How can democracy in Germany become more direct?

by Christian Fischer

After the general election, we have a more colourful parliament in Germany and are experiencing great difficulties in forming a government. However, many citizens do not see this as the expression of an increased diversity of opinion and of irreconcilable contradictions – too much do most parties argue about points which are not really fundamental, and too much are their differences recognisable rather as tactical games in the party poker than as sound arguments. In the citizenry, therefore, voices against a facade democracy and for more direct democracy are becoming louder. That is why the relationship between direct and representative democracy shall for once be examined in more detail here.

“Vote today!” Why not also in Germany? (picture ma)

First, the term “representative”, by which our democracy in Germany is often characterised, must itself be examined critically. It does not appear in German Basic Law. Karl Albrecht Schachtschneider points out1 that the term was introduced by Carl Schmitt in 1928, in order to politically legitimise an ostensibly democratic system – or better said: to deprive the people of their right of decision. In the teaching of the Schmitt student Gerhard Leibholz, who unfortunately determined the jurisprudence of the Federal Constitutional Court over 20 years, the concept of representation served to establish the dominion by “representative” parties over a no longer sovereign citizenship. The political system of Germany would, on the contrary, be correctly described by the concept of (parliamentary) “substitution”. In this term, the constitutionally desired sovereignty of citizens is not lost.

Direct or via substitution – a contrast?

Even in Switzerland in which directl democracy is further developed, and which must be mentioned as a point of reference on this subject, there are parliamentary representatives who draft laws, laws of which not less than 90% are not “presented to the people”. Of course here every law can be put to a nationwide vote if 50,000 signatures demand this. The people can also initiate constitutional changes themselves, if they collect 100,000 signatures calling for this. At the federal level, laws passed by parliament and having constitutional status must be brought “before the people”. But all of this is no substitute for an at least semi-professional legislature. And certainly not for other genuine representation tasks of the state. Every court verdict is pronounced “in the name of the people”. Every “minister” and every policeman acts on behalf of the sovereignty of the people. And that is as it should be.
If you think of a democracy as a political cooperative (Switzerland is a “confederation”) in which the associates (“citizens”) have equal voting rights, then you see that there must also be membership meetings (“elections”) in which committees capable of acting are chosen. In the big “democracy cooperative”, these are a parliament as a legislative and a government as an executive branch, and a number of other sovereign institutions. In each cooperative, the committees are left alone with their work for a while; they can and must act independently. With a complex cooperative like a state, day-to-day business is far more extensive than, say, with a cooperative of winegrowers.
Unfortunately, in our state the parties have become more powerful and ensure that there is less and less contact between parliament and the sovereign, and that the people as sovereign can make themselves known politically almost exclusively via party activity – as if just being a citizen were not enough for “maturity”. In Germany this is also a consequence of the jurisprudence of the Federal Constitutional Court, which was shaped by Carl Schmitt’s doctrine,2 whereby to all intents and purposes, the parties were established as representatives of the people.

