A more direct democracy in Germany (Part 2)

Elections and party rule

by Christian Fischer

This article is the second instalment of “A more direct democracy in Germany” (Current Concerns No 8 from 2 April). Also in this part, the focus is not primarily on the concrete abuse of democracy in Germany, but on the institutions available to the sovereign, the citizenship, as well as on the possibilities of their development towards more direct democracy. The focus is on what many people living in dictatorships see as the core of a democracy: free and secret elections. In our country, many see elections as a decayed form of democracy,  based on the emergence of a professional class of politicians and a de facto exclusive representation of the citizens by parties. Is that true? What are the perspectives?

Reality

In every democracy, the parliament as a legislative power is elected directly by the citizens, in federal systems on both levels, the federal and the state level. Here, the deputies of the citizens determine the business of legislation. Even when supplemented by direct voting opportunities for citizens, a self-reliant parliament is always necessary, even in Switzerland.
It would be nice if the executive authority, too, would be elected by this political institution and if it would be responsible to the parliament – this is partly the case in Germany, unlike in other democracies. In France and in the USA, the president is indeed dependent on the parliament, but is not elected by it. In Great Britain, the ministers (executive power) likewise remain parliamentarians (legislative power). Different countries, different customs. It would also be nice if the judiciary power would be designated by the parliament, the central democratic intitution, – his is not the case in Germany, unlike in many other democracies, such as Spain and Italy. In our country the judges are under the ministers’ (executive power) supervision and they are also appointed by them.
The right to vote for the “German Bundestag” (and for some state parliaments), which gave the voter a first and a second vote, could have opened doors for the election of a candidate beyond party affiliation. Because with the first vote the voter can directly elect a candidate of his constituency by majority vote. Half of the members of the “Bundestag” are thus directly designated by the voters. The counterweight to the majority vote in the constituency, which is supposed to protect minorities – the percentage distribution of seats for the parties according to their percentage share in the second votes – would not have changed anything in principle. A first vote for a person of one’s choice in the local constituency could have been a good corrective to an oligarchy of political parties.
Unfortunately, in the course of the German Federal Republic’s history, the parties have nevertheless been granted the right to an almost exclusive representation of the citizens’ will. Gerhard Leibholz, a disciple of Carl Schmitt, was instrumental in this process. He spent 20 years at the Federal Constitutional Court, where his judgments directed German democracy from citizen sovereignty to a party representation system.1 By the way, the Basic Law does not mention the term “representation” at any point.
Today, the candidates for the first vote are almost exclusively party candidates, being secured on their national lists for the party vote. In any case, they come into parliament if the party comes into parliament. The composition of the “Bundestag” and of many state parliaments is based exclusively on the proportional representation of the second vote.  “Überhangsmandate (Overhang seats)”² are smoothened by additional balancing mandates for other parties. The direct election of candidates is thus effectively bypassed, because the candidates are nominated by the parties. At present, due to this smoothing, we do not have 598 MPs for the 299 constituencies in the “Bundestag”, but 709. These regulations are not derived from the Basic Law, but from later decisions on the right to vote.
There are initiatives for the establishment of non-partisan citizen candidates.³ Even our electoral law permits this quite simply: A candidate needs 200 signatures from his constituency. But there is no further official support for this, while the parties enjoy massive official support through official funding, privileged status in the parliaments due to a parliamentary party status, preferential treatment in nominations for important public offices, etc. Although, there have always been direct candidates independent of political parties, no one has been elected since 1950. In the 2017 “Bundestag” elections, the most successful non-partisan direct candidate won respectable 9 % of the votes in his constituency. Others remained below 1 %.⁴
The parties do not only finance themselves through membership fees and donations. For each euro of contribution or donation, they receive additional 0.38 euros from the state. If they achieve at least 0.5 % of the votes in elections, they receive 0.70 euros per vote from the state.5 The parties must disclose their income, what they actually do; after all, they get additional money from tax money for it! With some effort the citizen can even track the party financing. In the parliaments, the parties form parliamentary groups if they have three deputies, which gives them better access to information and decision-making bodies. These are all privileges unknown in the Basic Law knows. Nothing at all is known about a “parliamentary group obligation”; it does not exist (Article 38 of the Basic Law), even though for career reasons most members of parliament behave as if it existed.

