analysis
In principle, the legal experts from the CDU and CSU are prepared to better protect the Constitutional Court. But the Union is cautious about changes to the Basic Law. Where does it stand in the current debate?
Making the Federal Constitutional Court crisis-proof and protecting it from access by authoritarian or extreme parties should they gain a majority in the future – this is what lawyers have been calling for for years. They are now also being heard in the political sphere.
It is also about changing the Basic Law. This requires a two-thirds majority in the Bundestag and the Bundesrat. That means: The traffic light coalition needs the Union. And she’s having a hard time.
It was a CSU MP who took up the issue in a plenary debate in November. Volker Ullrich warned of the “vulnerability” of the Federal Constitutional Court and called for greater protection of the court by writing central elements into the Basic Law. “I ask that we think about this together.”
Union MPs annoyed
This involves, for example, including the division of the court into two senates, the twelve-year term of office, the exclusion of re-election and the two-thirds majority for the election of judges in the Basic Law. Because then these rules could no longer be changed with a simple majority.
Last week, Union MPs were, above all, angry. Namely through two colleagues from the SPD and FDP: Johannes Fechner and Stephan Thomae. The two right-wing politicians explained their ideas to “Welt am Sonntag” on how the Federal Constitutional Court could be strengthened.
“Why do you go through the press and not come up with a concrete traffic light proposal,” criticizes the deputy chairwoman of the Union parliamentary group, Andrea Lindholz. She lacks the necessary seriousness. “This shouldn’t be a political debate about the press. If it is, it has to be a serious debate in the background.”
The Union faction’s legal policy spokesman, Günter Krings, is also annoyed: “I have the impression that individual politicians want to make a name for themselves.” Unfortunately, there is great fear in the discussion. That’s grist for the mill of the radicals. “If we continue the debate so publicly, it will do more harm than good.”
The start of the discussion was “unfortunately anything but helpful,” says Ansgar Heveling, general counsel for the Union faction. “The SPD and FDP have not taken advantage of the Federal Constitutional Court’s concern for resilience. The Basic Law is not suitable as an instrument for raising profile among coalition partners.”
There are only months left
The Union’s general line towards changes to the Basic Law is also restraint – regardless of the topic. Last week, Friedrich Merz emphasized this during the budget debate in the Bundestag: “I fundamentally do not hold out the prospect of you agreeing to this today.”
The right-wing politicians in his group also emphasize this in unison. “We always need really good and compelling arguments,” says Krings.
The next federal election is not scheduled to take place until September 2025. In the time count of the MPs, the legislative period still essentially ends this year. After that it’s just an election campaign. That means: There are only months left. And from the Union’s point of view, that is not enough for a change to the Basic Law.
However, the Union doesn’t want to completely brush off the issue either. “The experience in Poland, for example, has shown that a constitutional court can quickly become the target of interventions and attacks by political forces that are not good about the rule of law, separation of powers and the mutual control of constitutional bodies,” says Heveling. The concern to make the Federal Constitutional Court resilient to such forces therefore makes sense in principle.
Warning and skepticism
One could think about writing individual additional rules for the Federal Constitutional Court into the Basic Law, says Krings: “For example, the autonomy of the Federal Constitutional Court, the length of the term of office or the exclusion of re-election.” But you have to consider at every point whether the benefit outweighs the possible harm.
There is particular skepticism about the proposal to write the two-thirds majority for the election of judges into the Basic Law. An aspect that is considered particularly important in expert circles and was one of the first points to be discussed.
But the Union warns. “Anchoring the two-thirds majority for the election of judges in the Basic Law would enable a blocking minority,” says Krings. This means that a parliamentary group that has more than a third of the seats in the Bundestag could block the election of a judge there.
There are considerations as to how such a blockade could be resolved – for example, transferring the election to the Bundesrat instead of the Bundestag. Changing the electoral body in this way would look like “panic,” says Krings.
More cross-party Bill from the states
Corresponding ideas have been discussed publicly for a long time. And the right-wing politicians Fechner, Thomae and Heveling had recently proven that they – together with their colleague Konstantin von Notz from the Greens – are able to discuss and implement even sensitive legal policy issues quietly with each other.
There was, for example, the law on foundation financing, which contains a constitutional clause that could make it difficult for the AfD-affiliated Desiderius Erasmus Foundation to receive state funding in the future.
Another example is the increase in the upper limit for state party financing – also a sensitive issue because the MPs decided that their parties should receive more money from the state in the future. A decision on your own behalf. Both projects were even coordinated with the left.
The reluctance in the Union parliamentary group in the Bundestag also does not correspond to the attitude of the Union-led state ministries of justice. They are working largely unnoticed by the Berlin political establishment together with colleagues from other parties on a draft law. Cross-party.