17 March 2023

Useful Idiots

Alexander Dobrindt, the leader of the Bavarian CSU in the German Bundestag, gave a remarkable parliamentary speech today. “A great villainy” and an “attempt to manipulate electoral law” was taking place, with the aim of “cementing the traffic-light coalition’s claim to power”. “All over Europe, far-right parties are trying to destroy parliamentarism from within”, he continued, pointing at the AfD with an outstretched arm. If the word “useful idiots” was appropriate, then with respect to the governing coalition.

I would disagree with him on one point: It is not the AfD I am most afraid of. They are rather unlikely to win any federal elections in the near future. I’m much more concerned about the CDU/CSU.

This morning, the German Bundestag passed with the votes of the SPD/FDP/Greens traffic-light coalition an electoral law reform with a plausible claim to finally meet the objections the Federal Constitutional Court made ten years ago. Many can hardly remember how long this horribly convoluted and tedious dispute about Direkt-, Überhang-, and Ausgleichsmandate, voting weights, personal and proportional representation has been going on and how many attempts to lead it to a satisfactory and constitutional result had already failed. There was a lot of talk in the Bundestag today about parliamentary self-respect and the ability to reform and the Gordian knot that has now finally been successfully cut. Doesn’t that Gordian knot have a name? Is it not called CSU? Wasn’t it the Bavarian regional party that, in its stubborn insistence on its undiminished grip on the 46 Bavarian direct mandates, had for so long prevented any progress? Gordian knots, so the implication of the figure of speech, exist to be cut, and that is pretty much what threatens to happen to the CSU in the not unlikely event that it fails to surpass the nationwide 5% threshold in one of the next elections, as the Grundmandatsklausel, that used to guarantee it entry into the Bundestag as long as it wins at least three direct mandates, is now abolished.

However, the knot would not be so Gordian if it had not been tightened in decades of political practice in the Federal Republic. The CSU, whether one likes it or not, is rooted deeply in the Bavarian political ground, and using the electoral law as a rake to eradicate it is an act of political violence. From a purely constitutional point of view, it may seem justifiable to say goodbye to the Grundmandatsklausel along with the personal election in the constituency it is linked to. But who is to actually believe that nothing but the pursuit of maximum electoral consistency was the motive and purpose of its abolishment? Who is to find it plausible that the elimination of the CSU on the federal level is just a regrettable epiphenomenon and not the aim of the whole maneuver in the first place? And I haven’t even mentioned the Left Party, the SPD’s old nemesis, who will be in even greater danger of elimination if its few remaining direct mandates in East Germany don’t count any more.

If one looks around the world, one is struck by how often the hostile takeover of the liberal democratic constitution from the right has not begun with a hostile takeover from the right, but first with loud lamentations from the right about a hostile takeover from the left. If the right succeeds in making this plausible, the possibilities for the left to defend itself discursively shrink dramatically. When Ronald Reagan nominated an ultra-conservative hardliner for a Supreme Court judgeship in 1987 instead of a middle-of-the-road candidate acceptable across the aisle, the Democratic majority in the Senate had little choice but to make a scandal out of it and deny the president the confirmation of his nominee. Since then, the election of judges has increasingly become a super-controversial matter of sheer majoritarian power, with both sides pushing the limits of the constitution to get as much for themselves as they could possibly get away with, which benefits the right much more than the left, who on top of it keeps being told: It was you who started it.

Or Poland. Even before the subjugation of the Supreme Court and the National Council of Justice, even before the destruction of the Constitutional Tribunal and the open breach of the constitution by the PiS government, even before the PiS returned to power in 2015, the old Civic Platform majority had quickly filled five constitutional judges’ posts with its people at the last instant. This was justifiable for three of these five posts, as the Constitutional Tribunal later found, but for the other two it wasn’t. Not only did this manoeuvre not help the court at all in the end, it even made the PiS’ job easier. Whatever you accuse us of, they only had to say, it was you who started it.


