Hungarian Conservative

A Devastating Blow to the German Opposition?

Bundestag, Germany
Bundestag, Berlin
Wikimedia Commons
In a fast-track procedure, the left-wing governing majority of Germany has recently amended the electoral law in force since 1949. The biggest loser of this reform may be the current opposition: two opposition parties (CSU and The Left) could be dealt a fatal blow by the new legislation. Until now, this kind of procedure has been a real taboo in German political culture, which has always advocated for the need of consensus on every issue. The opposition is appealing to the Constitutional Court and will fight with all its might to abolish this new electoral reform.

This analysis was first published in Hungarian on Mandiner.

In Germany, the CSU may become the biggest loser of the electoral reform. The arguments and motives behind the planned changes can be familiar sounding from the great European debates on the rule of law.

In a fast-track procedure, the left-wing governing majority of Germany has recently amended the electoral law in force since 1949. The biggest loser of this reform may be the current opposition: two opposition parties (CSU and The Left) could be dealt a fatal blow by the new legislation. Until now, this kind of procedure has been a real taboo in German political culture, which has always advocated for the need of consensus on every issue. The opposition is appealing to the Constitutional Court and will fight with all its might to abolish this new electoral reform.

Arroganz bis zum Gehtnichtmehr!,’ an outraged opposition leader shouted during a parliamentary debate in the Bundestag, meaning something like ‘This arrogance is over the top!’. But what really happened on 17 March in the German Bundestag? The fact of the matter is that that the largest electoral reform in the history of post-war Germany was approved with a simple majority of 399 votes in favour and 261 against. It was clear from the vote and the plenary debate that the liberal government majority, the so-called ‘traffic light coalition’ of the SPD, the Greens, and the FDP, found itself in stark opposition to the other parties in parliament. While the MPs of the governing coalition supported the proposal in accordance with party discipline, the opposition is engaged in a fierce rear-guard action against it. Hungarian readers may also find the arguments and motifs concerning the German electoral reform familiar.

A Limitless Parliament

The electoral law that determines the composition of the German Bundestag is only superficially similar to the Hungarian one. According to the law currently in force, the German parliament consists of 598 members, 299 of whom are elected in individual constituencies and the rest on 16 federal states, or Länder, lists, also 299 by default, although there are frequent upward deviations. This electoral law served the principle of proportional representation, whereby each party received seats according to its party list result. This meant that the number of mandates won by a given party in individual constituencies was deducted from the number of party list mandates. The reverse was also true:

if a party won more seats in an individual constituency than it would have been entitled to according to its list result, and thus won so-called overhang seats, the other parties received compensatory seats.

That is how full proportionality between the parties was restored.

In the last elections, the two big alliances—the SPD and the CDU/CSU—only achieved a list result of around 25 per cent, but won 264 of the 299 individual constituencies, resulting in a very large number of overhang and compensatory seats. In addition, the proportions between the Länder had to be maintained as well, so that the Bundestag suddenly grew from 598 to 736 members. Although the previous system was fully proportional, there were still elements of the majority system left over, such as the overhang seats and the Grundmandatsklausel, that is, the base mandate clause.

The background to this complex mechanism is that the popular parties, in particular, have been weakened in recent times, but have still been able to win a disproportionate number of individual seats, sometimes with very poor results (in Dresden, for example, the CDU’s individual candidate won a district with only 18 per cent of the vote in the multipolar system there).

The Consensus of the Years of Peace

The electoral system described above did not become so complicated without antecedents. In 1871, when the German state, the German Empire, was founded, the electoral law of the parliament was quite simple: all representatives were elected in individual constituencies. During the First World War, Germany descended into a military dictatorship, which stigmatized the majority electoral system in the eyes of Germans. The so-called Weimar Republic of 1919 therefore deliberately broke with this tradition. It introduced an exclusively proportional list system with no electoral threshold. However, this solution did not stand the test of time either, and the Nazis deliberately exploited its weaknesses, so that a purely proportional electoral system led to an even more serious conflagration.

Thus, the 1949 post-war electoral law was a compromise in which the founders of the new Federal States of Germany attempted to combine the advantages of voting on list and majority voting in a single system. This solution eventually worked and became an integral part of German political culture.

Until 17 March of this year, no political force dared to break the logic of this system,

even though a simple majority in parliament would have been enough to change it. All the parties stuck to this system, and mutual trust remained unbroken.

