of the new model: If the mandate of the “overhang candidate” were to be dropped, the first and substitute votes would be added together. Whoever then gets the most votes gets the mandate. So it may be that the first vote winner is also the overall winner.

What is the opposition’s position?

Representatives of the largest opposition faction, the CDU/CSU, have shown their irritation that the traffic light factions have already gone public with their proposal without consulting the opposition. They reject the abolition of direct mandates. “The fact that constituency mandates are won and then have to be reassigned or not” is not compatible with their view of the legitimacy of constituency mandates, said Union parliamentary group leader Friedrich Merz this week on the sidelines of the Bundestag.

Merz spoke out in favor of the so-called moat voting rights model. Without any offsetting, 299 mandates would be awarded directly in the constituencies and the remaining 299 according to the share of second votes. However, the strength of the parties in the Bundestag could then deviate greatly from their share of second votes. The traffic light proposal, on the other hand, borders “on electoral fraud with an announcement,” added Alexander Dobrindt, the chairman of the CSU state group and has already threatened to sue for the constitution.

The Left Party also rejects the present traffic light proposal. Thanks to a special arrangement for three direct mandates, she was able to get back into the Bundestag as a parliamentary group, even though she ended up just under the five percent hurdle in the election result. Left faction leader Amira Mohamed Ali, like the Union, expresses “constitutional concerns”. The coalition’s proposal would lead to a “de facto devaluation of votes”. Mohamed Ali also criticized the fact that the opposition factions had not been involved in the reform plans.

The AfD, in turn, agrees in principle with the traffic light model – the proposal would largely correspond to a draft law by the AfD on electoral reform from autumn 2020, said Commissioner and AfD MP Albrecht Glaser tagesschau.de.

Why are direct mandates the point of contention?

Whoever wins a constituency directly, especially as a member of comparatively smaller parties in parliament, enjoys high prestige in politics. After all, the politician has usually gained more recognition from the voters through his or her personality and political commitment than his or her own party has managed to do. The direct mandate is also linked to the image of being close to the citizen: in principle, all members of the Bundestag are treated equally. But according to the Bundestag’s definition, “the directly elected representative of the people is more important than the list representative for the interests of his or her constituency.”

However, direct mandates from really prominent politicians such as Gregor Gysi from the Left Party in Berlin-Treptow are rather the exception. According to a representative survey, only 10 to 15 percent of those who vote know their constituency candidates – “the song of praise that is often heard at the moment from the constituency winners is a bit distorted,” says political scientist Faas.

Another question would be whether the traffic light model would change the motivation of constituency candidates. This is an exciting point, says Faas, “the reform could actually demotivate CSU constituency candidates in Bavaria, for example, but of course also motivate the constituency candidates from the Greens and SPD – who could suddenly win the constituency there”.

Would a lawsuit before the Constitutional Court stand a chance?

It is not possible to say exactly at the present time, since only key points are available so far – but no comprehensive reform draft. While the Union faction already considers this to be “incompatible with the Basic Law,” the members of the traffic light factions are optimistic: The Greens faction leader believes it is a “fair, constitutional and balanced reform of the electoral law” that will effectively reduce the size of the Bundestag.

The domestic policy spokesman for the FDP parliamentary group, Konstantin Kuhle, also contradicted legal objections: “It should very well correspond to the spirit of the Basic Law that a party gets exactly as many seats as the election result corresponds to”. Ultimately, according to political scientist Faas, it is a question of prioritization, whether personalization or proportional representation is given more weight.

And how does it continue?

The Bundestag commission for electoral law reform, which was set up with the votes of the traffic light coalition and the Left Party, is to present an interim report with recommendations for future limitations on the number of MPs in August, and its final report by the middle of next year.

However, the SPD parliamentary group is aiming for a legislative process from September to be completed by the end of this year. Opposition leader Merz was also open to the accelerated schedule by the end of the year. There is a compromise in the room, but their two models are difficult to reconcile. SPD parliamentary group leader Matthias Miersch emphasized that the traffic light proposal was “an open invitation”. It cannot be ruled out “that we will end up with a model where several people still say that we will go along with it”. However, Miersch also referred to blockages in recent years: “We now have to take steps forward.”

With the exception of a decision on the voting age, the majority of the traffic light parliamentary groups are sufficient for the electoral law reform. However, a broader parliamentary majority would presumably ensure the sustainability and permanence of the reform.