24 September 2021

After the Union

Let’s assume that on Sunday things turn out as the polls predict: At the German general elections, the conservative twin parties CDU/CSU lose big-time. They end up behind the Social Democrats with just 21, 22% of the vote, an unprecedented defeat of historic dimensions, their party leader and candidate for Chancellor Armin Laschet resigns from all offices immediately. Chancellorship, ministries, power on the federal, European and global level: all gone. The Christlich-Demokratische Union, this union of incompatibles, held together but by the joint will to power and their self-perception as representatives of a majority of normal and reasonable people – suddenly with hardly any clout at all. Nothing more to distribute. Nothing more to offer to their functionaries, deputies, members and voters except feeble rants against those who now wield power in Berlin and in Brussels and in the G7 summit and determine the flow of public funds in the budget committee. No more district leaders appeasing angry business owners: no worries, we’ll have this sorted, let me make some phone calls. No more MPs boasting about the millions in Federal funding they have secured for their local communities. All that is gone.

What will that do to Angela Merkel’s CDU?

Counter question: what do I care? Am I the CDU? What do I have to make the fate of this party, a private-law association to which I do not belong which pursues political interests which are not mine, my problem?

It is one of the peculiarities of the German constitutional system that it does not allow the internal life of political parties to be solely their private affair. They are not just associations of private citizens. They have a public task to fulfil for democracy. They are responsible for ensuring that the „will of the people“, from which all state power emanates, can be freely formed. They have to organise this will-formation in such a way that it is the will of the organised and not of the organisers that forms within them: „from the bottom up„, as the Federal Constitutional Court put it as early as 1952 when it banned a Nazi party whose internal organisation was oriented towards the „Führerprinzip“ of the Nazi Party instead of „democratic principles“, as required by the Grundgesetz.

This is all part of the constitutional catechism of the old Federal Republic; we pray it all by heart, faithfully or not. But what, one might be tempted to ask, does this still have to do with reality? Who is still organised in associations at all? The membership of most parties, and of the Union parties in particular, has been shrinking dramatically for many years, and anyone who has ever attended a CDU party conference would have to be anchored very firmly in their faith not to be tempted by ridicule and doubt when reciting the doctrine of „bottom-up will formation“.

We live in the 21st century. We are followers, not members. We prefer liking to voting. We like this and we like that, always just for now, with little commitment but ultimately remarkably loyal, as it is somehow always the same few people whom we bestow our likes upon and who influence us back in return, so that a cycle closes that has little to do with „bottom-up decision-making“ and all the more to do with plebiscitary rule: everyone has a say and everyone is heard, but somehow the actual follower power is always wielded by a small number of influencers whom you’d better not get on the wrong side of.

The Kurz model

The pioneer of this plebiscitary follower democracy is Austrian Chancellor Sebastian Kurz. In 2017, his Österreichische Volkspartei (ÖVP, Austrian People’s Party) was in a situation not unlike the CDU’s today, having worn out a whole list of party leaders, seemingly stuck immovably at 21, 22 %, desperate, divided, doomed and without hope, a sad, grey affair of balding tie-wearers who could make less and less plausible why they of all people should be in power in the first place. Along came 30-year-old Kurz, the „saviour“, the black ÖVP turned into the turquoise „List Sebastian Kurz – the New People’s Party“, and its new namesake became Federal Chancellor.

The old ÖVP, like the German CDU in its very name, was a union in the literal sense of the term, an amalgamation of opposites for the purpose of jointly consolidating the respective self-image that one represented the normal, reasonable centre of society. It rested on three powerful confederations („Bünde„) of farmers, workers, and business people, and whoever wanted to lead the party had to rise through the ranks of one of these three confederations first. Kurz, the previous leader of the much less powerful youth organisation, did not. He had the Bünde come to him. And before he accepted from their hands the party leadership, he stated his terms. One of his principal demands that he was granted the power to decide who runs for general and EP elections on the ÖVP list, and a veto for all candidates at regional elections. He got what he wanted. The by-laws of the „New People’s Party“ stipulates that the decision who runs is exclusively for the Chairman to make.

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In Germany, a party by-law to this effect would be unthinkable. Under German electoral law, it is the party members or their delegates who decide on the nomination of candidates (§ 27 para. 5 in conjunction with § 21 para. 1 BWahlG). Anyone who tried to change this would in all likelihood have to face a rather harsh slap-down by the Federal Constitutional Court.

Factually, it might seem as not that big a deal: Most parties decide on their lists of candidates quite in the Kurz way, after all. If delegates fill the lists with candidates who run against the will of the party leader, then he or she probably won’t remain party leader for long, which is not per se undemocratic, but a matter of political message consistency. Nevertheless, in Germany, unlike in Austria, the membership „base“ remains a factor that any wannabe Kurz would have to reckon with. In addition, electoral lists for the Bundestag elections are drawn up at the state level, which allows for some degree of intra-party vertical separation of powers and ensures that control over access to power will be exercised only partially by the 17 state party leaders and only indirectly by the federal party leader. Another factor is the existence of constituency candidates: They are elected on the district level, where local party officials often have their own minds about who should represent them.

