Trunks, Grass, Creepers

Oral hearing at the Federal Constitutional Court. For a quarter of a century, this has been a constant in my journalistic life. I haven’t been there for a while, because of Covid and lack of time and other reasons, but this week I went. I’m quite fond of it. The times change, the topics, the people, the weather, but the ritual, if at all, changes but imperceptibly. The same black limousines in the Schlosspark. The same friendly, mustached federal police officer at the entrance who hands me my press badge. In the foyer, on the wall, the same portraits of former members of the Court, only their row a third longer by now. The same beige carpet, the same Rechtsreferendare, the same dark suits. In the press room, the familiar colleagues, grizzled like myself. The same two rows of chairs up on the press gallery, the same photographers and cameramen downstairs in the auditorium. The murmuring dies down: Das Bundesverfassungsgericht! Didn’t they always used to say: All rise? They don’t these days, but we rise anyway, we know the ritual. The door opens, the red robes parade to their seats, their red caps are placed on the table, everyone sits down and the proceedings begin.

On this day, there are only seven judges on the bench, not eight as usual. Judge Maidowski is missing. The regular terms of judges Huber and Hermanns end in November. The Senate will have to hurry with the decision. They might get into a problem with the necessary quorum (§ 15 BVerfGG), and then the whole case would fall apart.

What is this about? It’s about an organisation called Desiderius Erasmus Stiftung (DES). No one knows what that is, and that is precisely the problem. The DES would like to be for the AfD what the Konrad Adenauer Stiftung is for the CDU and the Friedrich Ebert Stiftung for the SPD, one of those powerful, loaded political foundations which complement the German party system in a very unique way. But it can’t, poor DES, because unlike those, it doesn’t get any money from the federal budget and therefore, unlike them, it can’t plaster Germany and the whole world with conferences and policy papers and scholarships and offices abroad. Can that be constitutional? This is the question this hearing is about.

The interesting thing is that the DES is not even the plaintiff in this case. The AfD is. It sees its own rights as a party violated by the Bundestag’s failure to fund the DES. That is what makes these case so exciting, not only in terms of constitutional law, but also in terms of constitutional policy.

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The parties and the foundations they recognise as close, according to a FCC decision from 1986, are to be kept strictly separate from each other despite their proximity. The parties compete for majorities and power, and the state must not intervene in favour of one party and to the detriment of the other, for example by financing a giant foundation for one of them and not for the other. But it doesn’t, according to the Federal Constitutional Court at the time: the money is for the foundations, not for the parties, to which they are close but from which they must keep their distance at the same time. It must not be used for election campaigns or other partisan purposes, but for political education and policy advice, which is in principle open to all, even if not used by all. As long as the state takes “appropriate account of all lasting, significant political fundamental trends in the Federal Republic of Germany”, it is okay from the point of view of the principle of equality if not every party gets its foundation. For the foundations are not party foundations, but lasting-significant-political-fundamental-trend foundations. The Konrad Adenauer Stiftung is the foundation of Christian Democracy, not of the CDU, the Friedrich Ebert Stiftung is that of Social Democracy, not of the SPD. Foundations and parties are, so to speak, different branches of the same trunk, and because not everything that is growing out there is a trunk, the unequal treatment of trunks and mere grass is not discrimination but on the contrary a requirement of equality.

Since 1986, the growth of the party landscape has changed drastically. There are seven parties in the Bundestag, and it is no longer easy at all to distinguish which branch is from which trunk. The foundation landscape has also changed. Not only have the sums with which political foundations are endowed grown exorbitantly. The expectation that parties and foundations work on separate accounts, so to speak, seems downright quixotic, to quote political scientist Michael Koß of the Leuphana University of Lüneburg who was heard as an expert. Even if the foundations keep their distance to the election campaign in the narrow sense, they are nevertheless entirely dependent on the parties they are close to and, with all their money, useful to them in a way that may be difficult to measure but at any rate has an effect on political competition (this is what judge-rapporteur Müller in particular kept coming back to). And thus on the parties’ right to equal opportunity. A party can sue for this in Karlsruhe. The Senate is now considering the acknowledgement of a constitutional right of political parties to “equality-based foundation funding”.

The Senate also seems to be considering the possibility of taking up an old demand of constitutional policy and instructing the legislature to regulate the standards and amount of foundation funding by means of a proper law of its own. So far, the legal basis for funding is the budget law, which implies that in the budget committee, on the basis of a “joint declaration” of the six funded foundations, the parties work out who gets how much, largely in the absence of the public (Müller: “This smells like a cartel!”).

What would that mean, “equality-based foundation funding”? From the AfD’s point of view, it is clear what that would mean: we want what they have! We also want hundreds of millions to “cultivate the milieu” and pamper our supporters with lavish conferences. We want to attract scholarship students who will go on to glorious careers in and out of politics. We want to influence public discourse with think tank papers. We want to build a dense international network of allies and like-minded people through foreign offices. All paid for by the state.