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If the CDU/CSU returns to power one day possibly not too far away, I suppose it is safe to assume that they will use it and set about changing the electoral law in their favour with great determination. Let’s say: a Hungarian-style Grabenwahlrecht. What are you complaining about, they will then say to the horrified traffic-light parties. It was you who started it.

The one thing I find truly unforgivable is that the traffic-light coalition has put the CSU, of all parties, in the position of staging itself as the victim of sinister anti-democratic machinations. Depending on the outcome of the next Bavarian state elections, CSU leader Markus Söder may well become the Union’s next candidate for chancellor. I would very much appreciate if his competitors were able to take him to task when it comes to his constitutional policies. That has become somewhat difficult now, hasn’t it? And, as far as I can see, without any urgent need at all. The US Democrats in 1987, well, what were they supposed to do, obediently elect Robert Bork to the Supreme Court? The Polish Civic Platform in 2015 can perhaps to some extent be given credit for wanting to protect the constitution, even if in a democratically and constitutionally more than problematic manner. But the traffic-light coalition? What can be said in their defence, apart from the thrillingly favourable opportunity to kill two out of four opposition birds with one stone?

There are good reasons why, until not so long ago, a stable constitutional convention was in place to ensure that changes to electoral law are decided by consensus wherever possible, as opposed to being forced by the majority on the minority. This convention was already violated by the CDU/CSU/FDP coalition in 2011 which pushed through its amendments to the Federal Electoral Act against the objections of the opposition. The CDU/CSU/SPD coalition turned this into a trend in 2020. The traffic light coalition has probably now given it the coup-de-grace. A convention that no one adheres to is dead, and I don’t see how it could be brought back to life. That in itself is a great constitutional loss, and the CSU, with its blockage, is as much as anyone to blame for that.

For the constitution to empower and legitimise the majority, the constitution itself must be out of reach for that majority. As far as the Basic Law is concerned, Article 79(2) offers solid protection in that respect. But constitutional law does not only consist of the Basic Law. Most of the technical nuts and bolts of the constitutional setup are regulated in ordinary federal laws, which are not protected by a supermajority requirement from being weaponized by the majority against the minority, only by their technicality and by the aforementioned convention. This is perhaps something we can no longer afford. Perhaps we should prepare to formalise this protection and for these matters – the procedural law of the Federal Constitutional Court is also one of them – provide in the Basic Law that they need to be enacted and amended in a special way, e.g. by a supermajority and/or with a compulsory preliminary review procedure in Karlsruhe. Something similar exists in France, in Spain, (ironically and highly problematically) in Hungary – so this is nothing completely unusual. For the necessary amendment to the Basic Law, the traffic light parties would have to get the CDU/CSU on board. Serves them right.

But perhaps it is already too late for that anyway.

The week on Verfassungsblog

… summarised by PAULA SCHMIETA:

FABIAN MICHL & JOHANNA MITTROP examine the revised version of the draft electoral law reform bill. According to them, the new version responds to criticism of the original draft but also contains elements that raise a lot of issues. UWE VOLKMANN argues that the draft poses a problem of legitimacy. BERND GRZESZICK emphasises that the constituency election “continues to have considerable legal significance” and is “not a mere narrative”. DOMINIK RENNERT considers the abolition of the Grundmandatsklausel be a political error of the highest order which will encounter robust constitutional objections.


Das Deutsche Institut für Menschenrechte, die Nationale Menschenrechtsinstitution Deutschlands sucht eine*n Wissenschaftliche*n Mitarbeiter*in zur Unterstützung der Direktorin. Ihre Aufgaben? Recherchen, Ausarbeiten rechtlicher Analysen, Vorarbeit für Stellungnahmen und Reden. Ihr Profil? Sie haben das 1. Juristische Staatsexamen abgelegt und verfügen über sehr gute Kenntnisse der völkerrechtlichen Menschenrechte, des internationalen und europäischen Menschenrechtsschutzsystems sowie des deutschen Verfassungsrechts. Wir bieten: Sinn, Freude und Entgeltgruppe 13 TVöD (Bund). Die Ausschreibung finden Sie hier.