Some perspectives

These brief descriptions provide starting points for supporting non-party candidates and restricting party power to what is intended by the Basic Law: “Parties participate in the political decision-making of the people.” (Article 21 Basic Law) That is all. No thought of the usurpation of all state functions by parties.
Undoubtedly parties have a right to exist as bundled representation of various interest groups. The distribution of mandates according to the proportional representation of the parties also makes it possible to protect minorities, which is hardly possible if there are only majority decisions. However,  undoubtedly, the entire political process cannot be placed exclusively in the hands of political parties, which practically means in the hands of some party leaders. This is unworthy of sovereign citizenship and not wanted by the Basic Law. So what should we do?
Why add tax money on top of membership fees and donations, which by all means have to remain transparent (!). Yes, without tax money the parties would be poorer. Maybe they would not be able to stick square kilometres of meaningless posters during election campaigns and place similar meaningless advertising spots on television and radio. The world would not be poorer. Why should not such waste be dried up financially or simply be banned? Tobacco advertising had also be banned.
With the money saved, the state could support what our electoral law actually wants: a direct candidate election on equal terms to party election. One could at least temporarily set up an office in each constituency in which candidates who are independent of political parties or who can prove that they have a minimum number of supporters could present themselves personally and answer questions from fellow citizens and voters. One could set up an official nationwide platform on which these candidates could present themselves and their political ideas in a way that is visible to everyone.
Above all, it should be forbidden for first-vote candidates to be included on a party list; for the success of the party there is indeed the second vote. The personality should be convincing, not the cell of a party body. Yes, party candidates can still be elected with the first vote and thus strengthen the weight of the larger parties, if at the same time the balancing mandates are abolished. One could also create negative balancing mandates and reduce party votes by the extent that party-bound first-vote candidates were elected! Why not? These considerations also apply to the “Bundestag” as well as to the similarly structured state parliaments, if they decide to do so. Or if a referendum (see Current Concerns No 8 from 2 April) would enforce this.
After all, there would be a chance that, with state support for the first-vote candidates and a reduction in tax revenues for the parties, more committed, objective-oriented citizens would be elected. They would then not have to take on the hard way to the top (coined “Ochsentour” in German) in a party where their former orientation on objectives often falls by the wayside or is “straightened out” by party politics. Further suggestions: There must be no fraction privilege in the parliaments. Each individual Member of Parliament must have equal access to all information and decision-making levels. And: the arbitrary 5 % clause should be lowered. Millions of votes for smaller parties are thus lost. A first-vote candidate represents around 200,000 citizens in his constituency. If we take this figure as a yardstick, a 0.5 % clause would be democratically fair. The “truth” may lie in between.
Parliament must once again become the place for debates on legislation in the public interest. There are many obstacles, but certainly not the Basic Law. One obstacle, for example, is the self-disempowerment of members of the “Bundestag” in favour of the EU executive by Article 23 of the Basic Law, as amended after reunification.6 This would be a topic on its own. Anothter obstacle is a fundamental party consensus, which often permits only pushed up sham debates on minor issues. And not the smallest obstacle is the practice of coalition agreements introduced in the 1990s, in which government action with regard to legislation is laid down for four years. Thanks to the parliamentary majorities loyal to the government, parliamentary debates thus become a secondary matter.
But for all that: Parliament must be the democratically elected place of debate on sovereign legislation and must not be left to party leaders and ultimately to the executive. This must be supplemented by facilitating referendums on all topics the sovereign or a significant part of it wishes to put to a legislative vote, see Part 1 (Current Concerns No 8 from 2 April).
One might object: Who should decide that? The decision-making bodies are firmly in the hands of the parties. That is right. But what is the alternative? Stay in the bush? Make a revolution? You have to throw out some ideas! Better ideas are always welcome.
The basic idea remains: institutional structures facilitating the participation of citizens in political life will also promote this involvement. And more direct participation of the citizens in the political life will make it more difficult for political actors who are not oriented towards the common good and the honest communication of different interests. That is the perspective for a sustainable democracy.    •

1    Schachtschneider, Karl Albrecht. Die nationale Option, Rottenburg 2017, pp. 72.
2    “Überhangsmandate (Overhang seats)” are additional mandats for a fraction. They arrive because one party has won more direct mandats than they would be entitled o in proportional representation.
3    http://buergerkandidaten.de/ und http://buergerkandidaten.de/bewerbungen/472
4    ibid.
5    Rudzio, Wolfgang. Das politische System der Bundesrepublik Deutschland, Wiesbaden 2019, pp. 142.
6    Fischer, Christian: https://zeitgeist-online.de/exklusivonline/reflection-and-schoengeistiges/1040-demokratie-braucht-nation.html