The Karlsruhe hearing had dragged on until late in the evening. Those who endured long enough learned a lot about the paradoxical relationship between political foundations and “their” parties, which has a lot in common with a modern couple relationship: you feel connected in spirit, yet both sides insist on independence. However, on October 25, the Federal Constitutional Court neglected one question in a downright irritating manner: According to what criteria – if any – can a political foundation be cut off from state funding if there are doubts as to its loyalty to the constitution? That was the elephant in the meeting room, because after all it was the AfD that insisted on equal treatment of its kindred spirit Desiderius Erasmus Foundation (DES) with its lawsuit in Karlsruhe. Why was the Second Senate so ostentatiously disinterested?
Well, now you know. With its judgment, the court quickly cut the Gordian knot of foundation funding in two. The sensitive issue of loyalty to the constitution has been adjourned. Or more precisely, this part of the procedure was split off. Because it was only in the 2022 budget that the wording was found for the first time that global grants to political foundations “may not be granted if there are reasonable doubts about loyalty to the constitution”. That was a clear “No” in the direction of DES, which the AfD brought into the Karlsruhe proceedings at the last minute, too quickly for the Bundestag and the government to react. So Karlsruhe will decide about it later – at some point and certainly only after the Bundestag has passed a law.
The ball is now in lawmakers’ court, the court says
Because that was the real message on this Ash Wednesday: whether the DES is loyal to the constitution or not, the Bundestag must first enact a foundation law. “Regardless of that, the ball is now in the legislature’s court,” summarized Vice President Doris König. It is not enough to distribute the windfall discreetly in the form of a budget item, as has been the case up to now. The parties have to face up to the distribution of funds in parliamentary debates – which they obviously find unpleasant – that’s a question of transparency: this is the only way to ensure that the public has the opportunity “to develop and represent their views,” writes the court.
The verdict is a turning point in the promotion of party-affiliated foundations that goes back to the 1960s. At that time the landscape was still clear. The SPD had relied on the Friedrich Ebert Foundation since 1925, and in 1958 the FDP established the Friedrich Naumann Foundation. In 1964 and 1967 the Konrad Adenauer and Hanns Seidel Foundations, the counterparts of the CDU and CSU, followed. They should become the collection point for grants for political education, because the parties themselves were not allowed to accept such funds.
With the landmark judgment in Karlsruhe in 1986, the flow of money was directed in an orderly manner. Thereafter, funding was constitutionally permitted, provided the foundations maintained a certain distance from the parties. The court stuck to this line in the new judgment, although it emphasized the “special close relationship” more clearly than before. Common basic values connect, and personal ties as well.
In 1998 the five foundations – the Heinrich Böll Foundation, which was close to the Greens, had been added – then issued a “joint declaration” on the distribution of the funds, a few years later the Rosa Luxemburg Foundation joined from the left. In other words, the foundations divided the cake among themselves, and the parties looked on benevolently. Unsurprisingly, the money curve has been pointing steeply up. Between 1999 and 2019, the grants increased by 110 percent, the taxpayers’ association had calculated.
The Karlsruhe judgment is now in a new direction, towards more transparency. Formally, it only applies to the so-called global grants to the political foundations, in 2019 they were at least 130 out of a total of 660 million euros a year. The AfD application only referred to that. But the logic that foundation funding is an essential matter and therefore one that has to be regulated by law can certainly be extended to those pots of scattered foundation funding that are relevant to party competition. On the promotion of gifted people, for example, which cost another 80 million in 2016.
The verdict is a victory for the AfD. Formally, it is only related to the year 2019, all other AfD applications were inadmissible – but of course the legal proviso applies to all future. “This is a resounding slap in the face for the Bundestag and the federal government,” said DES Chairwoman Erika Steinbach after the verdict was announced. And even if the “resounding slap in the face” is already very worn out as a phrase: Steinbach is absolutely right. Because experts have been calling for a legal basis for decades, and even in politics, voices have recently been raised – in vain.
However, the success of the AfD is not likely to pay off in money for the time being. The court limited itself to finding that the AfD’s freedom of parties had been violated and expressly refrained from issuing an “execution order”. It is up to the Bundestag and the Federal Government to “end an established unconstitutional situation”. So no additional payment notice from Karlsruhe – and the Berlin constitutional bodies should do the same: in 2019, the AfD was still in its first legislative period in the Bundestag. According to the previous rules, however, foundation funds are only available after a return.
The AfD-affiliated foundation apparently appears with the claim of a new right-wing cadre factory
The Second Senate – Peter Müller was responsible as rapporteur – has now expressly confirmed this practice. It is constitutionally “unobjectionable” to limit state funding to those party-affiliated foundations that represent a “permanent, important political current”. The election results are decisive here; short-lived parties need not be considered. Which of course doesn’t help with a view to AfD and DES. This “undercurrent” seems to have become established.
That is almost the only administrative assistance that Karlsruhe provides to the legislature. The court says only this much about dealing with the DES: encroachments on the equal opportunities of the political parties can be justified in order to protect equivalent constitutional goods. “In particular, the protection of the free democratic basic order comes into consideration as an equivalent constitutional good.”
This probably leaves room for a rule to keep the DES out of the financial pots; after all, it is closely related to a party monitored by the Office for the Protection of the Constitution and appears to be claiming to establish itself as a new-right cadre hotbed. But it won’t be easy, DES is already acting much more cautiously than it did a few years ago. “We work for democracy,” Steinbach asserted in the courtroom. In addition, haste is required for the Bundestag – there is not much time to think. From now on, without a law, no more global grants will flow to the parties. The new set of rules will probably have to be completed before the end of this year.