The Federal Constitutional Court has some experience with politically charged proceedings and has developed its strategies for dealing with emotions in the hearing room. In the first phase of such negotiations, the plaintiffs are given a certain amount of space to vent their outrage, of course in an appropriate manner. In the second phase, it examines whether there are really constitutional arguments behind the anger, the only currency that counts in Karlsruhe. Sometimes you find what you’re looking for, sometimes you don’t.
The Karlsruhe hearing this Tuesday was about the electoral law that was reformed last year. Its widely appreciated benefit is that the Bundestag will in future be limited to 630 members – its almost unbridled expansion to the current 734 members would come to an end. But what the opposition is raising is that in the future there will be no more overhang or compensatory mandates, and constituency winners will only be eligible if the party has won enough seats via the second votes. So what counts most is the party vote. In addition, the traffic light on the final stretch of the legislative process had deleted the basic mandate clause, according to which three direct mandates were previously sufficient for entry into the Bundestag. Without the clause, the Left could fail at the five percent hurdle, and perhaps the CSU too.
Merz tries to compare it to a beauty contest
The plaintiffs largely agreed that this was an unfair attack. The Union faction, the Free State of Bavaria, the Left and a group of around 4,200 individual complainants have sued. CDU leader Friedrich Merz spoke of a beauty contest: In the future there will be a kind of constituency list that will decide who gets into the Bundestag. “Constituency mandates are no longer won or lost, they are allocated.” The Bavarian Interior Minister Joachim Herrmann fears for the acceptance and credibility of democracy because the directly elected representative – the contact person for the citizens – is now losing importance. The result is an “unacceptable underrepresentation of individual states” in the Bundestag. By which he meant above all a country.
Alexander Dobrindt, chairman of the CSU regional group in the Bundestag, chose an even sharper formulation. “The parliamentary majority has taken action here not only on its own behalf, but for its own cause.” And in case anyone didn’t understand what he meant by that, Gregor Gysi – in a black robe as legal representative of the Left – pointed out again: The traffic light coalition had “abused its majority in the Bundestag to force two parties out of the Bundestag ” – namely the CSU and the Left.
What particularly angers the plaintiffs is the fact that the deletion of the basic mandate clause in March 2023 only made it into the draft law a few days before the Bundestag vote. Friedrich Merz said he was completely surprised by it. And Christian Kirchberg, a lawyer for the Left, called this an “abuse.”
Did the legislature act unconstitutionally hastily?
But at this point, phase two of the trial had already begun, that of solid arguments – and the judges’ bench did not seem to be really convinced that the Bundestag had shown unconstitutional haste here. Of course, the deletion of the clause was made at short notice, said Vice President Doris König, but it had already been controversial beforehand. Her colleague Thomas Offenloch pointed out the Bundestag’s autonomy to determine its own procedures. “There is an area that we are not allowed to enter.” And judge Christine Langenfeld noted that it is actually the legislature’s job to change its opinion after an expert hearing.
There shouldn’t be much to be gained in Karlsruhe from the argument that the traffic lights had, so to speak, run over the opposition. König had, of course, made it clear at the start that the focus of the negotiations, which will last until Wednesday, should lie elsewhere. For example, the five percent clause, which has so far kept small parties out of parliament. The negotiation will also have to clarify whether this barrier clause “is compatible with fundamental electoral law principles and equal opportunities for the parties without the corrective of the basic mandate clause.” This means: The court may consider lowering the threshold because otherwise too many votes would be irrelevant to the composition of the Bundestag. This would help the CSU and the Left.