This might complicate the situation for a potential Laschet successor with alleged populist leanings. Such as, say, Minister of Health Jens Spahn.

But what about Markus Söder, the Bavarian populist supremo?

He is the chairman of the CSU which, unlike the CDU, has no state-level party associations because it only exists in one state by design: Bavaria. As a resident of the state of North Rhine Westphalia, you can become a member of the CSU, but you have to join a specific regional association to become a member of a party as a matter of German party law, and there are no CSU associations in North Rhine Westphalia.

There is, however, something else: Since 2019, the CSU offers so-called „online membership“ to all those who want to „participate in the CSU without being tied to a specific location“. Technically speaking, this is a bit of a fraud: this so-called „online membership“ comes without the right to vote, to be elected or to make motions at party assemblies. What these „online members“ do have is the „right to be informed by party organs and elected representatives in all areas. In particular, they can participate through discussions and online polls within the framework of digital participation“ (§ 6 para. 9 of the CSU by-laws).

They are, in other words, followers.

Fantastic, isn’t it? A paying membership that will never disturb the party leader’s circles, but is always available to give his wishes plebiscitary thrust with a well-timed „online poll“ if he so wishes. But the offer looks also attractive for those who buy it. Markus Söder listens to us! We are heard! We have a share in his power! More so, perhaps, than through our regular membership of the North Rhine Westphalia CDU! If enough North Rhine Westphalian CDU members will join the CSU as „online members“, that might give Markus Söder considerable clout over the North Rhine Westphalia CDU, perhaps even paving the way for a German „List Markus Söder – the New People’s Party“, completely informally, bypassing all established party structures and rather difficult to challenge under party and constitutional law.

All just horror stories? Perhaps. Let’s hope so.

If not? In four years, maybe sooner, there will be another election in Germany. After that: see here.

Thanks to Sven Jürgensen and Christian Neumeier for valuable input!

The week on Verfassungsblog

We had to work through the whole weekend, but we did it: The first episode of our new podcast came out in time, one week before the vote, and we are exhausted but content. In the three-part episode, we explore the many fascinating legal questions raised by the upcoming referendum on the socialisation of large residential real-estate corporations in Berlin. If you haven’t had the chance yet, take a listen. And if you like what we’re doing, please support us on Steady. Only with your help can we finance the project in the long term.

ANNA-KATHARINA KÖNIG has also examined the Berlin referendum. In her view, socialisation in the sense of Article 15 of the Grundgesetz is principally about keeping the distribution mechanisms of private land ownership contestable by a democratic majority.

The next referendum in Berlin may be on the horizon: The initiative „Volksentscheid Berlin autofrei“ (Berlin car-free) wants to free a large part of Berlin from private car traffic and thus create the largest car-free zone in the world. Recently, the initiative submitted the necessary 20,000 signatures to the Berlin Senate and thus successfully cleared the first hurdle on the way to the referendum. CHARLOTTE HEPPNER clarifies for us what the legal implications are.

The search of SPD chancellor candidate Olaf Scholz’s federal Ministry of Finance in the middle of the election campaign has made a big stir, and last week Joachim Wieland had criticized this decision harshly. KLAUS FERDINAND GÄRDITZ takes the opposite position: Wieland’s arguments are not convincing, he says, and in particular a ministry cannot invoke protection of fundamental rights.

Back to Austria: an easily overlooked fact is that the Kurz government also includes the Greens. They were decisively elected for two core issues: climate protection and human rights. But in the coalition with Kurz and his „New People’s Party“, they support a government policy that stands in blatant contrast to these promises when it comes to human rights of migrants. SIEGLINDE ROSENBERGER looks at the political and institutional reasons for this in the Austrian system of government.

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France is celebrating the 40th anniversary of the abolition of the death penalty. But in Europe, this fundamental human rights achievement is in danger of creeping erosion, finds CHARLOTTE SCHMITT-LEONARDY.

On 2 September 2021, the ECJ confirmed in its EPSU ruling the European Commission’s competence to interfere in social collective bargaining in the European Union. FILIP DORSSEMONT and PIETER-AUGUSTIJN VAN MALLEGHEM are not convinced by the ECJ’s reasoning. They argue that the ruling represents a dark turning point for EU labour law, as it reduces the autonomy of the social partners to an empty shell.

So much for this week. All the best to you, stay safe and healthy, support us on Steady and/or Paypal, and see you next week!

Max Steinbeis


SUGGESTED CITATION  Steinbeis, Maximilian: After the Union, VerfBlog, 2021/9/24, https://verfassungsblog.de/after-the-union/, DOI: 10.17176/20210925-085431-0.

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