The reason why the status quo eventually had to be changed was because the election results created rainbow conditions to the detriment of the larger parties (meaning that more parties could enter parliament; the current 20th Bundestag, for example, has eight parties). Furthermore, the Federal Constitutional Court has made several decisions that have only increased the number of compensatory seats. The number of representatives has thus become too large—and with it the dissatisfaction of German citizens with the oversized parliament.

A New Compromise Sought

Following the 2013 elections, the then president of the Bundestag, Norbert Lammert (CDU), was the main advocate for reforming the electoral system, saying that if the number of parliamentary representatives continued to grow it would hamper the work of the legislature. However, Lammert failed to reach a consensus between the then Merkel-led CDU/CSU–SPD coalition and the opposition. The majority was there, but they stuck to the unwritten rule that there would be no electoral reform without the opposition’s agreement. The problem worsened after the 2017 elections, but Lammert’s successor, Wolfgang Schäuble (CDU), was no closer to finding a solution either.

After the 2021 elections, the CDU/CSU ended up in opposition.

After that, the newly formed left-wing coalition led by Olaf Scholz also announced a reform of the electoral system.

Different Interests — Different Democracy?

But why has it been impossible to reach a compromise on the new reform? The answer lies in the different electoral bases of the parliamentary parties. The SPD and CDU/CSU have long had similar interests. Traditionally, they have been the two strongest German parties and have achieved good results in all parts of the country—they have always won the lion’s share of constituencies. For them, therefore, the old consensual situation was basically suitable, because it ensured that there would be locally elected, locally accountable individual MPs everywhere in the country.

However, the SPD’s results have declined in recent decades, and the CDU has won more and more constituencies, even though it has been weaker on the lists. This was due to the fragmentation of the system, with a larger gap between the CDU and the runner-up (usually the SPD). However, in the 2021 elections, the Social Democrats were marginally ahead of the CDU/CSU and were able to form a government together with the Greens and the Liberal Democrats. Nevertheless, the members of the SPD saw this only as temporary success and that constituency representation should be weakened in favour of list seats, while at the same time abolishing the majority traditions altogether.

The situation is even clearer for the Greens and the FDP. Both parties secure their seats almost exclusively through lists, and what is more, they do not have a strong base. Interestingly, the electoral interests of the far-right AfD are also very similar to those of the Greens and the FDP, with many AfD MEPs happy to vote for the left-liberal proposal.

Another feature of the German party system is the existence of parties with strong regional roots.

The centre-right CDU is not even running in Bavaria but is being replaced by its Bavarian sister party, the CSU, which is, in contrast, running exclusively in Bavaria.

This is true for local, regional, and federal politics as well, that is, in Bavaria, it is the CSU that nominates candidates and lists, while the CDU does so elsewhere. In 2021, the CSU won 37 per cent of Bavarian list votes, winning 45 of the 46 constituencies in Bavaria. At the same time, the CSU is considered a small party at the federal level, with only 5.2 per cent of the list votes in the whole of Germany. Therefore, under the old electoral system, the only thing that mattered to the CSU was how many individual candidates it could have in the Berlin Bundestag. Since the last elections in 2017, they have not won a list seat.

Furthermore, the old electoral law recognized the so-called base mandate clause: if a party won at least three individual constituencies, the five per cent threshold did not apply to it, and it could also obtain list seats. This base mandate clause has always been the most important for The Left, which, as the successor to the East German Communist Party, achieves more significant results in the area of the old GDR than in the West to this day. At the federal level, it has therefore twice failed to meet the five per cent threshold but has met the base mandate clause because of the seats it has won individually. This was the case in 1994 and the last elections in 2021. In the previous situation, since 2017, this criterion was irrelevant for the CSU, as it only had individual representatives and no list candidates, but this could change now.

Fast-Track Legislation

The SPD, the Greens, and the FDP have already agreed in the 2021 coalition agreement to reform the electoral system within a year and to strengthen the role of list results over constituency and individual results. Although an election committee has been formed, it is not the committee but three MEPs, Sebastian Hartmann (SPD), Till Steffen (Greens), and Konstantin Kuhle (FDP), who are considered the fathers of the amendment. The reform was not formally tabled by the government but by the three coalition factions. The proposal thus bypassed both the Ministries of the Interior and Justice and the six-week consultation period with the Länder, which is mandatory for government proposals under the German constitution. It is particularly poignant that this proposal was changed just a week before the plenary vote, and there was only one committee meeting where there was time allocated for discussing the amendments.

The Devaluation of Individual Constituencies

The answer to the question what the new German electoral system will look like in the future is in the text of the adopted draft law. Most strikingly, it formally caps the number of seats at 630, which is the simplest aspect of this reform—the other details are more complicated.

