Ending Diversity without Debate
Polish-style broadcasting in Thuringia, Saxony and Brandenburg?
The relationship between populist and radical right-wing parties and the media is an odd one. While best friends if the latter can be instrumentalized to spread the party’s own worldviews and slogans, an independent, critical media is their worst enemy. Germany’s public broadcasters are certainly not close to the AfD. It is thus unsurprising that both the federal AfD and the Thuringian AfD are calling for the state broadcasting agreements to be terminated and for the current system to be replaced by a completely new concept of public service broadcasting. Thuringia’s state chairman Björn Höcke recently confirmed the plans in a speech on November 6, 2023.
Their vision could become a reality this year in some federal states, given that current forecasts suggest the AfD might become the strongest force in the state elections in Thuringia, Saxony and Brandenburg in September. If the AfD were to furnish these states’ prime ministers, their exit from public broadcasting would be likely, even with a coalition government. According to the constitutions of the three federal states, the prime minister can single-handedly terminate state broadcasting agreements without this having been discussed or voted on in parliament. How can that be? And what could be done?
Media law as a state matter
Media law is a matter of state law. The federal government has no authority to enact media laws or to operate its own broadcasting corporation. Konrad Adenauer himself learned this lesson, after the first broadcasting decision of the Federal Constitutional Court in 1961 obstructed his attempt to launch “Deutschland-Fernsehen”. Today, this competence allocation to the states remains in tension with the interest in uniform nationwide broadcasters which allow for the creation of a nationwide audience, the cost-effective production of programs and the employment of correspondents in the capital and around the world.
This is why a traditional but comparatively unknown legal tool is used: the state treaty between federal states. Comparable to its “big brother”, the international treaty, it enables the federal states to cooperate on media legislation and thus create legal unity across federal states without the Bundestag and Bundesrat. This creates a legal form of regulation that the Basic Law only mentions in passing: laws that apply uniformly in several federal states or even nationwide at the level of federal state law. ARD and ZDF are both operated on the basis of state treaties that all 16 federal states have concluded with each other. But states regularly operate state broadcasting bilaterally or trilaterally; Saxony and Thuringia with Saxony-Anhalt in MDR, Brandenburg with Berlin in rbb.
While state legislation is ordinarily submitted to parliament, where it is debated and amended in specialist committees and plenary sessions, sometimes over several readings under media scrutiny, the procedure for state treaties is different. Here, state governments negotiate the legal text. Parliament is restricted to approving or rejecting the negotiated text as a whole – substantive changes are taboo. Instead, the search for cross-party compromises, which otherwise dominates everyday parliamentary life, is to take place at executive level, with the participating state governments having to find mutually satisfactory solutions. If it were not two, three or even 16 governments negotiating a legal text, but the same number of parliaments, the practice of state treaties dating back to the German Empire would, in the opinion of many, no longer be feasible.
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Hier geht’s zur Präsenzanmeldung.
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Bypassing the People’s Representatives
Parliament’s diminished role continues even after the state treaties have been concluded, posing a real risk to media pluralism and diversity. If a prime minister is elected who does not value parliamentary participation and public discussion of their decisions, they can end the state’s participation in ARD, ZDF and the state broadcaster with one signature – without any input by elected parliamentarians.
State treaties can be terminated by any of the participating states. The individual treaties specify deadlines by which the termination must be declared. The respective state constitution determines both who and how a treaty can be terminated on behalf of the state. In Hamburg and North Rhine-Westphalia, e.g., it is the state government (the Senate) as a collegial body. This is not the case in Thuringia, Saxony and Brandenburg. Here, only the prime minister represents the state externally, with treaty termination being a classic case of such external action. A potential AfD prime minister in one of these states could thus decide on their own to terminate the state contracts with ARD, ZDF, MDR and rbb.
A decision by the Federal Administrative Court confirmed that state parliaments need not consent to the termination of state treaties, while also indicating how we could strengthen the rights of the state parliaments in the future. In 1978, following disputes with Hamburg, the Schleswig-Holstein state government terminated the NDR state treaty without involving the state parliament. The Court reasoned that according to the wording of the Schleswig-Holstein state constitution, the state parliament only has to approve the conclusion, not the termination, of state treaties. Furthermore, the parliament is not in need of protection if the government terminates a state treaty, as this means that the area previously regulated by the treaty is returned to the state and thus to the parliament for re-regulation. This reasoning is certainly open to challenge, considering that the termination of a treaty affects the legal situation just as much as the conclusion of such a treaty. Conventional laws can only be repealed by law, i.e. by parliament, for good reason. However, the decision remains good law and the constitutions in question here contain precisely the provision on which the Federal Administrative Court ruled: the consent of state parliaments is not required for the purpose of terminating state treaties.
Far-reaching Consequences
Termination of the state treaties for ARD, ZDF, MDR and rbb would have drastic consequences both for the states’ populations and the media landscape. If Thuringia were to terminate, MDR would continue in the other federal states; if Thuringia and Saxony were to terminate, the broadcaster would be dissolved. As rbb is only operated by two federal states, it would also be dissolved if Brandenburg were to terminate its contract. With regard to nationwide broadcasting by ARD and ZDF, funding would be severely impaired, committees would have to be re-staffed and employees would have to be dismissed. As per the Federal Administrative Court’s ruling, the broadcasters would also no longer be entitled to continue their broadcasting operations in the territory of the terminating state. It is unclear whether their digital live streams would also have to be restricted for residents of the terminating state. What is clear, however, is that public service broadcasting would be significantly restricted with three quick signatures from one person – for ARD, ZDF and Landesrundfunk.
