Abstracts 4/2022 English

Risse, Horst: The decision of the Berlin Constitutional Court on the election of the Berlin House of Representatives 2021—the drama’s second act. 

On 26 September 2021, the administration of the city state of Berlin had to cope with the election of the state’s House of Representatives, the election of the Bundestag and a referendum.  Preparing for all of them  together amounted  to  a  large  number  of  organizational  shortcomings in the preparation and to an unusually large number of electoral errors . The Berlin Constitutional Court had to decide on numerous objections and by judgment of 16 November 2022 decreed that the election to the state parliament must be repeated in all of Berlin.  The errors were found to be  so  comprehensive  and  serious  that  only  a  complete  repetition was suitable to restore the damaged trust . This article summarizes the judgment’s main reasons as well as the dissenting opinion of one judge, and it examines whether the Berlin decision is consistent with the case law of the Federal Constitutional Court. It turns out that the Berlin court deviates from the principles developed by the Federal Constitutional Court on essential issues and that a preliminary ruling would therefore have been needed from Karlsruhe.  Whether or not the Bundestag  election  in  Berlin’s electoral districts, which was affected by the same organizational shortcomings, is valid, will be decided there, anyway . If Karlsruhe upholds its previous lines of argument, there is a risk of a seri-ous divergence between the jurisprudence of the two constitutional courts. [ZParl, vol. 53 (2022), no. 4, pp. 719 – 729]

Schindler, Danny and Oliver Kannenberg: The constitution of parliamentary party groups. Institutional varieties and change.

The formal rules of parliamentary party groups (PPGs), their standing orders or rules of procedure have received scant attention in political science even though they have implications beyond the groups themselves. The project SOPiP (Standing Orders of Parties in Parliament), which is conducted at the Institute for Parliamentary Research, seeks to close this gap from a longitudinal and cross-sectional perspective. The longitudinal perspective deals with the genesis and change of the PPGs’ rulebooks in Germany. The starting point are the groups in the first pan-German parliament, the Frankfurt Assembly 1848/1849, who established rules that similarly exist today. An international comparison of PPG constitutions reveals a huge institutional variety for such issues from leadership selection to voting unity. Furthermore, a case study of the SPD in the Bundestag is used to analyze the processes of standing order reforms. Various additional research questions illustrate paths for future comparative research as well the need for more in-depth analyses. [ZParl, vol. 53 (2022), no. 4, pp. 730 – 746]

Mai, Manfred: Working Groups of parliamentary groups. 

In the Bundestag and in the state parliaments, parliamentary party groups (PPGs) have set up working groups that more or less mirror parliamentary committees and  government  departments . They serve the purpose to prepare policy positions; hence, they are important institutions for forming opinions within their parliamentary group and for clarifying con-flicts, including those with the government. In the rather informal structure of working groups, several conflicting logics meet: party discipline, MPs’ ties to their constituencies, support for the government, and specialization. Working groups do not meet in public and there are hardly any reports about them. This arcane area offers an opportunity for open debate among MPs as well as between them and government officials attending the meet-ings . Working groups of the majority PPG(s) are also a mood barometer for the politics of the government and may serve as its supporters when it comes to asserting cabinet interests inside the parliamentary party. However, the informational and power imbalance between government and parliament is only reduced by working groups of the PPGs of the govern-mental majority because opposition working groups are not able to exchange information directly with government representatives. [ZParl, vol. 53 (2022), no. 4, pp. 747 – 756]

Leunig, Sven: Parliamentary Vice Presidents in the Bundestag and State Parliaments: (New) regulations and appointments overshadowed by the AfD.

Appointing vice presidents to the German state parliaments, as well as to the Bundestag, has come under greater public attention since the AfD has gained parliamentary representation. The AfD has often complained that it is prevented from exercising its right to nominate or appoint a vice president by the other parliamentary groups. This article examines the question of whether such rights actually exist and whether, as the AfD claims, changes have been made to constitutional provisions or parliamentary  rules  of  procedure  to  the detriment of the AfD since 2014 . This is put in relation to the results that AfD candidates achieved in vice presidential elections in each case. While it can be seen that the legal provisions have indeed been changed frequently since 2014, there are only few cases that ostensibly followed the goal of preventing AfD-MPs from candidacies for the office of Vice President. At the same time, however, parliamentarians in most cases exercised their right to refuse to approve AfD candidates. [ZParl, vol. 53 (2022), no. 4, pp. 757 – 776]

Feser, Andreas: Committees of inquiry live on TV—A contribution to enlightenment?

