Judgment on political foundations: Partial success for AfD – Bundestag is on the train

It is a partial success for the AfD: The Federal Constitutional Court ruled that the exclusion of their foundation from state funding violated the right to equal opportunities. Now the Bundestag is required.

All parties represented in the Bundestag have foundations that are politically close to them: the SPD has the Friedrich Ebert Foundation and the CDU has the Konrad Adenauer Foundation. They organize political education work, run offices abroad and award scholarships for students. They get money from the federal budget for this. At the moment, that’s a total of well over 600 million euros per year.

The Desiderius Erasmus Foundation, which is close to the AfD, has not received any money so far. The AfD considers this to be unconstitutional and sued. She says that being excluded from funding puts her at a disadvantage compared to other parties.

The Federal Constitutional Court assessed this in its judgment in the same way. The vice-president of the court, Doris König, explains: The applicant – i.e. the AfD – is being violated in its right to equal opportunities in political competition under Article 21 paragraph 1 of the Basic Law because the 2019 budget law allows global grants to be granted to political foundations without which is based on a separate parliamentary law.

Things must not go on as before

Specifically, the decision related to the 2019 budget year. The AfD had made identical applications for the other budget years, but the court believed that they were submitted too late. Therefore, Karlsruhe only decided on the year 2019. However, the decision is of fundamental importance. As before, the Bundestag may no longer distribute the foundation funds.

So far, the funds for political foundations have been decided by the Bundestag during budget negotiations. The amount depends on how strongly a party is represented in the Bundestag. There is no separate funding law.

The Federal Constitutional Court considers this to be unconstitutional. The question of state funding is so important for the democratic order that it absolutely has to be regulated with a separate law, says constitutional judge König. This is the only way to ensure that all members of parliament and the public have the opportunity to discuss the planned regulations and form an opinion during the legislative process.

AfD Vice Boehringer: “We are already very happy”

The verdict is at least an important partial success for the AfD. Peter Boehringer, deputy federal spokesman for the party, was satisfied: “I think it’s a really big success.” The constitutional court is demanding that the Bundestag create a foundation law. “This is decades overdue,” says Boehringer. “And that’s why we’re very happy with this part of the verdict.”

The Bundestag is now obliged to introduce a corresponding law. The coalition will have to take care of that. “As a traffic light coalition, we will of course look at the verdict again very carefully,” says right-wing politician Thorsten Lieb from the FDP parliamentary group. However, it was “clear” after the decision that an independent legal basis would be created. “That’s what we set out to do in the coalition agreement anyway,” says Lieb. “And that’s what we’re going to do now, based on that decision.”

The coalition would be well advised to step up the pace. Without a legal basis, the Bundestag is actually no longer allowed to make any money available to the foundations. Because this would be an unconstitutional procedure, as law professor Sophie Schönberger from the University of Düsseldorf said after the verdict was pronounced. She had represented the Bundestag during the proceedings as legal counsel.

Decision on constitutional fidelity postponed

However, the Federal Constitutional Court did not decide on another important question today: In 2022, during the budget deliberations, the Bundestag decided for the first time in a budget note that political foundations would not receive any money if there were doubts about their loyalty to the constitution. Therefore, the AfD 2022 was not granted any money.

The court, on the other hand, separated the AfD’s application and only wants to decide on it later. The application was only made shortly before the oral hearing and was therefore also too late – and it raises new constitutional questions, according to Karlsruhe. The court wants to give the Bundestag and the Federal Government the opportunity to take a position on the aspect of loyalty to the constitution, which has not yet happened due to the lack of time.

File number: 2 BvE 3/19