Fair and just elections

In Germany, unlike in many other democracies, a double electoral system has been set up for national elections, where one citizen per constituency is directly elected with a first vote and one party with a second vote. In this way the personality of a representative is to the fore on the one hand, and on the other hand, the proportionality of the second vote prevents a majority of the votes (for all defeated candidates) from being virtually ignored – as is the case with the majority voting system. That is a good idea. However, the candidates for direct election are almost always party representatives at the same time, and many of them are placed on the party list for the second vote in such a way that they are secure of their mandate even as runner-up or third place finisher. So this in turn almost reduces the idea to absurdity.
There are exceptions. In the last federal election in 2017, there were 28 non-party direct candidates, of which one reached 9% of the votes in his constituency; the others remained more or less clearly in the per mille region.3 Concerning party proportionality, a 5% clause has also been introduced – without any constitutional obligation – so that only fairly stable (and always sponsored!) parties make the final leap into parliament. Parties with fewer than about 2.8 million votes do not achieve a seat in the “Bundestag”. Even this arbitrary rule might be questioned some time!
Nevertheless, with the two votes, the elections of our representatives are clearly “fairer” than would be the case with an exclusive majority vote. But regardless of which direct candidates are elected, parliament will always reflect the second vote of the parties by means of the overhang seats. German Basic Law did not want that: “Political parties shall participate in the formation of the political will of the people.” (Article 21) That and nothing else is the function which the German Basic Law assigns to the political parties, and it does not say that the representation of the parties in proportion to each other should be practically the only possible form of expression for the will of the electorate – which would then really be only representative. Or that the parliamentarians would then even be under the obligation to vote in accordance with party policy, contrary to Art. 38 of the Basic Law (“Members of the German ‘Bundestag’ […] shall be representatives of the whole people, not bound by orders or instructions, and responsible only to their conscience”). So this pressure to vote in accordance with party policy is illegal.
Perhaps it would be more correct if the parties’ participation were limited to the second vote in each constituency: the first vote is for a direct candidate who, of course, belongs to a party but should not be allowed to be on a party list at the same time. The first vote would therefore be true majority voting. The constitutionally intended “participation of the political parties” is sufficiently given by the second vote. This provides for a broader representation of the different popular wills (plural) than can be obtained by an exclusively majority voting. The current criticism of the many overhang mandates would be pointless. The faction formation could, for example, be restricted to the party representatives of the second vote. Half of the deputies (first vote) would remain non-attached; of course they would be allowed to vote with a political group if they so wanted. Perhaps many party politicians would not get involved in the first-vote experiment, and the chance for non-party or party-politically non-career-minded, matter-of-fact citizens to be elected into the “Bundestag” would be greater. The vote cast for a candidate rather than a party which is actually intended by the two-vote system would be largely freed from the parties’ grip, and by its party proportionality, the second vote would even have largely mitigated the injustices of pure majority voting.
This is meant only as a contribution to a discussion about how party power might be limited. Measured against the mere “participation in the formation of wills” stipulated by German Basic Law, the parties would be very well served, because they would still have a higher degree of political decision-making power than can be read out of this sentence in the constitution.

Plebiscites in the federation, the states and the municipalities

This also states: “All state authority […] shall be exercised by the people through elections and other votes and through specific legislative, executive, and judicial bodies.” (Article 20, emphasis cf.). However, there are still no plebiscites as the exercise of popular power at the federal level today.
Once in 2002, there was an attempt supported by 348 of 549 delegates in the German “Bundestag”, i.e. by 63.3%. 66.7% would have been needed. It was to introduce a constitutional amendment that would allow the people to introduce legislative popular initiatives into the legislature by means of a three-stage voting procedure. (This requires the amendment of Art. 76 of the Basic Law, because this does not yet provide for the plebiscite as a source of legislation.)
Also in 2006, 2010, and 2013, there were attempts at parliamentary level and in coalition negotiations, but these failed mainly because of the CDU/CSU, and partly because of other parties.4 The association “Mehr Demokratie (more democracy) e.V.” has for many years been campaigning for the implementation of this Basic Law instruction,5 and also did so currently after the last “Bundestag” election, and parallel to the coalition negotiations.
But on which topics might there be plebiscites at federal level? Article 73 of the Basic Law provides information: Foreign and foreign trade policy, nationwide infrastructure tasks, defense and monetary policy, some other topics. Yes, these are important issues, but many important political issues are matters of the states or the subject of “concurrent” legislation of the federation and the states (Article 74 of the Basic Law), i.e. between the “Bundestag” and the “Bundesrat”. That is also good, because the more decentralised and federal the organisation of the state, the more democratic it is.
Speaking of federalism, our “Bundesrat” (federal council) can also be taken into consideration when considering direct democracy. The citizens are not very conscious of it as the council representing the states. There is a reason for this: It is not elected by the citizens. It is an assembly of the state governments, i.e. their executives, which have 3–6 votes depending on the federal state. Why not elect the “Bundesrat” (federal council) by direct vote after an according constitutional amendment of Art. 51? And let it have its own personnel? One could still go with several representatives per federal state and fashion this election according to a system in which a vote is cast for a candidate rather than a party, with one vote per citizen. Of course, the candidates can be party members. But then not only first place finishers, but also second, third and so on placers could join the state representation.
But let us return to the plebiscite. Referendum regulations were already included in the state constitutions of some federal states between 1946 and 1950, in the other states between 1974 and 1996. There are also such regulations at municipal level. The rules are very different, and not infrequently the necessary quorums are so high, that they discourage interested citizens from the outset from taking on such hardships with so little hope of success. For example, this led to more than 1,500 referendums having been held in Bavaria by 2013, but not a single one in Saarland after this joined the Federal Republic. Nationwide, more than 7,000 referendums were counted.6 An example of a plebiscite which failed because of the quorum was an initiative in Rielasingen, Baden-Wuerttemberg, which demanded that a well-run secondary school be continued. Even though a large majority of the voters were in favour, the necessary quorum was not achieved.
Plebiscites led to the reestablishment of the state of Baden-Wuerttemberg in 1952, and to the admission of the Saarland into the Federal Republic in 1955–1957. In 1996, the merger of Berlin and Brandenburg was rejected by referendum of the population. Other random examples are the non-smokers’ protection in Bavaria or the school reform in Hamburg (both 2010), the partial privatisation of the Berlin water works or the project “Stuttgart 21” (both 2011), the rejection of a huge outlet center on the former freight yard (and Loveparade-) area in Duisburg, or the approval for the continued operation of Tegel Airport in Berlin (both 2017).
So despite the lack of coordination at the federal level, direct democracy is by no means a foreign body in the political life of our country. Voting must be possible on all issues of public concern, and, incidentally, also on questions of tax collection!
Werner Wüthrich gives a detailed account of Switzerland’s positive experience of tax settlements by the sovereign7 and summarises this as follows: “The objection that such a thing works only on a small scale, like in municipalities or in small cantons, has proved to be a mistake. The referendums have repeatedly led to amazing results that stand the test – perhaps precisely because the voters are not financial and economic experts.” In Switzerland, this works above all through the interplay between parliamentary work and direct initiatives from the people. This successful interplay can also be followed over decades using the example of agriculture.8 It is indeed easier to reconcile individual initiatives with an overall popular will with the help of parliamentary mediation and proposals, which perhaps also take into account more, and more far-reaching criteria. Marianne Wüthrich demonstrates how this process can in the meantime also start to unravel in Switzerland.9