Let us take a look at what the provisions of the new reform are exactly. Perhaps its biggest flaw is that the voters themselves will not fully understand what and who they are voting for and why. If a party has overhang seats in an election and the proportion of parties within the 630 limit cannot be balanced by compensatory seats, then no seats will be allocated in the individual constituencies where the party has the worst result. Furthermore, only those candidates whose party also crossed the five per cent threshold will be allocated an individual mandate in the future. Thus, non-attached members will effectively no longer be able to obtain an individual mandate. By international comparison, such a regulation exists virtually nowhere else in the world. In addition, the base mandate clause has been abolished, as the reform reduces the role of constituencies and is not intended to reward regionally well-performing political forces.

The Government Coalition Has Set off a Bomb

The law proposal has triggered a political earthquake in Germany. Although the adopted amendments may seem like minor details, they have broken the basic logic of the previous electoral system: majority voting in individual constituencies is now a mere symbol, and only list voting applies. While it is true that the previous system was already proportional, the constituencies were of great importance. On the one hand, each individual constituency won meant a guaranteed mandate, and on the other hand, the base mandate clause rewarded the parties that were successful in the individual constituencies. This represents a fundamental change in the important internal logic of electoral law—

this is why members of the government parties themselves have called the reform the biggest electoral reform in decades.

Moreover, the new electoral law adopted by the government majority constitutes a veritable existential threat for two of the three opposition parties: the Left and the CSU. The Left, for instance, would no longer be able to cross the parliamentary threshold with its 2021 result under the new law as the base mandate clause has been abolished. For the SPD, this would remove the nuisance of a perennial left-wing rival, especially in the eastern Länder.

Perhaps even more significant is the fact that the Bavarian CSU is also standing on the edge of the abyss under the new rules. If it achieves a result which is just 0.3 per cent worse than in 2021, it could suffer a total electoral defeat, even if all its individual candidates were to win in their own constituencies! Why so? Because the CSU, which might not cross the five per cent threshold, will irretrievably lose all of its individual mandates due to the effect of the list result. The fate of the individual seats will also be decided by the list, and the three-seat exception will no longer apply either (which would have been important for the CSU). All in all, the CSU could be the absolute loser of the reform, which the party could only avoid by running on a list not only in Bavaria but also in the whole of Germany. This would, however, deprive its sister party, the CDU, of votes, as joint lists are still not recognized in German electoral law. Namely, the aim of the government coalition is clear: they want to dismantle the largest opposition party alliance.

A New Political Culture?

The series of taboo-breaking acts by the government coalition could fundamentally change the dynamics of the German party system. So far, the CDU/CSU has treated both the Greens and the Social Democrats with kid gloves in opposition, because they may be needed as coalition partners in the future. However, the governing parties have not repaid this trust, instead, they have deliberately broken a long-standing, across-the-board political consensus. The CDU was only useful to them as long as it served their interests, and the conservative opposition is also beginning to recognize this. According to CDU Chairman Friedrich Merz,

confidence in the government coalition has been shaken, and he announced that the CDU would fight to abolish the reform in the future.

Both the CDU/CSU faction and the CSU-led Bavarian government will therefore appeal to the Constitutional Court for a constitutional review.

Frank-Walter Steinmeier (SPD), President of the Federal Republic of Germany, did not accept the opposition’s arguments and signed the proposal into law on 8 June 2023. In doing so, he broke another unwritten law, as the German President usually waits for the Constitutional Court’s ruling on draft laws against which a constitutional review request has been filed.

However, the German constitution does deliberately not regulate electoral rights in detail, therefore the outcome of the review is uncertain. The Basic Law of 1949 was only intended as a temporary solution and ultimately stood the test of time only because it was supplemented by the unwritten rules of political culture. If an incumbent government majority drastically changes the electoral system without the opposition, even to the point of jeopardizing their political existence, there is a risk that any further change of government could rewrite the electoral system as well—if the popular side ever manages to win a majority again, which, given what has been described, promises to be a very difficult task.

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In a fast-track procedure, the left-wing governing majority of Germany has recently amended the electoral law in force since 1949. The biggest loser of this reform may be the current opposition: two opposition parties (CSU and The Left) could be dealt a fatal blow by the new legislation. Until now, this kind of procedure has been a real taboo in German political culture, which has always advocated for the need of consensus on every issue. The opposition is appealing to the Constitutional Court and will fight with all its might to abolish this new electoral reform.