More direct democracy in Germany (part 1)

Referenda (popular votes)

by Christian Fischer, Cologne

Sometimes “representative” democracy and “direct” democracy are seen as opposing and only the latter is qualified as “true” democracy. It is not recognised that direct democratic possibilities also presuppose a parliamentary system and that “direct” democracies must and are always “mixed forms”. A second misconception is favoured by theories according to which “representative” democracies are not and never have been democracies anyway, because they were designed by the economically powerful solely for their interests and in this sense would always be functioning anti-democratically.1 Here, however, no distinction is made between, on the one hand, the institutions historically created for many different reasons, which as well support democratic decision-making processes, and, on the other hand, their actual use – or even their malpractice.
The aim of this multi-part article is to show, contrary to these misconceptions, how real democracy in Germany can become more direct. The focus is less on the actual current malpractice and more on the existing institutions that are already at the sovereign’s and at the citizenry’s disposal, as well as on the opportunities of their direct democratic further development. The first part deals with the centrepiece of a direct democracy: the referendum.

Quorums in petion of referendums and in referendums in the German federal states.
(Table wikipedia an cf.)

The reality

There is “direct democracy” in Germany, i.e. the possibility for referendums, at the municipal level (here the referendum is called “Bürgerentscheid”, citizen‘s decision), in almost all rural districts (except so far in Baden-Wuerttemberg and Hessia) and in all federal states (here the state constitutions speak of the “plebiscite”), where the citizens can directly issue legislative proposals into the state parliaments and possibly vote on these legislative proposals. However, there are still no referendums at the national level, although the Constitution stipulates that state power can be exercised by the people in elections and plebiscites (Art. 20).
In order to allow plebiscites at the national level, Article 76 of the German Constitution would have to be amended, because this article determines who can introduce legislative initiatives into the legislature – the sovereign as a direct actor was unfortunately “forgotten”. This is regulated differently, i.e. more directly, in the state constitutions. In the German Bundes­tag there have time and again been initiatives heading in this direction, some nearly successful. The coalition agreement of the Federal Government of 2018 contains for the first time a corresponding declaration of intent (Item XIII 1.), the implementation of which, however, is not yet known.
At the state level, there are different levels of quorums for initiating votes and different levels of quorums for the necessary approval in the event of implementation. Only in Bavaria, Hessia, Hamburg and Saxony there is no quorum on the votes once an initiative has got voted on. There is uniformity at all levels in the provision that direct financial issues cannot be the subjects of referendums.
The existing voting possibilities were and are used by the citizens, to a varying extent the states – according to the differently high hurdles. But over the decades there have been thousands of votes in Germany at state and municipal level.
At the state level, 17% of all plebiscites were successful.2 Better known examples are the recently successful initiative in Bavaria to protect bees and thus also food, or an earlier vote on the protection of non-smokers; a few years ago there was a vote in Baden-Wuerttemberg on the Stuttgart 21 railway station project; in Hamburg years ago there was an important vote on educational policy – and much more, which many people who are not directly affected often do not even notice.
Incidentally, it is also possible to vote at federal level: on the structure of the federal states. This possibility was also used from the 1950s to the 1990s and led in part to new federal states (Saarland, Baden-Wuerttemberg) and in part to the rejection of new rearrangements (Rhineland-Palatinate, Lower Saxony, Baden-Wuerttemberg, Berlin, Brandenburg).
Not a few political decisions have, by the way, already been taken anticipating an alleged citizens’ will in order to avoid “impending” votes. Examples from some more recent times: A few years ago, Cologne’s City Council decided against the construction of a new playhouse; in 2018, the newly elected NRW State Government decided to reintroduce the nine-year grammar school, in each case before the collected signatures were even submitted. This is not a glorious chapter with regard to the democratic behaviour of the elected representatives, because it just hindered the sovereign to vote.