What should be done in Germany?

Plebiscites on factual issues must be anchored institutionally, not only at the state and community levels, but also at the federal level. This is what German Basic Law has been aiming at since 1949. For this purpose, Art. 76 (1) must be amended so that bills can also be introduced into the “Bundestag” directly by referenda or, depending on the outcome, can gain legal force immediately.
At the same time, plebiscites at the state and local level must be further developed and put to practical use; democracy thrives on decentralised federalism, and many important topics are constitutionally no federal topics. The quorums must be made low-threshold or even completely abolished everywhere. What is the democratic meaning of these quorums if approved ballots are sufficiently officially published?
Voting must be possible on all issues, unless they pursue goals that violate the “eternal” Articles 1 and 20 of the Basic Law. This is especially true for topics of tax collection. On this point, the previous regulations at the state and local level have to be corrected. There is no constitutional justification for this restriction.
Finally the direct right of the sovereign to vote on matters in the legislative process requires the awareness among politicians that this is part of the self-evident political practice in a democracy. The people have at least a certain influence on the cooperation of their chosen politicians, in the selection of their representatives. Yes, lobbying, party power and the peculiar laws of the profession of politicians are posing major obstacles precisely at this point. Therefore, in addition to the plea for better voting rules, let me introduce the proposal into the debate here that candidates for the first, the direct vote should not be allowed to protect themselves via second vote on the party lists at the same time. This question might be the subject of a direct legislative initiative at the federal level, too – if that were finally possible. Lastly, federalism can be strengthened by transforming the Federal Council from a body of state governments into a body of directly elected representatives of the states, thereby enhancing its value.
We may not give up our democracy; we must make it more direct – also in the sense of our Basic Law.     •

1    Schachtschneider, Karl Albrecht. Die nationale Option (the national option). Rottenburg 2017, p. 72 f.
2    ibid
3 and
5  and
6  and
7    Wüthrich, Werner.
8    Wüthrich, Werner.
9    Wüthrich, Marianne.

(Translation Current Concerns)