Demands for allowing audio and visual recordings during sessions of parliamentary inquiry committees to ensure better public information have been brought forward not only since the introduction of legislation on these commission some 20 years ago. While the law—with high legal hurdles—introduced the possibility during these sessions, actual recordings have only been allowed in very few cases. In the previous parliamentary term of the Bundestag, media reports stressed the demand for visual and audio recordings during the “Wire-card” inquiry. Making use of such recordings raises three fundamental issues with the conformity of inquiry proceedings: complying with important procedural principles, balancing competing rights of relevant parties as well as avoiding  possible  contradictions  of  the  inquiry committee ́s mandate . None of these three questions can be answered in a way that would support the general authorization of audio and visual documentation. Findings in psychology even suggest that there is an insolvable conflict between the unwanted influence of the mere knowledge about of television coverage on witnesses and the facts-based man-date of the committee. [ZParl, vol. 53 (2022), no. 4, pp. 777 – 793]

Singer, Jens Peter: Parliamentary control of the intelligence services. Balance sheet and outlook. 

For several decades, a juridification process of the work of the intelligence and secret ser-vices has been taking place in all Western democracies. During the mid-1970s, the Federal Republic of Germany, under a social-liberal coalition, began to create the legal basis for these special security authorities, namely to legally determine tasks and powers and to regulate their control. This process is still ongoing. In its more recent jurisdiction the Federal Constitutional Court required the legal regulations and the effectiveness of the control practice to be evaluated on a regular basis (BVerfGE 154, 152) . Despite four comprehensive reforms (1992, 1999, 2009 and 2016) as well as a few minor changes and without first evaluating the efficiency of these reforms, the current coalition of SPD, Greens and FDP intends to further reform the parliamentary control of the activities of the Federal Intelligence Service (BND), the Intelligence Service for the Protection of the Constitution (BfV), and the Federal Office for the Military Counterintelligence Service (MAD). The article presents and assesses the developments to date, contains an outlook on the forthcoming reform, and names the desiderata. [ZParl, vol. 53 (2022), no. 4, pp. 794 – 813]

Kleih, Björn-Christian: The interposed question to the privileged speaker. 

Both the German Bundestag and Baden-Württemberg’s State Parliament offer the opportunity to the Members of Parliament to interpose questions to the speaker. It is not uncommon to address such questions to members of the government, whose right to speech is constitutionally guaranteed. This article traces the formalization of the interposed question in both these Parliaments. The guiding principle of the said formalization was, on the one hand, to enliven parliamentary sittings and, on the other hand, to prevent interruptions by mere hecklings. It is against this backdrop—and on the occasion of a minister’s refusal to accept an interposed question—that the question is discussed on what legal grounds the President of the State Parliament may interrupt the privileged speaker in order to authorize an interposed question. This article comes to the conclusion that by interrupting the privileged speaker, the President of the State Parliament expresses a limitation inherently set by the State Constitution. This limitation is based on  the  avoidance  of disturbance  of  the  privileged speech . [ZParl, vol. 53 (2022), no. 4, pp. 814 – 830]

Kasseckert, Markus: Legislation on the Federal President’s retirement benefits in the light of parliamentary polarization.

Political science has shown little interest in the office of the Federal President, and the legislative processes that deal with the office itself have not been considered at all. And yet they are particularly interesting from a parliamentary-theoretical perspective. In former times, there was agreement on the principle that legislation concerning the Federal President would be dealt with in a harmonious fashion involving all parliamentary party groups and keeping it away from party-political calculations. The article focuses on the “Act on the Federal President’s Retirement Benefits”. A document analysis of the associated draft laws and plenary debates reveals how much the former principle has changed  because  of  the  changed party-political composition of the Bundestag . Against that backdrop, the present study supports the thesis that parliamentary polarization stands in the  way of  potential  reforms, particularly in this area . It seems unlikely that under the current party constellation, previous inter-party, discrete debates and unanimous votes in relation to the legislation on the office of the Federal President could be picked up on again, specifically when including all parliamentary groups currently represented in the Bundestag. [ZParl, vol. 53 (2022), no. 4, pp. 831 – 846]

Knelangen, Wilhelm and Sandra Brunsbach: The South Schleswig Voters’ Association (SSW) is represented in the Bundestag again—and can (probably) stay.