Public service broadcasting, which – for all its weaknesses – is controlled by parliament, could be replaced by private broadcasters that are directly influenced by the state government. At the meeting of right-wing extremists uncovered by CORRECTIV, the establishment of a digital radio and TV station was discussed alongside the mass expulsion of people with a migration background. An entrepreneur close to the AfD has already attempted to create a far-right media platform by purchasing a music channel. A government radio station could be created, following the example of the Polish PiS party. The latter’s massive interventions in the media sector led to party-affiliated TV stations filling around 80 percent of political reporting with government content. Such plans would be highly questionable under constitutional law and would in all probability be overturned by the Constitutional Court of the respective state or the Federal Constitutional Court. However, time would necessarily pass before any such decision and some damage would already be done.
What Can Be Done?
A minimal change to state constitutions would be sufficient to prevent this scenario from occurring. The regulation on state treaties – for example in Thuringia in Art. 77 Para. 2 – can be amended to the effect that “the conclusion and termination of state treaties require the approval of the state parliament”.
While elected prime ministers should be able to influence the policies of their state, sometimes quickly, in almost all other political areas they also have to discuss their decisions with the rest of the state government and, above all, the state parliament. Because media law is regulated in state treaties, it is particularly susceptible to short-term influence by the prime minister. The proposed constitutional amendment would ensure that the annulment of state treaties must be decided by the state parliament in all cases, allowing parliament to provide an important check on government. Notably, while there has been a tendency to allow broad public discussion of state media agreements outside of parliament, such publicity is not guaranteed with a prime minister hostile to this process. A defensive democracy can neither rely on the good will of the actors involved, nor close its eyes to the worst case scenario.
A prime minister could still put together a majority in parliament. However, the history of coalition governments shows that this often leads to discussions within the parliamentary groups supporting the government, or at least to criticism from the opposition – and subsequently to broader public debates. In a democracy, parliament’s role is not limited to lawmaking. Parliamentary discussions render different positions visible, make their deliberations comprehensible for voters and counteract impressions that decisions are being made over their heads. In the case of state treaties, hastily taken actions by the government can thereby be brought to light before it is too late.
Imagine a prime minister proudly holding their signature under the termination of state treaties in front of the cameras of the media whose activities they want to restrict. This possibility alone should be reason to strengthen parliament’s role by adopting the proposed amendment.
The Week on Verfassungsblog
… summarized by Anja Bossow:
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Nicht in Berlin? Hier findest du eine Übersicht über Demonstrationen gegen Rechts in ganz Deutschland.
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Following the secret meeting of right-wing radicals and AfD politicians that CORRECTIV revealed, the debate on how to cabin the threat to democracy these actors pose has propelled a previously overlooked provision of the Basic Law into the spotlight. Article 18 allows the Federal Constitutional Court to declare the forfeiture of certain constitutional rights where these have been abused to attack the liberal-democratic basic order. CHRISTIAN VON COELLN details why proposals to invoke Article 18 to prevent the AfD from gaining more power might not be adequately thought through, while KOLJA EIGLER and TIMO SEWTZ argue that the risks of utilizing Article 18 might outweigh its benefits.
The Bundestag is currently debating its second budget law. The draft text envisions, amongst other things, harsher sanctions for individuals who evince “persistent refusal to take up reasonable work.” ANDREA KIESSLING is unsure whether this current proposal can pass constitutional muster and explains three problems with this plan.
In Israel, since Hamas’ attack on October 7, and the war between Israel and Gaza that ensued, constraints on speech have become more widespread in Israel. ADAM SHINAR details the formal and informal ways in which speech is being curtailed and assesses its impact on public discourse.
Towards the end of the week, all eyes were on the International Court of Justice (ICJ). On January 26, it issued provisional measures in South Africa’s Genocide Case. Just one day earlier, ITAMAR MANN showed how both the proceedings themselves and the provisional measures would influence future decisions of the Israeli government. With the ICJ proceeding, Israel is now subject to international oversight, leading to an evolving mechanism of “counter-genocidal governance.”
KHALED EL MAHMOUD, meanwhile, considered Germany’s intention to intervene as a third party in favour of Israel. Given Germany’s previous interventions in the similar proceedings against Myanmar (and Russia), he assesses whether Germany can abandon the purposive construction of Article II of the Genocide Convention it previously supported in favour of a more restrictive one.
At the EU level, a draft text of the AI Act expected for the end of January is raising concerns. The Act’s negotiations had been characterized by the struggle between the different interest groups. While the EP had advocated for basic and individual rights aspects of regulation, the Council focused on economic promotion and national security. ANDREAS MÜLLER details why the latter aspects now seem to dominate at the expense of the former.
And finally, the European Union has been trying to protect Hungarian democracy and the rule of law with a multi-faceted approach, and yet, it has little to show for, with Orban’s regime remaining staunchly autocratic. ZOLTÁN SZENTE asks why the EU’s approach has remained ineffective and offers four potential reasons.
That’s all for this week – take care.