From the perspective of the Basic Law, however, this is far from clear. Theoretically, equality can also be achieved by reducing the competition-distorting pampering of the other foundations. Most of all, however, it does not seem at all clear to me that material criteria cannot be found to justify unequal treatment of the AfD and its foundation. The “lasting, significant political fundamental trend” that has entered the Bundestag with the AfD is by no means called conservatism or national liberalism or whatever other respectability cloak this party would like to borrow from the fund of continental European party history. It is called authoritarian populism. And its characteristic is that it parasitically sits on the institutions of the liberal democratic constitution in order to suck them dry until they collapse. Drastic illustrations of this have long been available in numerous countries where the AfD-DES would like to maintain lavishly staffed foreign offices in the future.

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The AfD is no longer just a blade of grass, admittedly. Since its re-entry into the Bundestag, it has had to be counted among the perennial plants. But it is not a trunk either. It is a creeper. It is neither willing nor able to develop its own concepts of a just society, but climbs up on those of the competition in order to smother them in a web of resentment, lies and victim blaming. A liberal democracy that accepts this as one of its “lasting, significant political fundamental trends” soon ceases to be one.

Liberal democracy arose out of the conflict between conservatives, liberals and socialists, and by means of the liberal democratic constitution it has been able to make this conflict permanent in a productive way. The conflict of their opposing interests and preferences remains in constant motion, majorities, coalitions, crises and debates pop up and go, because and insofar as the constitution with its institutions remains stable and constant in the meantime. Just like the beige, glass building in Karlsruhe, where for so many decades the major constitutional issues have been negotiated year in and year out in a minimally varied ritual. Das Bundesverfassungsgericht! All rise! God forbid that one day soon the AfD, as a matter of equal opportunity, should be able to lay claim to appointments to judgeships there….

The week on Verfassungsblog

… summarized by PAULINE SPATZ:

The AfD could win the dispute over the funding of the Desiderius Erasmus Foundation Foundation before the Federal Constitutional Court. ANTJE NEELEN thinks that this could have been avoided by a timely and sufficient “foundation law“.

The change of the offence of incitement of the people in § 130 StGB is currently causing a stir. MICHAEL KUBICIEL sees little to be scandalized about in the rather symbolic change..

Universities are not an arena for the political battle of opinions, but places of scientific research and teaching. KLAUS FERDINAND GÄRDITZ on academic freedom as distinct from freedom of expression.

JOHANNES SIEGEL takes the ECtHR decision Basu v. Germany as an opportunity to call for both a shift in the burden of proof and independent investigative bodies for racial profiling cases.

CHRISTOPH HERRMANN explains why it would be possible under investment control law to prohibit the sale of terminal shares in the Port of Hamburg to the Chinese shipping company COSCO.

JELENA VON ACHENBACH comments on the Federal Constitutional Court’s ruling on the Federal Government’s information obligations towards Parliament in matters of EU security policy.

Frontex has been under scrutiny for its involvement in Human Rights violations, the European Parliament has been able to do little about it. LAURA SALZANO suggests that national parliaments step up their involvement.

ECJ judge THOMAS VON DANWITZ comments on the fundamental question of the allocation and distribution of judicial power in the EU.

RAPHAEL OIDTMANN discusses the ECtHR judgement in the case of Mørck Jensen v. Denmark, regarding a Danish national traveling to an active conflict zone.

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This week, states were negotiating a UN treaty on business and human rights in Geneva. CLAIRE METHVEN O’BRIEN & DANIEL SCHÖNFELDER outline why a new proposal from Ecuador could be a defining moment for the process which should be seized.

In the third part of their analysis on the Hungarian government’s anti-corruption framework, KIM LANE SCHEPPELE, GÁBOR MÉSZÁROS & PETRA BÁRD look at the proposed judicial review of prosecutorial decisions.

MAXIMILIAN BERTAMINI & THOMAS FELTES explain why Russia, despite its exclusion from the Council of Europe, is still bound by the European Convention against Torture and should tolerate visits by the Anti-Torture Committee.

SHPETIM BAJRAMI & KATIA HAMANN comment on the effects of closing our eyes to breaches of fundamental international norms in the light of the human rights violations in Iran.

MARK DAWSON looks at the constitutional dimension of the “political meltdown” in the United Kingdom, arguing that it is also a constitutional one.

JACOB VAN DE KERKHOF & CATALINA GOANTA explore the legality of politicians paying for fake followers, likes and comments under the DSA, UCPD and ad transparency policies.

Our new blog debate in cooperation with the Institute for German and International Party Law and Party Research at Heinrich Heine University Düsseldorf and the Foundation for Science and Democracy on electoral scrutiny in the audit is online. SOPHIE SCHÖNBERGER, WINFRIED KLUTH, DANIEL HELLMANN, FRANK BÄTGE und JAKOB SCHEMMEL explore the question of whether our approach to electoral scrutiny needs to change, with more contributions to follow.

That’s all for now. All the best, and see you next week!

Max Steinbeis