For the first time in more than 60 years, in 2021 the SSW won a seat in the Bundestag again. The SSW is the political party of the Danish minority and the national Frisians and is exempt from the five per cent threshold other parties are subjected to. Despite being an established party in the political system of Schleswig-Holstein since the state’s founding, the SSW refrained from contesting federal elections for many decades. The decision to par-ticipate in a federal election took many years of internal party discussions. Programmati-cally, the SSW belongs to the liberal and left-liberal spectrum. In the 2021 federal election, beyond addressing concerns of the national minorities, the party focused on representing the interests of the whole of Schleswig-Holstein. However, the strategy’s success was limited as the SSW received its strongest support  in  the  Schleswig  part  of  the  state,  the  home  region  of  the  national  minorities. If the proportional representation component with a  nationwide constituency remains decisive for winning parliamentary seats, the SSW has a good  chance  of  being  represented  in  the  Bundestag  in  subsequent  legislative periods . [ZParl, vol. 53 (2022), no. 4, pp. 847 – 866]

Kersting, Norbert and Jan Philipp Thomeczek: The 2021 German national parliamentary election.  A comparative study of party positions and voter preferences using  “Wahl-Kompass” data. The German voting advice application “Wahl-Kompass” allows the positioning of political parties in a political landscape with the two  dimensions  “conservative-traditional  versus  progressive ecological” and “redistribution versus personal responsibility” . Political parties are positioned based on party self-positioning  and  an analysis  of  the  party  manifestos .  Around 500,000 citizens used Wahl-Kompass, and around 15,000 participated in an additional voluntary survey. The analysis showed that in the policy areas of income taxation, housing regulations, and stricter climate change regulation, which were polarizing among the parties, party responsiveness (consensus between voters and party position) was relatively high among all  parties .  Reforms for a unitary pension  system  and  unitary  health  insurance are supported by a majority of voters of all parties . CDU/CSU and FDP party leaders, however, reject these proposals. [ZParl, vol. 53 (2022), no. 4, pp. 867 – 883]

Schäckelhoff, Henning: The coalition theory in the Merkel era. 

Since the early 1960s scholars have tried to figure out how to explain coalition building. Meanwhile the approaches broadened from the classic office and policy seeking theory to more elaborated theories that include more factors and variables. The latest development has been to look at the subnational level and identify the necessities for “conflict free” governance within federal states. This paper tries to show how the coalition building in the Merkel era was led by a strategy the author labels “smooth-governance seeking”. It embodies strategies well known from other theories but adds specific variables, which are necessary ingredients to explain and predict coalition building  within  the  German  political  party  system, with a stronger focus on the political institutional system . At the same time the participants are viewed in more detail and instead of following the established pattern of negotiating parties the approach concentrates on individuals who seek to produce the best outcome for themselves; and if  the  party  benefits  as  well  that  would  be  a  welcoming benefit. [ZParl, vol. 53 (2022), no. 4, pp. 884 – 900]

Kupka, Milena:  Are the Greens becoming a  new  catch-all  party?  A qualitative comparison of the German Green Party’s principle manifestos 2002 and 2020.

Parallel to the rise of the Fridays-For-Future-movement in 2018, the German party “Alli-ance 90/The Greens” was swept up in a wave of success. The influx of members and the electoral successes  achieved  are  attributed  to  the  professional  appearance  and  moderate  stance of the former federal party leaders, Robert Habeck and Annalena Baerbock. That the party also has changed some of its basic principles is reflected in the basic principle manifesto of 2020 where it claims that ‘to respect and to protect—change creates hold’. Over the past three years,  the  Greens  have  repeatedly  been  viewed  as  a  possible  new  catch-all  party . The extent to which this is an accurate classification was examined on the basis of a qualitative comparison between the 2002 and the 2020 basic principle manifestos. [ZParl, vol. 53 (2022), no. 4, pp. 901 – 914]

De Masi, Fabio: Dare more transparency in inquiry committees! A plea from practice. Inquiry committees are the opposition’s sharpest sword in the German Bundestag.

 In contrast to the European Parliament, the U.S. Congress, and other international examples, however, TV or Internet transmissions of witness hearings are not common in practice . In the German Bundestag, a double barrier to transmission exists and it consists of the concerned person’s consent as well  as  that  of  a  two-thirds  majority  in  the  committee.  The author argues in favor of facilitating TV or Internet transmissions of investigative commit-tees by elevating it to an opposition’s minority right while maintaining the requirement of witnesses’ consent to transmissions. That way witnesses could also protect themselves from media distorting their statements, while at the same time fact-finding by a critical public would be supported, and even help to avoid theatrical staging of investigative committees. [ZParl, vol. 53 (2022), no. 4, pp. 915 – 922]

Wolf, Sebastian: Should corruption in party candidate nominations be criminalized?

Taking a proposal of a  parliamentary  group  in  the  Landtag  of  the  Saarland  as  a  starting  point, the paper discusses pros and cons as well as legal options to criminalize bribery in the context  of  party  meetings  that  select candidates  for  general  elections .  The author argues that it is advisable to extend the criminal law to that effect. In this regard, well-defined new provisions in the German Political Parties Act are preferable to a general clause in the Criminal Code. [ZParl, vol. 53 (2022), no. 4, pp. 923 – 931]

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