Some perspectives

Direct democratic traditions in Germany do actually exist, but are expandable. The quorums should be lowered at state and municipal level. An admission quorum of about 5% of the voters may be justified and already requires a broad discussion between the initiators and their fellow citizens on the subject. But if an initiative is authorised, no minimum number of “yes” votes should be required. Rather, there should be a neutral official support for the democratically legitimate cause in order to make it known. It is the freedom of everyone to participate or not.
At the federal level, a simple amendment to the Constitution and an implementing law based on it must create the possibility of direct voting. Then the citizens could also vote on the matters for which the Federation is responsible according to Art. 73 of the Constitution. For example, issues relating to foreign policy and foreign trade, including war operations and arms trade! Proposals for a simple amendment of the Constitution Law have been around for a long time3, but they must be developed further. What is also important is a perspective that has been missing so far:
The “Mehr Demokratie” (More Democracy) association, which has been working for many years with concrete proposals for conducting votes at federal level, also does not support citizens being able to vote, for example, on fiscal or direct financial issues. But why shouldn’t citizens be allowed to vote at all levels on all matters on which their MPs also decide? It is claimed that a citizen is not competent to decide. A glance at Switzerland, where this is possible, proves the opposite.4 Even a glance at the behaviour of our MPs would suffice to give rise to quite some doubts on the professional competence of those entitled to vote so far.
Equally important is the fact that public debate often lacks the perspective that referendums cannot be a substitute for legislative parliamentary work. Votes are always yes-no decisions on a more or less narrowly defined subject, which often influences other subjects that are not covered by this vote. And it is by no means the case that the people only have one opinion on a subject that they express unequivocally when asked. The history of agricultural legislation in Switzerland is a good example of this.5 It shows how voting initiatives by small farmers, large farmers, environmentalists, animal rights activists, etc., lead into different directions and had by no means the same effect on the same subject. They required mediation for years and decades. Such mediations must be carried out by parliamentarians in cooperation with the initiators of the vote. In a political culture such as Switzerland, there is (even) greater openness on all sides than has been the case here (so far). In this field our political culture, which loves disputes so much, still has lot to learn on all sides. Such debates would be an important element of popular education.
Voting, as in democracy in general, is not about the final victory of a majority over a minority (or even an active minority over a silent majority); it is not even about whether “the will of the people” is implemented or suppressed; it is about rules and institutions with which fair mediations and ultimately decisions can be found for the various opinions and interests of the people. And it is about the participation of the citizens.
We must make use of the opportunities already available to us as a historical heritage and, where appropriate and possible, improve them. For this we need not only wise insights from an analytical elevated perspective, which sometimes only confirm the maliciousness of the rulers or the stupidity of the ruled, but also the will to act here and now. That is our task as citizens and sovereigns. To voluntarily and without necessity assume responsibility for the shaping of the community in the sense of the common good is an intellectual achievement that requires above all historical education. And it is an empathetic achievement that requires a shared sense of community (Gemeinschaftsgefühl). Unfortunately, our constitutional practice has favoured political personnel with rather different motives. Therefore, to claim the end of our democracy is a convenient “explanation” for not participating in the “system”, but this is utterly wrong. The end will only be reached if we do not make use of what we have and can develop further.
Institutional structures and legal regulations that facilitate the participation of citizens in political life will also promote this participation. And a more direct participation of citizens in political life will complicate tendencies among political actors who are not oriented towards the common good and the honest mediation of various interests. That is the perspective for a sustainable democracy.    •

1    An example for this is: Mausfeld, Rainer. Phänomene eines “Tiefen Staates” als Erscheinungsbild des autoritären Kapitalismus, in: Mies, Wernicke (Hg.). Fassadendemokratie und tiefer Staat, Wien 2017
2    Rudzio, Wolfgang. Das politische System der Bundesrepublik Deutschland. Wiesbaden 2019, p. 295
3    www.mehr-demokratie.de/gesetzentwurf/
4    Wüthrich, Werner, www.zeit-fragen.ch/en/numbers/2017/no-27-14-november-2017/taxes-and-finances-in-switzerland-determined-by-the-people.html
5    Wüthrich, Werner, www.zeit-fragen.ch/en/numbers/2017/no-2223-23-september-2017/agriculture-and-direct-democracy-part-4.html
(Translation Current Concerns)