LIDIA AVERBUKH places the planned judicial reforms in Israel in their historical context. She argues that at stake is not only the reform itself, but the character and identity of the Jewish state. ALON HAREL considers Israel to be “at the edge of a constitutional moment”. He agrees with Averbukh that deeper issues lurk beneath the legalistic debate. Moreover, ALON HAREL & ALON KLEMENT make a proposal on how to address the Israeli Constitutional crisis. Key to their proposition is the separation of short-term substantive issues and longer-term procedural decisions.

In September last year, two German subsidiaries of the Russian state-owned company Rosneft were placed under the trusteeship of the Federal Network Agency. Rosneft then brought actions for annulment before the BVerwG, which were dismissed this week as unfounded. TILL PATRIK HOLTERHUS & SVEN SIEBRECHT provide an overview of the judicial considerations.

WOJCIECH LEWANDOWSKI reviews the recent EGC (interim) decision to suspend sanctions against the Russian Formula 1 driver Nikita Mazepin. Lewandowski argues that the court made a mistake in the factual assessment of the position of Nikita and took a too lenient approach.


Das Max-Planck-Institut für Rechtsgeschichte und Rechtstheorie in Frankfurt am Main ist mit seinen über 150 Mitarbeiter*innen ein weltweit führendes Forschungsinstitut im Bereich der juristischen Grundlagenforschung. 

Das Institut sucht zum 01.10.2023 oder zum nächstmöglichen Zeitpunkt

eine*n Leiter*in (m/w/d) (W2) einer Max-Planck-Forschungsgruppe

zum Thema „Die Wurzeln der Europäischen Union im Recht des Völkerbundes“.

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On the occasion of the beginning trialogue negotiations between the EU Commission, Council and Parliament on the draft regulation on transparency and targeting of political advertising, DANIEL HOLZNAGEL comments on that draft. He thinks that a broader debate is needed, especially since the current draft could affect anyone’s tweets.

At the end of last year, the draft for a European Media Freedom Act (EMFA) was published. To GÁBOR POLYÁK, this draft appears to address “the systematic erosion of media freedom in Hungary”. Polyák thus analyses the draft EMFA’s potential to respond to the Hungarian situation.

DAVID OWEN comments upon the Illegal Migration Bill which was introduced to the UK Parliament last week. He thinks it to be “the latest outburst of the Conservative government’s increasing hysteria […] in which Brexit-released fantasies of post-imperial sovereign power are acted out in the form of half-baked legislative proposals”.

Continuing last week’s discussion on Shamima Begum case, DEVYANI PRABHAT considers the Special Immigration Appeals Commission’s refusal to allow Begum’s appeal to be remarkable, since it grants a “nearly unlimited degree of discretion” to the UK’s Home Secretary to cancel citizenships, “even where human rights are at stake”. This, so Prabhat might leave victims of human trafficking without recourse to justice.

LUIGI FERRAJOLI gives his view on the tragedy of 73 people who were left to drown in Italian water of the Mediterranean Sea. Ferrajoli emphasises that migration is a fundamental human right (Art. 12 ICCPR) and warns that we are witnessing “a qualitative leap” of populism in Europe, towards a populism that is “wreaking havoc on the fabric of our democracy”.

TESSA GROSZ discusses the ECtHR decision Y v France. The court finds that refusing an intersex person’s request to change their gender registration to “neutral” or “intersex” does not currently violate their rights. Grosz fears that (as with the recognition of gender identity of trans persons before) it could still take a long time before adequate human rights protection is granted.

WEYMA LÜBBE looks at the issue of organised assisted suicide, a topic that is currently also being debated by the Bundestag. In light of the BVerfG ruling from 2020, Lübbe asks about the legal considerations that emerge from the ruling for loneliness-related assisted suicide.

Federal Constitutional Court judge Peter Müller, the rapporteur in charge of the order for a re-run of the elections in Berlin, announced last week that the reasons for the interim rejection of a new election were not expected until May. CHRISTIAN WALTER & PHILIP NEDELCU find this problematic. Especially since this, so the authors, blurs essential differences between urgent legal protection and substantive proceedings.


That’s it for this week. All the best to you!

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Max Steinbeis

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